United States v. David Franklin Cotney, Jr.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-15473 September 12, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 03-00078-CR-E
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID FRANKLIN COTNEY, JR.
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Middle District of Alabama
________________________
(September 12, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before BLACK, CARNES and PRYOR, 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 Cotney’s sentence. See
United States v. Cotney, Case No. 03-15473 (11th Cir. Sept. 15, 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(unpublished).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, Cotney 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, Cotney sought permission to file a
supplemental brief to present additional arguments concerning Blakely v.
Washington, 124 S. Ct. 2531 (2004). We denied Cotney’s motion.
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
our well-established rule that issues and contentions not timely raised
in the briefs are deemed abandoned.
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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 Cotney 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
Cotney’s 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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