                                                                    [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT                    FILED
                     ________________________         U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                        NOVEMBER 20, 2001
                            No. 98-7033                  THOMAS K. KAHN
                      _______________________                 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
                       _______________________
                          (November 20, 2001)

              ON PETITION FOR REHEARING EN BANC

                      (Opinion February 20, 2001)
Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON,
Circuit Judges.


O R D E R:

      The Court having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular active service not

having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED.



                                       /s/ R. LANIER ANDERSON
                                       CHIEF JUDGE




                                         2
CARNES, Circuit Judge, Concurring in the Denial of Rehearing En Banc, in which
BLACK, HULL and MARCUS, Circuit Judges, join:

      Our dissenting colleague has written much expressing his disagreement with

the panel opinion in this case and his disappointment about the refusal of the en

banc court to vacate the panel decision. We resist the temptation to write as much

and respond only briefly.

                                          I.

      As the dissent concedes, the rule requiring that issues be raised in opening

briefs is well-established. See United States v. Ardley, 242 F.3d 989, 990 (11th Cir.

2001) (collecting cases). That rule serves valuable purposes, as do all of the

procedural default rules, which is why we regularly apply them. See generally

Presnell v. Kemp, 835 F.2d 1567, 1573-74 (11th Cir. 1988). The principal concern

of the dissent seems to be that applying this specific procedural default rule in this

particular context somehow conflicts with the doctrine that Supreme Court

decisions are to be retroactively applied to cases on direct appeal. But that concern

conflates the two doctrines. They are separate and each plays a different role,

answering a different question.

      Retroactivity doctrine answers the question of which cases a new decision

applies to, assuming that the issue involving that new decision has been timely

raised and preserved. Procedural bar doctrine answers the question of whether an

                                          3
issue was timely raised and preserved, and if not, whether it should be decided

anyway. It makes no more sense to say that a procedural bar should not be applied

in this situation because doing so undermines or frustrates retroactive application

of a Supreme Court decision, than it does to say that procedural bars should not be

applied in any situation because doing so undermines or frustrates the

constitutional doctrines and commands underlying the issue that is held to be

defaulted. We routinely hold that constitutional issues based upon Supreme Court

decisions applicable to trials occurring after those decisions are issued are

nonetheless procedurally barred if they were not raised in a timely and appropriate

fashion. No one has suggested, so far as we know, that procedural bars should not

be enforced in that context because doing so undermines or frustrates the doctrine

that Supreme Court decisions should be applied to all trials occurring after the

decisions are issued.

      If the dissent’s position were adopted, no procedural bar could ever be

enforced because doing so would undermine or frustrate whatever values or

doctrines underlie the constitutional or statutory provisions being belatedly

asserted. Why should we give more protection against procedural default to the

principles underlying the general doctrine established by retroactivity decisions

than we do to the doctrines established by any other decisions of the Supreme


                                          4
Court, or than we do to the Fourth, Fifth, or Sixth Amendments, or any other

constitutional provisions? We do not think we should.

      As a final point on the retroactivity matter, we note that the dissent’s

position is more than a little inconsistent. It recognizes that Apprendi issues not

timely raised at trial should be reviewed only for plain error, which is another way

of saying that trial level procedural defaults should be enforced in the usual way

notwithstanding the retroactive applicability of the Apprendi decision to all cases

pending at the time it was announced. Plain error review is much more narrow

than the review that is conducted when there has been no procedural default. See

United States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999)(“our power to

review for plain error is ‘limited’ and ‘circumscribed.’”); United States v. Pielago,

135 F.3d 703, 708 (11th Cir. 1998) (“The plain error rule places a daunting obstacle

before [the appellant].”); United States v. King, 73 F.3d 1564, 1572 (11th Cir.

1996) (“[t]he plain error test is ‘difficult to meet’”).

