United States v. Curtis

380 F.3d 1308

11th Cir.

2004

Check Treatment

Docket

UNITED STATES оf America, Plaintiff-Appellee, v. Garland George CURTIS, Defendant-Appellant.

No. 02-16224.

United States Court of Appeals, Eleventh Circuit.

Aug. 10, 2004.

is made in favor of a person who is not a party to the action, that person may enforce obedience to the order by the same process as if a party,” we nonetheless found that the white school teacher was not within the “zonе of interests” protected by the district court‘s order.

Moore, 625 F.2d at 34 (quoting ). By contrast, as noted above, the reсlassification provisions of the Consent Decree relied upon by the Adams intervenors in this case are race-neutral (though, to repeat, Article 15 also provides that race-neutral reclassification shall not come at the expense of ALDOT‘s African-American employees). The Adams intervenors are within the “zone of interests” that the Consent Decree was designed to protect.

Finally, we note that the Supreme Court‘s Title VII jurisprudence does not bar the Adams intervenors from bringing their civil contempt claims. In the aftermath of

Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989) and other decisions, Congress promulgated the Civil Rights Act of 1991, which amended Title VII to provide that

[n]o order of the [district] court shall require the hiring, reinstatement, or promotion of an individual as an employee ... if such individual ... was refused employment or advancement ... for any reason other than discrimination on account of race, color, religion, sex, or national origin ...

42 U.S.C. § 2000e-5. In

Local Number 93, International Ass‘n of Firefighters v. Cleveland, 478 U.S. 501, 515, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986), however, the Court held that a consent decree is not an “order” within the meaning of the provision just quoted. Thus, Title VII does not prevent a district court from approving a consent decree that requires a defendant to advance an employee for a reason ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍other than racial discrimination. And if a district court is permitted to enter а consent decree to this effect, we see no basis in Title VII or elsewhere for prohibiting the court from issuing any subsequent orders necessary to enforce such a decree.

We thus find no error in the district court‘s referral of the Adams intervenors’ motion for contempt enforcement to a special master who, in acсordance with the court‘s previous order of June 16, 1997, shall implement the Article 15 reclassification in light of the relevant employees’ job duties as they existed on Mаrch 16, 1994.

AFFIRMED.

Rosemary T. Cakmis, R. Fletcher Peacock and James T. Skuthan (Fed. Pub. Defenders), Orlando, FL, Maria Guzman (Fed. Pub. Def.), Tampa, FL, for Curtis.

Linda Julin McNamara, Tamra Phipps, Tampa, FL, Susan H. Raab, Jacksonville, FL, for U.S.

Before ANDERSON, BLACK and HILL, Circuit Judges.

BY THE COURT:

On July 19, 2004, after oral argument but prior to disposition on the merits of his direct appeal, Garland George Curtis filed a motion for leave to file a supplemental brief asserting, for the first time, a challenge to this sentence. Curtis seeks to argue that his sentencing enhancements were unconstitutional under

Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). For the following reasons, we deny the motion.

I.

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Unitеd States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” In June 2004, the Court extended this rule to include state sentences that are not beyond the statutory maximum. . Although he raised no issue at all regarding his sentence in his initial brief, reply brief, or at oral argument, Curtis now seeks to file a supplemental brief prior to our decision on the merits of his appeal, arguing that his sentencing enhancements were unconstitutional.¹

We have recently denied a petition for rehearing based upon a newly asserted Blakely claim.

United States v. Levy, 377 F.3d 259, 2004 WL 1699920 (11th Cir. 2004). We explained that the long-standing rulе in this circuit has been that we do not consider issues or arguments raised for the first time on petition for rehearing. (citing inter alia ; ; ). Levy applies this rule in the context of a Blakely claim raised for the first time in a petition for rehearing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍after an appellate decision on the merits.

