United States v. John Howard Vanorden, Jr.

MARCUS, Before TJOFLAT and Judges, MUSGRAVE*, Circuit Judge. PER CURIAM: On November John Howard Va- norden, pled Jr. guilty to one count of receiving a depiction visual of a minor engaged sexually explicit conduct vio- 2252(a)(2). § lation of 18 U.S.C. The base offense level for this offense was seven- Sentencing teen. U.S. Guidelines Manual 2G2.2(a) § The district court add- ed two levels because the material involved depicted twelve, children under age § 2G2.2(b)(1), id. five levels because the “[djistribution offense involved for the re expectation ceipt, receipt, thing value, but not pecuniary gain,” id. 2G2.2(b)(2)(B), § four levels because the conduct, offense involved masochistic id. 2G2.2(b)(3), § and two levels because the offense computer, involved id. 2G2.2(b)(5). § The court subtracted three levels based acceptance Vanorden’s responsibility. §Id. adjust 3E1.1. These ments resulted in a total offense level of twenty-seven, yielded a guideline sentencing range of impris 70-87 months Barrist, onment Def., coupled Lori when E. Fed. Pub. with Vanorden’s West Beach, FL, Williams, Palm criminal history category Kathleen M. I. appeal, of On Def., Miami, FL, Fed. Pub. Brenda only G. Vanorden raised one issue: whether * Musgrave, R. Judge, designation. Kenton Honorable Trade, States sitting by Court of International remanding the order case enhancing had erred .or district 2G2.2(b)(2)(B),' us, su- apply § our well-established rule under his sentence did guideline timely pra, because issues and contentions raise a consti- did not conduct. He raised in the briefs are deemed aban- his based on challenge to sentence tutional doned. by to a trial right Amendment the Sixth (quoting at 1262-63 v. Id. United States Jersey, 530 U.S. v. New

jury, Apprendi 989, 990, Ardley, reh’g 242 F.3d en banc (11th Cir.2001)). denied, Be- 273 F.3d 991 (2000), Washington, v. Blakely challenge Vanorden did not sen- cause (2003), L.Ed.2d 309 124 157 S.Ct. Am.en.dmen.t-Apprendi- tence on Sixth Booker, U.S. -, v. 543 or States United Blakely-Booker trip in grounds his first (2005).1 L.Ed.2d 621 125 160 S.Ct. circuit, through argument is lone claim and rejected Vanorden’s We Accordingly, abandoned.” we re- “deemed in unpublished an affirmed his sentence previous opinion our and AFFIRM instate Vanorden, v. 99 opinion. United States (11th 2004). Vanorden’s sentence. Apr.2, Cir. Appx. Fed. peti filed a TJOFLAT, thereafter Judge,

Vanorden Circuit specially January of On tion for a certiorari. writ concurring: granted Supreme Court Va- judgment panel in the of the concur decision, our petition, vacated norden’s See, by Dockery. are because we bound case, “for further con remanded Machado, States 804 F.2d e.g., United of Vanor [Booker].” sideration in light (11th Cir.1986) (“Only a deci- States, U.S. -, den v. United sitting by this court en banc or sion 1040, 160 L.Ed.2d 1026 Un Supreme can United States overrule decision in States der our recent decision.”). If writ- panel a we were prior (11th Cir.2005), F.3d 1261 Dockery, 401 slate, I ing on a clean would consider however, light in “further consideration As Vanorden’s Booker claim. merits of actually require any