      One of the best indications of the narrowness of plain error review is the fact

that this Court has not yet found any Apprendi error to fit within the scope of the

plain error doctrine. Many appellants have tried to squeeze their Apprendi claims

through, but we have rejected all their efforts. Even when there has been Apprendi

error and it has been “plain,” we have still held the other requirements of the plain


                                            5
error rule were not met. See, e.g., United States v. Cromartie, __ F.3d __, No. 00-

13957 (11th Cir. Oct. 3, 2001); United States v. Gallego, 247 F.3d 1191 (11th Cir.

2001); United States v. Wims, 245 F.3d 1269 (11th Cir. 2001); United States v.

Candelario, 240 F.3d 1300 (11th Cir. 2001); United States v. Smith, 240 F.3d 927

(11th Cir. 2001); United States v. Pease, 240 F.3d 938 (11th Cir. 2001); United

States v. Swatzie, 228 F.3d 1278 (11th Cir. 2000).

      The dissent never explains why enforcing trial level procedural rules by

cutting appellate review down to the narrow confines of the plain error rule does

not undermine or frustrate the purposes of the retroactivity doctrine, but enforcing

appellate level procedural rules does. If the retroactivity doctrine requires that we

address issues that have been procedurally defaulted on appeal, why does it not

require that we address full bore those issues that have been procedurally defaulted

at trial instead of limiting our review to plain error? Everything the dissent says

about declining to review Apprendi issues that were not properly raised in an

appellant’s brief applies with equal force to refusing to review for anything other

than plain error Apprendi issues that were not properly raised at trial. The

retroactivity doctrine either trumps the procedural default doctrine or it does not.

Our position, which is consistent, is that it does not.




                                           6
                                          II.

      The dissent also suggests, in footnote 20, that our enforcement of

procedural bars in this context will require district courts to hold evidentiary

hearings in order to decide if an attorney’s failure to raise Apprendi issues before

that decision was released constitutes ineffective assistance of counsel. That is

simply not so. In this circuit, we have a wall of binding precedent which shuts out

any contention that an attorney’s failure to anticipate a change in the law

constitutes ineffective assistance of counsel. See, e.g., Spaziano v. Singletary, 36

F.3d 1028, 1039 (11th Cir. 1994) (“We have held many times that ‘[r]easonably

effective representation cannot and does not include a requirement to make

arguments based on predictions of how the law may develop.’”) (citations to three

other Eleventh Circuit decisions omitted); Davis v. Singletary, 119 F.3d 1471,

1476 (11th Cir. 1997) (“it was not professionally deficient for [counsel] to fail to

anticipate that the law in Florida would be changed in the future to bar the

admission of hypnotically induced testimony.”) Pitts v. Cook, 923 F.3d 1568,

1572-74 (11th Cir. 1991); Thompson v. Wainwright, 787 F.2d 1447, 1459 n.8

(11th Cir. 1986) (“defendants are not entitled to an attorney capable of foreseeing

the future development of constitutional law”). That rule applies even if the claim

based upon anticipated changes in the law was reasonably available at the time


                                           7
counsel failed to raise it. See, e.g., Pitts, 923 F.3d at 1572-74 (holding that even

though a claim based upon the 1986 Batson decision was “reasonably available” to

counsel at the time of the 1985 trial, failure to anticipate the Batson decision and

raise that claim was not ineffective assistance of counsel).

       Further, the rule that it is not ineffective assistance for an attorney to fail to

foresee a change in the law applies even when the change is such that the forfeited

issue was, in hindsight, a sure fire winner. Wright v. Hopper, 169 F.3d 695, 707-

08 (11th Cir. 1999) (Batson issue); Elledge v. Dugger, 823 F.2d 1439, 1443 (11th

Cir. 1987) (Michigan v. Mosley issue); Thompson, 787 F.2d at 1459 n.8 (Ake

issue). Because our circuit law completely forecloses the contention that an

attorney’s failure to anticipate the Apprendi decision is ineffective assistance,

district courts are not required to, and should not, hold an evidentiary hearing on

that issue. There is no relevant evidence to hear. The issue is settled as a matter of

law.

