United States v. Ardley

242 F.3d 989

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 20, 2001
• Docket: 98-7033
• Status: Published

Opinion

[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

2 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.