Booker” does not notes, Dockery concludes that panel of Vanorden’s consideration merits or nothing in Booker itself in either claim: Booker remanding Supreme Court order standard opinion requires Nothing in the [Booker] in a consideration case “for further obligated we are suggests or we “requires suggests or [Booker]” any not raised consider an issue claim consider” Booker obligated with us. appellant briefs that has filed ini- the defendant’s that was not anything Nor there Dockery, such tial brief on Under order, cast in Court’s remand which if the “deemed abandoned” even claim is language, requiring usual initial brief was filed before defendant’s though the treat the case as [Booker] decided, at Blakely were and Booker timely raised issue had been every had other circuit time this any require- Court. In the absence arguments. rejected identical contrary squarely [Booker\ to the either ment omission, calculations, ... the ulti- Guidelines when certainly 1. This understandable Blakely imposed had been de- exceed the neither does not nor sentence mate cided, then-controlling precedent circuit statutory penalty,” maximum Unit- prescribed right to a trial Sanchez, Sixth Amendment held 269 F.3d ed States explicated Apprendi, no jury, "ha[d] Cir.2001) banc). (en to, on, Sentencing application effect Dockery, (quoting holdings 401 F.3d at 1262-63 the Sixth Amendment —both 990). holding Ardley, interpretation remedial [its] Sentencing Act—to all cases on direct strange This is rule we have: a case Booker, (empha- review.” at 769 in which the Court has vacated added). words, sis In other Dockery finds our “for further decision for consideration nothing in specific Court’s in light precisely because we [Booker]” directive that we must Booker to all did not have the benefit of Booker when suggests cases direct review that even decision, we rendered our first we decline that we should address Booker claims in actually consider the. Booker issue (ie., this subset of cases on direct review ground that it not raised when we was cases which the defendant’s initial brief I issued that first decision. As have ex- did a Booker-type not contain claim for the elsewhere, plained it is a very bad imminently sensible reason that such a rule, only it not as inconsistent with rejected claim had every been each and precedent Supreme Court and the law'of circuit). have, say Other circuits circuit, every encourages other but also least, read Booker’s differently. instruction defendant-appellants to raise frivolous Ameline, E.g., United States v. 409 F.3d squarely claims that are foreclosed cir- (9th Cir.2005) (en banc) 1073, (“Book- cuit Supreme precedent Court on the er explicitly holding applies stated that its off an unanticipated chance that decision to all cases pending on direct suddenly will make them viable. See Booker, 125 at 769. S.Ct. Even where the Levy, 1327, United States 391 F.3d filed by parties briefs not do raise a (11th Cir.2004) J., (Tjoflat, 1335-51 dis objection, Booker we conclude that the is- rehearing from the en senting denial may sue be raised and should be consid- banc); at Ardley, 273 F.3d 995-1007 ered.”); United v. Washington, Slates J., (Tjoflat, from dissenting the denial of (“Al- Cir.2005) F.3d 312 n. 7 banc). Nonetheless, rehearing is a en it though appellate not contentions raised in strange,- bad rule that is the law of the an opening normally brief are deemed to circuit, so I concur than rather dissent. waived, have been principles (1) briefly separately why write to explain apply proceeding in this because the Court particularly it is troubling that this specifically mandated that apply we ‘must continues to refuse to address Booker ... [Booker] all cases on direct re- ” (i.e., claims in “GVR” cases cases which (citation omitted) Booker, view.’ (quoting granted Court has the .defen- 769)). at S.Ct. certiorari, dant’s petition vacated the sure, To go the Booker Court did court, prior judgment of and remand- say “expeet[ed] it reviewing courts ed further consideration to apply ordinary prudential doctrines, de- Booker) practical consequences termining, for example, whether the issue of our rule. was raised below and whether it fails the begin with, To agree ‘plain-error’ test.” 125 769. And Dockery’s, “[njothing in determination that the Supreme Court has also said that the opinion requires or suggests [Booker] general principle that decision concern- obligated we are an consider issue ing prosecutions the conduct criminal in any that appel- the briefs applied must be to all still pending cases lant Dockery, has filed with us.” 401 F.3d “subject, course, on direct review is 990). at 1262 (quoting Ardley, 242 waiver, principles of established harmless Booker, clearly Court in- error, Louisiana, and the like.” Shea v. 4,105 structed “we must 1065, 1069 [Booker’s] 470 n. n. ” (1985).1 .right.’ ment or abandonment of known- qualifica- These L.Ed.2d 38 Olano, not, 507 U.S. how- United States principle do general tions First, 1770, 1777, 123 L.Ed.2d 508 ever, the rule this case. implicate Zerbst, (1993) (quoting “ordinary an Johnson Dockery is not followed fact, L.Ed. doctrine”; quite it is a prudential (1938)). Thus, did Vanorden forfeit while rule in that we invented ordinary extra by failing “timely as- his Booker claim ago and it has not been only years four his means that review in Levy, sert[ ]” it—which by any other circuit. See followed only J., plain should be for error (Tjoflat, dissenting case 391 F.3d 1343-48 —it banc). he it. At has not “waived” clear the denial from supposed place— waiver took Second, claim is time the the fact that Vanorden’s lawyer Vanorden’s filed principles of when initial “subject to established Blakely and Booker April brief because Vanorden inapposite waiver” 2003— ,had decided,2 yet circuit plausibly be been nothing that can has done squarely, rejected every other had As the construed a “waiver.” It, “[wjaiver arguments. Blakely/Booker-type is different explained, has therefore, say it makes no sense to that is the Whereas forfeiture from forfeiture. “intentionally] relinquish[ed]” of a Vanorden timely failure to make the assertion ; In right.3 Amendment relinquish- ‘intentional Sixth is the right, waiver “known” over, Procedure years Federal Rule of Criminal two before Shea was decided 1. Griffith 52(b) 314, 708, to plain-error extends review all issues Kentucky, 107 S.Ct. 93 479 U.S. (and just they have waived not (1987), unless been 649 which was the first Su- L.Ed.2d defendant, Olano, forfeited) that, by 507 the see excep- without preme Court case to hold 732-34, at at waiv- tion, 113 S.Ct. 1777. The the conduct of criminal "a new rule for is thus crucial. See retroactively distinction applied to to prosecutions is be er/forfeiture 7, Levy, federal, generally n. 1341-43 cases, 391 F.3d 1339 direct pending or on all stale J., dissenting re- (Tjoflat, from the denial of yet or not final.” Id. review banc). My point hearing of this en discussion at 716. following response the concur- drew the from April opening brief was filed 2. Vanorden’s rence: petition attempts three weeks before a dis- about The dissent ... to make forfeiture, waiver, Blakely, Petition for certiorari was filed in see .and between tinction Certiorari, (No. However, Blakely 02- for a Writ of dissent mis- the abandonment. 1632), and six months before the not about the The issue is understands issue. Washington, Blakely- granted petition, Blakely v. Levy’s the failure raise whether waiver, necessarily type 540 U.S. constitutes issue forfeiture, Rather, is- or abandonment. apply well- sue whether-this Court .its will n agreed expressly have 3. Several other circuits is, rules; procedural established E.g., is not a “waiver.” that such an omission will consider claims raised in -Court not Vazquez-Rivera, 407 F.3d United States were never petition for (1st Cir.2005); United States Mace 487-88 form, raised, any a defendant's initial do, Cir.2005); F.3d direct brief on McDaniel, 540, 546-47(6th States v. issue attempts to confuse the . The dissent Cir.2005). waiv- by discussing between the difference er, forfeiture, issue and The my Levy, explain abandonment. tried In dissent in power to this Court has the is not "waiver” "forfeiture” whether difference between and the initial not raised in significance a new consider issues and in this context: its Rather, Court, brief; prose- it does. concerning of course criminal constitutional rule economy judicial and out applies pending then of concerns all cases cutions adopt apply pro- finality, has elected and direct review unless the defendant has waived claim, equally. forfeited) universally This (and just supra cedural .rules see consistent, and, npl logical text; only but a fair accompanying note 1 and more- sum, day the rule that Vanor- bars one late. The district held “ordinary den’s claim is not an any Booker this mistake barred appeal because doctrine,” and prudential because Vanor- did not neglect” constitute “excusable un- claim, nothing 4(b). den to “waive” his has done Shortly der Rule before the district does, fact, obligate decision, to consid- us court’s Court had Dockery’s contrary er it. conclusion to the comparable held that attorney negligence erroneous should corrected neglect” could establish “excusable under banc sitting this court the Su- rules; however, the bankruptcy that opin- preme Court. ion was cited in briefs district court or the district court’s deci- agree the conclusion court, sion. On parties Dockery reached nothing disputed applicability bankrupt- Supreme Court’s standard GVR order re- cy decision in the criminal context. We quires tous consider claims such as Vanor- affirmed oral argument without or written precise significance The den’s. of these By opinion. the time the case reached something always orders has been of a Court, however, all six circuits to mystery,4 but the Supreme Court’s discus- address the had issue held that the “excus- power in sion of its GVR Stutson v. United neglect” States, able standard articulated in the bankruptcy (1996), case also applied the crimi- implies L.Ed.2d nonetheless context, nal disregard Government should not claims had even like Stutson, changed its position agree the one here. with those presented after 194-95, circuits. id. at defendant was convicted of cocaine See possession and 601-02. Court sentenced 292 months in The concluded that “this prison, exceptional attorney ap his filed his notice of combination of circumstances court, peal in the district than presented] ample justification rather for a GVR (as appeals of required by the court Feder though order” —even the GVR “for was 4(b)), al