       Not only that, but we have recently held that neither the novelty of the

Apprendi decision nor the perceived futility of raising the issue before the

Supreme Court released that decision can serve as adequate cause to excuse a

defendant’s failure to have raised the issue in a timely fashion. See McCoy v.

United States, 266 F.3d 1245 (11th Cir. 2001). The McCoy decision also holds


                                             8
that Appendi is not retroactively applicable to cases that were (unlike this one)

through the direct appeal process at the time Apprendi was released. We think that

our post-Apprendi decisions provide sufficient guidance to the district courts that

they will not, as the dissent fears, “result in a waste of judicial resources.”



                                           III.

      The final point to which we wish to respond is the dissent’s assertion that the

panel’s application of a procedural bar in this context is somehow disobedient to

the Supreme Court’s remand instructions.

      Whenever the Supreme Court decides an important issue of law, it routinely

takes every case in which the court of appeals decision came out before the new

decision was announced and in which the certiorari petitioner claims that new

decision might apply, and treats all of those cases the same. The uniform treatment

given all such cases is to vacate the court of appeals judgment and remand the case

for further consideration in light of the new decision. Those boilerplate orders

come out in bushel baskets full. There is no implication in the standard language

of those orders that the court of appeals is to do anything except reconsider the

case now that there is a new Supreme Court decision that may, or may not, affect

the result. We have never felt constrained to read anything into such routine


                                            9
remands other than the direction that we take another look at the case because of

the new decision. 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 of 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

of which this Court was to reconsider the case], rather than being remanded for

further consideration").

      For example, in Jones v. American Broad. Cos., Inc., 961 F.2d 1546 (11th

Cir. 1992), this Court had affirmed a district court’s judgment against the plaintiff

in a defamation action. The Supreme Court vacated our decision and remanded the

case for further consideration in light of an intervening decision of the Supreme

Court restricting the “opinion” defense in defamation actions. On remand, this

Court did not interpret that remand order – which used technical language

identical to that of the order in this case – as a suggestion from the Supreme Court

that its intervening decision meant the result in the appeal should change. Instead,

on remand, this Court held that the intervening decision of the Supreme Court

made no difference at all and said it saw no reason to change the prior affirmance

of the district court’s judgment. Id. That is the same thing the panel in this case


                                          10
did.

       The kind of mass production, assembly-line remand order that was issued in

this case implies nothing about what a court of appeals should do on remand,

except that it is to reconsider the case in light of the intervening decision of the

Supreme Court that is named in the remand order. The panel in this case did that.

It reconsidered its decision affirming Ardley’s conviction and sentence in light of

Apprendi. The reconsideration the panel afforded the case in light of Apprendi

included whether the appellant had procedurally defaulted the Apprendi issue by

not raising it in his briefs before this Court. He had.

       Inherent in the dissent’s position is speculation that the Supreme Court

meant to preclude the panel in this case from considering on remand whether the

Apprendi issue was procedurally barred. There is nothing at all to support that

speculation. There is no reason to believe that the Supreme Court decided to rule

out the application of well-established procedural rules to Apprendi issues in this

or any other case, and for some reason simply forgot to tell anyone. We give the

Supreme Court more credit than that.

       Perhaps the best indication that the panel’s action on remand in this case was

not disobedient to the Supreme Court’s instructions is the fact that the Supreme

Court promptly denied the certiorari petition that was filed seeking review of the


                                           11
panel’s action on remand. See Ardley v. United States, 121 S.Ct. 2621(2001).

And the Supreme Court did the same thing in the other Apprendi issue case from

another panel which had done the same thing on remand that the panel in this case

did, Garcia v. United States, 251 F.3d 160 (11th Cir.), cert. denied, 122 S.Ct. 60

(2001). Apparently, that Court interprets its remand order the same way we do.



                                         IV.

