United States v. Marshall Joseph Baldwin

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 11, 2005
No. 04-10508
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 03-00051-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARSHALL JOSEPH BALDWIN,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Alabama
_________________________
(May 11, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
This case is before the Court for consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). We previously affirmed Baldwin’s conviction and
sentence. See United States v. Baldwin, Case No. 04-10508 (11th Cir. Aug. 30,
2004) (unpublished). The Supreme Court vacated our prior decision and
remanded the case to us for further consideration in light of Booker.
In his initial brief on direct appeal, Baldwin did not assert error based on
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), or any other case extending or
applying the Apprendi principle. However, Baldwin sought permission to file an
amended brief to raise a claim the Guidelines were unconstitutional under Blakely
v. Washington, 124 S. Ct. 2531 (2004). We denied Baldwin’s motion to file an
amended brief.
In United States v. Dockery, 401 F.3d 1261, 1262–63 (11th Cir. 2005), after
the Supreme Court’s remand with instructions to reconsider our opinion in light of
Booker, we relied on our earlier case of United States v. Ardley, 242 F.3d 989(11th Cir.), cert. denied, 121 S. Ct. 2621 (2001), which observed:
Nothing in the Apprendi opinion requires or suggests that we are
obligated to consider an issue not raised in any of the briefs that
appellant has filed with us. Nor is there anything in the Supreme
Court’s remand order, which is cast in the usual language, requiring
that we treat the case as though the Apprendi issue had been timely
raised in this Court. In the absence of any requirement to the contrary
in either Apprendi or in the order remanding this case to us, we apply
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our well-established rule that issues and contentions not timely raised
in the briefs are deemed abandoned.
Ardley, 242 F.3d at 990 (citations omitted). Thus, because Dockery had not
asserted an Apprendi (or its progeny) challenge to his sentence, we reinstated our
previous opinion. Dockery, 401 F.3d at 1263.
In United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000), we denied
Nealy’s attempt to raise an Apprendi-based argument for the first time by filing a
supplemental brief. We noted that “[p]arties must submit all issues on appeal in
their initial briefs.” Nealy held supplemental briefs will be authorized only when
intervening decisions or new developments arise after the moving party’s brief has
been filed, and only when that new authority relates to an issue already properly
raised in the party’s initial brief. Nealy further held “parties cannot properly raise
new issues at supplemental briefing, even if the [new] issues arise based on the
intervening decisions or new developments cited in the supplemental authority.”
Id.Because Baldwin did not assert error based on Apprendi (or its progeny) in
his initial brief on appeal, we reinstate our previous opinion in this case and affirm
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Baldwin’s conviction and sentence after our reconsideration in light of Booker,
pursuant to the Supreme Court’s mandate.
OPINION REINSTATED IN PART; AFFIRMED IN PART.
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