Appellate Rule of Procedure and further consideration in of’ light an opin- Supreme forfeiture," Olano, extension of the Court’s decision different from 1773; in Shea. contrary to the con- J., (Hull, concurring Id. at 1334-35 in the position, currence's freely the terms not banc). denial of interchangeable. My discussion was not intended to "con- understand, course, Heilman, See generally 4. anyone. fuse” Arthur D. Su- of that The preme Thoughts: Second the issues-not-briefed-are-waived Court’s rule does Remands for distinction; not on Reconsideration and turn the Denials Review waiver/forfeiture of rather, Decisions, application Plenary Cases Held simply Hastings turns its wheth- L.Q. (1983); Const. Henry City er the was in see point issue the brief. The also was Hill, 776, 776-77, endeavoring Rock Griffith., to make that is because of Shea, distinction, Olano do 12 L.Ed.2d (stating and turn on this that go along we a GVR merrily appropriate is "adopting] when the Court and is "not n applying] procedural way certain that the case rules” in a was free from all that obsta- end, intervening cles to precedent” conflicts with those reversal on an decisions. In the the intervening essence the but the position "sufficiently of is concurrence’s was that decision and, (a) analogous require perhaps, our knowing compel rule does a decisive to not and (b) intelligent case”); logical waiver of the and is "but a re-examination Robert L. Stern al., Supreme of the et Supreme extension Court’s decision in Court Practice credit, ed.2002) (stating Shea." To its the that Supreme concurrence did when the GVR, position concede that its was an "extension” Court issues a being "the lower court is precedent. prob- Court simply But told the to reconsider entire the case in light lem that remains this extension intervening is neither precedent —which "logical” "[wjaiver justifiable nor may result”). may compel is not a different power of the Government in ing filed coercive addressed the briefs ion was imprisonment,” it is not too below, Government the form of though the and even error, merely make but disa- much to ask the minor had confessed position. necessary Id. accommodations” litigating “procedural previous vowed its 195-96,116 any portion at 602. to determine whether imprisonment violates the sentence scope holding concerning Stutsoris The has Constitution. Court is, of power Court’s GVR consistently identified the end of defen- course, its here. But some of not relevant appeal point at which dant’s direct is purpose those orders discussion of systemic finality surpass interests emphasized, The first instructive. benefitting interest from a defendant’s insignificant [I]t By new rule of constitutional law.5 refus- subject litigant case. criminal When to consider claims such as Vanor- ing continuing power to the coercive den’s, essentially said we have imprison- form of Government wrong balance Supreme Court struck ment, legal reflect a cer- our traditions brief opening that the defendant’s rights, for his tain solicitude tipping point. should be the Be- judicial public interests important our reevaluation is based on noth- cause finality occasionally efficiency and must “dry more than ing “convenience” previously have be accommodated. We formalism,” it the im- is inconsistent with technicalities refused allow aspect[s]” of portant and “familiar “our prejudice prosecution to the caused no emphasizes. traditions” Stutson legal “in the preclude a inter- remand justice.” procedural explained And accom- The Court also some ests of Stutson prisoners are a familiar modations for the GVR order issued: of the reasons .... aspect jurisprudence of our guarantees petitioner order “a GVR rights of his full and fair consideration efficiency finality are im- Judicial values, of all considerations” and power pertinent and our GVR portant respects con- “promotes fairness “[m]ere should not be exercised dry “But formalism should of en- dignity Appeals venience.” of the Court procedural not sterilize resources which relevant abling potentially it to consider to fed- Congress has made available were not arguments and that decisions Stutson, eral courts.” it.” 516 U.S. at previously before 197, aspects 116 at Three S.Ct. 603. (citations 196-97, at 116 at 603 Id. S.Ct. are in- of the GVR order description omitted) Georgia, 450 (quoting Wood First, “guarantee[ ... ] to structive here: 1097, 1100, 265, 5, 261, n. U.S. per- of a and fair consideration” all full (1981), 5, and Adams n. permit “rights” implies more than McCann, son’s rel. 317 United States ex previously of those issues that were 274, 239, review 87 L.Ed. 63 S.Ct. Second, appeals. in (1942)). the court of apply concerns with 268 These “promote[ ] order does not fairness” of the fact GVR equal force here. view give appeals if court of refuses “subject to the continu- that Vanorden 288, 310, announced.”); Lane, Griffith, U.S. at 479 E.g., rules are Teague 489 U.S. 109 5. (1989) (“a 334 L.Ed.2d new rule 103 716 (“Unless they exception to the fall within an ap- to be prosecutions is conduct of criminal rule, general cases, new constitutional rules of crim- retroactively or feder- plied to all state procedure applicable be to those inal will not final”). al, yet pending direct or not on review cases have before the new become final 1328 of’ light