      We have not attempted to set out everything in the dissenting opinion with

which we disagree, but instead have confined our discussion to a few of the major

points. To go further would require more of the reader’s attention than this

enterprise justifies. The panel simply applied a long- and well-established

procedural rule to an appeal when the case was remanded to it by the Supreme

Court. We think the panel got it right and that this Court as a whole was correct to

deny en banc rehearing. It is no wonder why the Supreme Court so promptly

denied certiorari when this case reached it after the remand decision was entered by

the panel.




                                         12
13
TJOFLAT, Circuit Judge, Dissenting from the Denial of Rehearing En Banc, in
which BARKETT, Circuit Judge, joins:

      The panel’s opinion on remand from the Supreme Court, 242 F.3d 989 (11th

Cir. Feb. 20, 2001), is reprinted in full infra Appendix. The panel’s initial opinion

in this case issued on November 19, 1999. United States v. Ardley, 202 F.3d 287

(11th Cir. 1999) (unpublished table decision). Subsequently, the Supreme Court

decided Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435

(2000). The defendant’s conviction and sentence were not yet final when

Apprendi was decided, and the defendant was therefore entitled to retroactive

application of that decision. The Supreme Court granted the defendant’s petition

for a writ of certiorari, vacated the panel’s earlier decision, and remanded the case

for reconsideration in light of Apprendi. Ardley v. United States, 531 U.S. 1063,

121 S. Ct. 751, 148 L. Ed. 2d 654 (2001). On remand, the panel refused to apply

Apprendi to the merits of the defendant’s claim because the defendant had failed to

raise an Apprendi-type claim in his initial brief on appeal.

      I believe that the panel should have reached the merits of the defendant’s

claim that his sentence was imposed in violation of Apprendi. Under the doctrine

of retroactivity, the defendant should receive the benefit of the rule announced in

Apprendi because his case was on direct appeal when the Supreme Court decided

Apprendi. The panel’s decision in this case, however, deprives the defendant of

                                          14
such benefit by invoking the procedural rule regarding abandonment. The panel

thus limits the reach of retroactivity by giving retroactive application to an

intervening Supreme Court decision only if a litigant placed an argument mirroring

the Supreme Court’s decision in his initial brief on appeal, even if such argument

ran counter to circuit precedent at the time the litigant submitted his brief.

      Because I do not subscribe to such a limitation on retroactivity, which will

have sweeping effects far beyond Apprendi cases, and because the panel’s opinion

has created a circuit split on retroactive application of intervening Supreme Court

decisions (with the Eleventh Circuit standing alone), I dissent from the court’s

refusal to rehear this case en banc.



                                            I.

      The principle of Ardley is that this circuit will apply the law of an

intervening Supreme Court decision only if the litigant briefed the issue addressed

by that intervening decision in the litigant’s first brief to us. This principle holds

true even if a case is on remand from the Supreme Court for reconsideration in

light of that intervening decision, and even if it is readily apparent to all that the

intervening decision could affect the resolution of the case. I believe Ardley’s

principle sets a dangerous precedent because it runs afoul of the long-standing


                                           15
“general rule of retrospective effect for the constitutional decisions of [the

Supreme] Court.” Robinson v. Neil, 409 U.S. 505, 507, 93 S. Ct. 876, 877, 35 L.

Ed. 2d 29 (1973). The panel’s decision will alter the way that this court treats all

cases – criminal and civil, on appeal and on remand from the Supreme Court – and

will even alter the way the lower courts will treat decisions of this court.



                                          A.

      Justice Oliver Wendell Holmes once estimated that “[j]udicial decisions

have had retrospective operation for near a thousand years.” Kuhn v. Fairmont

Coal Co., 215 U.S. 349, 372, 30 S. Ct. 140, 148, 54 L. Ed. 228 (1910) (Holmes, J.,

dissenting). Although the Supreme Court briefly retreated from this historical

position in Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601

(1965), and its progeny, and Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349,

30 L. Ed. 2d 296 (1971), and its progeny, the Court has firmly returned to the

historical view. A litigant whose case is on direct review is entitled to the benefit

of a change in the law through retroactive application of the intervening decision.