Levy and the cases relied upon therein based their decisions upon the equally long-standing rule in this circuit, as well as in the federal rules themselves, that issues not raised by a defendant in his initial brief on appeal are deemed waived. See also

United States v. Ford, 270 F.3d 1346, 1347 (11th Cir.2001) (“[O]ur well established rule is that issues and contentions not timely raised in the briefs are deemed abandoned“); (“[S]ince Wilkerson did not raise this issue until her supplemental reply brief, we deem it abandoned....“); (“[W]e apрly our well-established rule that issues and contentions not timely raised in the briefs are deemed abandoned“). See also Fed.R.App.P. 28(a)(5) (parties must submit all issues on appeal in their initiаl briefs); 11th Cir. R. 28-1, I.O.P.-5 (supplemental briefs may be filed only with the court‘s permission, which will be granted only when intervening decisions or new developments related to an issue already properly raised in the party‘s initial brief).

This rule does not apply differently in a case, such as this, where the motion is to file a supplemental brief raising an issue for the first time prior to a decision on the merits of the direct appeal. We have so held in the context of an Apprendi-based claim raised for the first time in supplemental briefing prior to the decision on the merits.

United States v. Nealy, 232 F.3d 825, 830 (11th Cir.2000). In Nealy, the defendant raised one sentencing issue in his initial ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍brief. Shortly thereafter, the Supreme Court decided Apprendi, and we ordered supplemental briefing regarding the effect of Apprendi on defendant‘s previously raised sentencing claim. In his supplemental brief, defendant attempted to assert a totally new, but Apprendi-based, attack on his sentence. We refused to consider the newly-asserted claim, even though it was raised under Apprendi, because “[p]arties must submit all issues on appeal in their initial briеfs.” We made clear then that an appellant abandons any claim, including an Apprendi claim, not raised in his initial brief. See also ; .

Curtis’ motion requires us to decide if this long-standing rule that issues not properly raised in an initial briеf are deemed abandoned applies in the context of a Blakely-based claim sought to be raised by way of supplemental briefing. We hold that it does. In this appеal of his conviction, Curtis raised no issue whatsoever with respect to his sentencing in his initial brief. He now seeks to file a sup-plemental brief attacking that sentencе for the first time based upon the Supreme Court‘s decision in Blakely. Inasmuch as he failed to raise this issue in his initial ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍brief, he has waived the right to do so now.

Levy, 379 F.3d at 1241; ; . We also discern no miscarriage of justice that would result on account of Curtis’ inability to raise his proposed Blakely issue. See .² Accordingly, the motion to file a supplemental brief raising a Blakely claim will be denied.

II.

Appellant‘s motion to file a supplemental brief attacking his sentence based upon the Supreme Court‘s decision in Blakely v. Washington is DENIED.

Notes

Curtis received enhancements based upon two facts found by the sentencing judge—obstruction of justice and vulnerable witness.

Curtis not only failed to raise this issue in a timely manner on appeal, but also failed to raise the issue in the distriсt court or at sentencing. Therefore, even if the issue had been adequately raised on appeal, we would have been limited to plain error review. To find reversible error under the plain error standard, we must conclude that (1) an error occurred, (2) the error was plain, (3) the error affected substantial rights, and (4) that failurе to correct the error would result in a miscarriage of justice or where the error so seriously affects the fairness, integrity or public reputation of judicial proceedings. (quotations and citations omitted). With respect to the second prong, we cannot conclude that it is obvious from Blakely that it applies to the Fedеral Sentencing Guidelines; there is considerable disagreement amongst jurists and amongst the circuits: compare (2-1 decision) (holding that Blakely applies to sentences imposed under the Fеderal Sentencing Guidelines over a dissent by Judge Easterbrook espousing the opposing view), (2-1 decision) (holding that Blakely applies to sentences imposed under the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Federal Sentenсing Guidelines), and (2-1 decision) (holding that Blakely rendered the Federal Sentencing Guidelines unconstitutional) with, (holding that Blakely does not apply to the Federal Sentencing Guidelines) and (en banc) (unpublished order with majority and dissenting opinions forthcoming) (holding that Blakely did not operate tо invalidate the appellant‘s sentence). See also (en banc) (certifying question of Blakely‘s application to the Supreme Court). With respect to the fourth prong, we discern no miscarriаge of justice in the case, nor do we believe this case presents a situation that seriously affects the fairness, integrity or public reputation of judicial proceedings. Accordingly, as an alternative basis for our decision, we conclude that Curtis has failed to demonstrate plain error.