case “further consideration form the basis of an ineffective GVR, claim, very triggered that see 391 Levy, decision assistance counsel (Hull, J., then no than concurring the defendant is better off he F.3d 1334 n. 3 Third, banc); pur- rehearing Ardley, was GVR. if one the denial of en before the (Carnes, J., order is for the court of F.3d at pose concurring of a GVR 993-94 banc).7 denial appeals arguments rehearing “to consider en The it,” rule, therefore, then of our previously upshot were not before is that a purpose failing thwart that consider Court decision that we are di Thus, retroactively like to apply Booker issues cases this one. rected to all cases Booker, clearly review, is not controlling, pending e.g., still on although Stutson direct suggest 769; Griffith, that GVR orders 125 S.Ct. at its rationale does U.S. at than court significant apply has 107 S.Ct. at will not at all to are more willing to admit. cases on direct like been review this one.8 Lastly, Ardley- disagree it clear that our I continue to must the rule we Levy6-Dockery especially giv- line eases is all apply case for the reasons an pernicious my Levy Ardley. because constitutes abso en in dissents and lute, explained here, bar to claims such across-the-board As this rule particular- ly problematic applied as the one we refuse consider here. on when to cases now These claims are barred on both di from Hope- remand Court. review, they banc, collateral appeal fully, sitting rect this court en or review; rather, judg simply observing 6. The Court has vacated the eral am Levy, they States v. here that it is ment in United all but certain will fail (1) (11th Cir.2004), district court and this court remanded for further appeal will be bound to conclude Levy of Booker. v. Unit consideration in U.S. -, apply States, refusal Boolceron direct was ed entirely proper, and six of the twelve L.Ed.2d 272 judges joined opinion on this court an concur- ring in the denial of banc review, appellate an court 7. If on direct im- Ardley Levy either that stated that this sort apply properly retroactively, refuses of "waiver” will not constitute ineffective as- conducting “then collateral review of sistance counsel. rectify such a should error conviction Shea, retroactively.” [Booker] Stutson, contrast, supra, 8.In it was at least Thus, S.Ct. at 58 n. 1069 n. 4. clear the defendant was left with an review, collateral defendant such as Vanor- ineffective assistance claim even Su- if the argument den will have a substantial preme Court GVR did not his direct apply retroactively. Booker should have no generally Flores-Ortega, See Roe v. doubt that most such will defendants make 470, 480, 484, argument, district courts in this (2000) (holding that coun- claims, adjudicate circuit will have their timely sel's failure to file a notice of will least have deal consulting first without the defendant consti- applications them in the form for certifi- (1) tutes ineffective if assistance "there is rea- appealability. cates of The same is true with son to think rational defendant respect to ineffective assistance claims based appeal” would want to or the him- defendant Booker-type on counsel's failure to raise a "reasonably self demonstrated to counsel claim opening in the defendant’s brief. Al- appealing” he was interested in there succeed, though unlikely these claims probability is a reasonable that the defendant they litigated, surely particularly given will appealed would have but for counsel’s failure that we have characterized him). Nonetheless, counsel’s omission to consult possibility as a "waiver” of substan- emphasized that “convenience” and Thus, tially saying lower sentence. I am not way "formalism” should not stand in the considering that these will not be claims collat- his claim on direct Court, correct will soon However, panel practice. so, I concur not free to do court is judgment. America, STATES

UNITED

Plaintiff-Appellee, KING, Defendant-

Dexter Deontate

Appellant.

No. 04-14021. Appeals,

United States Court

Eleventh Circuit. 30, 2005.

June Dunn, Lyn Jeffrey Er-

Mildred Geckler Kearns, Stephanie Fed. Pub. De- tel and fenders, Inc., At- Program, Defender Fed. lanta, GA, Defendant-Appellant. Swift, Weil, Levin Amy Jane Wilcox GA, Atlanta, Plaintiff-Ap- Atty., pellee. KRAVITCH,

Before TJOFLAT MILLS*, District Judges, and Circuit Judge.

PER CURIAM: court sen July the district On totaling terms appellant prison tenced of 18 U.S.C. for violations months 1951, 2113(a), 924(c)(1)(A)(iii), §§ * Mills, designation. sitting by States Dis- Richard Honorable Illinois, Judge the Central District of trict

Case Details

Case Name: United States v. John Howard Vanorden, Jr.

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jun 30, 2005

Citation: 414 F.3d 1321

Docket Number: 03-11083

Court Abbreviation: 11th Cir.