Harper v. Va. Dep’t. of Taxation, 509 U.S. 86, 113 S. Ct. 2510, 125 L. Ed. 2d 74

(1993) (announcing and applying the rule of retroactivity to civil cases on direct




                                          16
appeal);1 Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649

(1987) (announcing and applying the rule of full retroactivity to criminal cases on

direct appeal); cf. Teague v. Lane, 489 U.S. 288, 305-10, 109 S. Ct. 1060, 1073-75,

103 L. Ed. 2d 334 (1989) (discussing the retroactivity of decisions to defendants

attacking convictions in collateral proceedings).

       In Harper, the Court spoke succinctly about retroactive application of an

intervening decision:

       When this Court applies a rule of federal law to the parties before it, that rule
       is the controlling interpretation of federal law and must be given full
       retroactive effect in all cases still open on direct review and as to all events,
       regardless of whether such events predate or postdate our announcement of
       the rule.

Harper, 509 U.S. at 97, 113 S. Ct. at 2517. See also James B. Beam Distilling Co.

v. Georgia, 501 U.S. 529, 544, 111 S. Ct. 2439, 2448, 115 L. Ed. 2d 481 (1991)

(opinion of Souter, J.); Jones v. United States, 224 F.3d 1251, 1258 (11th Cir.

2000) (citing Harper and Griffith in applying an intervening Supreme Court

decision to a case on direct appeal at the time of the intervening decision);

McKinney v. Pate, 20 F.3d 1550, 1566 (11th Cir. 1994) (en banc) (“Beam and

Harper stand . . . for the proposition that, once a rule of federal law is applied to the



       1
         I realize that there are some nuances to this rule in the civil context. I have written
about this in McKinney v. Pate, 20 F.3d 1550, 1565-66 (11th Cir. 1994) (en banc).

                                                 17
parties in the case in which it was announced, it must be applied retroactively.”).

       The rule of retroactive application of new constitutional rules is most clear

in criminal cases. See, e.g., Griffith, 479 U.S. at 328, 107 S. Ct. at 716 (“[A] new

rule for the conduct of criminal prosecutions is to be applied retroactively to all

cases, state or federal, pending on direct review or not yet final, with no exception

for cases in which the new rule constitutes a ‘clear break’ with the past.”); Shea v.

Louisiana, 470 U.S. 51, 105 S. Ct. 1065, 84 L. Ed. 2d 38 (1985); United States v.

Johnson, 457 U.S. 537, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982). Following the

reasoning of Justice Harlan in Desist v. United States, 394 U.S. 244, 256, 89 S. Ct.

1030, 1037, 22 L. Ed. 2d 248 (1969) (Harlan, J., dissenting), and Mackey v. United

States, 401 U.S. 667, 675, 91 S. Ct. 1160, 1164, 28 L. Ed. 2d 404 (1971) (Harlan,

J., concurring in the judgment), the Court has stated that retroactive application of

an intervening decision is part of the “basic norms of constitutional adjudication,”

and has relied upon two main reasons2 for applying retroactivity to litigants on




       2
          Because Griffith characterized Justice Harlan’s concerns as two-fold rather than three-
fold, see Griffith, 479 U.S. at 323, 107 S. Ct. at 713, I will follow that characterization. I am
aware that the Court in United States v. Johnson, 457 U.S. 537, 546-48, 102 S. Ct. 2579, 2585-
86, 73 L. Ed. 2d 202 (1982), stated that Justice Harlan argued on three grounds rather than two.
Johnson addressed Justice Harlan’s additional concern that “the Court’s ‘ambulatory
retroactivity doctrine,’ [Mackey, 401 U.S.] at 681, 91 S. Ct. at 1174, conflicts with the norm of
principled decisionmaking.” Johnson, 457 U.S. at 546, 102 S. Ct. at 2585.

