United States v. Ardley

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 20 2001
THOMAS K. KAHN
No. 98-7033 CLERK
________________________
D. C. Docket No. 97-00251-CR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BARRY LEON ARDLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(February 20, 2001)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before CARNES, MARCUS and COX, Circuit Judges.
PER CURIAM:
We have previously affirmed the conviction and sentence in this case. See
United States v. Ardley, No. 98-7033 (11th Cir. Nov. 18, 1999). The Supreme
Court has vacated our prior judgment and remanded the case to us for further
consideration in light of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Having
reconsidered our decision pursuant to the Supreme Court’s instructions, we
reinstate our judgment affirming the conviction and sentence.
Ardley did not raise the Apprendi issue when the case was before us prior to
the certiorari petition being filed. He did not mention that issue in his initial brief,
his reply brief, or in the suggestion for rehearing en banc that he filed. 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. See United States v. Miller, 492 F.2d 37, 40 (5th Cir. 1974) (noting
when Supreme Court vacates and remands case for reconsideration in light of one
its opinions, that action does not imply any particular result because “had [a
particular result] been the [Supreme] Court’s desire, certiorari could have been
granted and this case summarily reversed on the authority of [the opinion in light
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of which this Court was to reconsider the case], rather than being remanded for
further consideration”).
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. Hartsfield v.
Lemacks, 50 F.3d 950, 953 (11th Cir. 1995) (“We note that issues that clearly are
not designated in the initial brief ordinarily are considered abandoned.”) (quotation
marks and citation omitted); Marek v. Singletary, 62 F.3d 1295, 1298 n.2 (11th
Cir. 1995) (“Issues not clearly raised in the briefs are considered abandoned.”);
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).
We have recently applied this rule to Apprendi issues. See United States v. Nealy,
232 F.3d 825, 830 (11th Cir. 2000) (“Defendant abandoned the [Apprendi]
indictment issue by not raising the issue in his initial brief.”).
Our opinion affirming the conviction and sentence, United States v. Ardley,
No. 98-7033 (11th Cir. Nov. 18, 1999), is REINSTATED.
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