                                                18
direct appeal. Griffith, 479 U.S. at 322, 107 S. Ct. at 713.3 The first reason is to

ensure that the federal courts fulfill their constitutional function of adjudication

rather than legislation. Because of the constitutional “case or controversy”

requirement, the “nature of judicial review” is such that a federal court necessarily

adjudicates a single case and decides the issue before the court; in so doing, the

court may announce a new rule. See id. Preservation of the “integrity of judicial

review” requires that the new rule be applied “to all similar cases pending on direct

review.” Id. at 322-23, 107 S. Ct. at 713. This is because the “‘nature of judicial

review’” is different from “the quintessentially ‘legislat[ive]’ prerogative to make

rules of law retroactive or prospective as we see fit.” Harper, 509 U.S. at 95, 113

S. Ct. at 2516 (quoting Griffith, 479 U.S. at 322, 107 S. Ct. at 712).4

       The second reason for retroactively applying new rules to cases pending on


       3
          Justice Harlan’s opinions in Desist, Mackey, and, to a much lesser extent, United States
v. Estate of Donnelly, 397 U.S. 286, 295, 90 S. Ct. 1033, 1039, 25 L. Ed. 2d (1970) (Harlan, J.,
concurring), form the backdrop for the entire discussion of retroactivity in recent years, whether
in civil or criminal cases, on direct appeal or on habeas. See, e.g., Beam, 501 U.S. 529, 111 S.
Ct. 2439 (civil cases); Griffith, 479 U.S. 314, 107 S. Ct. 708 (criminal direct appeals); Teague,
489 U.S. 288, 109 S. Ct. 1060 (criminal collateral attacks).
       4
          “As a practical matter, of course, [the Supreme Court] cannot hear each case pending on
direct review and apply the new rule. But [the Court] fulfills [its] judicial responsibility by
instructing the lower courts to apply the new rule retroactively to cases not yet final. Thus, it is
the nature of judicial review that precludes us from ‘[s]imply fishing one case from the stream of
appellate review, using it as a vehicle for pronouncing new constitutional standards, and then
permitting a stream of similar cases subsequently to flow by unaffected by that new rule.’”
Griffith, 479 U.S. at 323, 107 S. Ct. at 713 (fourth alteration in original) (quoting Mackey, 401
U.S. at 679, 91 S. Ct. at 1173 (Harlan, J., concurring in the judgment)).

                                                19
direct appeal is that “selective application of new rules violates the principle of

treating similarly situated [parties] the same.” Id. (alteration in original) (quoting

Griffith, 479 U.S. at 323, 107 S. Ct. at 713). In the retroactivity context, the Court

has measured whether defendants or parties are “similarly situated” solely by

reference to the finality of the direct appeal. See, e.g., American Trucking Ass’ns,

Inc. v. Smith, 496 U.S. 167, 214, 110 S. Ct. 2323, 2350, 110 L. Ed. 2d 148 (1990)

(Stevens, J., dissenting) (contending that an intervening decision ought to apply

retroactively to a civil litigant whose case was not yet final when the intervening

decision was handed down, because “[t]he Court has no more constitutional

authority in civil cases than in criminal cases to disregard current law or to treat

similarly situated litigants differently” (emphasis added)); Harper, 509 U.S. at 97,

113 S.Ct. at 2517 (discussing “similarly situated” in terms of the finality of the

case: “[W]e now prohibit the erection of selective temporal barriers to the

application of federal law in noncriminal cases.”); Johnson, 457 U.S. at 555-56,

102 S. Ct. at 2590-91 (discussing “similarly situated defendants” strictly in terms

of the finality of conviction on direct appeal, and advocating an approach “that

resolve[s] all nonfinal convictions under the same rule of law”). An appeal is

considered “final” for retroactivity purposes when the availability of appeals has

been exhausted and the time for a petition for certiorari has elapsed or a petition for


                                          20
certiorari has been denied. Griffith, 479 U.S. at 321 n.6, 107 S. Ct. at 712 n.6;

United States v. Estate of Donnelly, 397 U.S. 286, 296, 90 S. Ct. 1033, 1039, 25 L.

Ed. 2d (1970) (Harlan, J., concurring) (“Just as in the criminal field the crucial

moment is . . . the time when a conviction has become final, . . . so in the civil area

that moment should be when the transaction is beyond challenge either because the

statute of limitations has run or the rights of the parties have been fixed by

litigation and have become res judicata.”).



                                          B.

      In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d

435 (2000), the Supreme Court announced a clear rule of constitutional law and

then applied that rule to the case before it by reversing the defendant’s conviction.

The 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.” Id. at 490, 120 S.

Ct. at 2362-63. This circuit, like our sister circuits, has held that Apprendi requires

that drug quantity must be charged in the indictment and proven to the jury beyond

a reasonable doubt for a defendant, sentenced pursuant to 21 U.S.C. § 841(b), to

receive a sentence above the prescribed statutory maximum. See United States v.


                                          21
Rogers, 228 F.3d 1318, 1326-28 (11th Cir. 2000) (holding that Apprendi overruled

United States v. Hester, 199 F.3d 1287 (11th Cir. 2000)). In the instant case, the

defendant, sentenced pursuant to section 841, asserts that his sentence exceeds the

maximum statutory sentence, in violation of Apprendi.5 The defendant is thus

seeking to receive the benefit, retroactively, of the Court’s decision in Apprendi.

Indeed, the Supreme Court granted the defendant’s petition for writ of certiorari,

vacated this court’s previous decision, and remanded the case for reconsideration

in light of Apprendi. See Ardley v. United States, 531 U.S. 1063, 121 S. Ct. 751,

148 L. Ed. 2d 654 (2001).

       Instead of applying plain error review to the defendant’s Apprendi claim, the

panel’s decision in this case declines to reach the merits of the claim at all.6 The

panel bases its decision on our procedural rule “that issues and contentions not

timely raised in the briefs are deemed abandoned.” United States v. Ardley, 242


       5
        In this case, the defendant was indicted and convicted for violating 21 U.S.C. §§ 841(a)
and 846, Count 1, and 18 U.S.C. § 1952, Counts 2 and 3. His 293-month prison sentence on
Count 1 is the subject of his Apprendi claim.

       6
          Judge Carnes attempts to find an inconsistency in my position that this court should
apply plain error analysis to an Apprendi argument raised for the first time on appeal but should
refrain from applying the procedural bar of Fed. R. App. P. 28. There is no inconsistency in this
position because there is a distinct difference in the outcomes of applying the two procedural
rules: enforcing Rule 28 “frustrates the purposes of the retroactivity doctrine” because the court
is absolutely barred from applying the new constitutional rule; whereas, applying a plain error
analysis, even though it is a more narrow review, allows the court, in at least some instances, to
implement the new constitutional rule.

                                                22
F.3d 989, 990 (11th Cir. 2001). While I fully support enforcing procedural

requirements because of the valuable purposes they serve, see Presnell v. Kemp,

835 F.2d 1567, 1573-74 (11th Cir. 1988) (discussing the important purposes served

by rules requiring that issues be raised in a proper and timely fashion on appeal),7 I

do not believe that our procedural requirement regarding abandonment should

trump Supreme Court precedent that requires application of the intervening

decision to this case on direct appeal.

       The panel has essentially superimposed an additional requirement onto

retroactivity determinations. While the Supreme Court has clearly stated that all

cases pending on direct appeal at the time of an intervening decision are entitled to

the benefit of a new rule, the panel’s decision narrows the class of cases entitled to

retroactivity. The panel’s new rule is that cases are entitled to the benefit of an

intervening decision only if: 1) the case was not yet final at the time of the

intervening decision; and 2) the litigant presaged the intervening decision by

raising the issue addressed by that decision in the litigant’s initial brief on appeal.

I believe that by adding this second requirement to retroactive application of

intervening decisions, the panel’s opinion runs counter to retroactivity as defined



       7
         I do not believe that the policy reasons in support of the “abandoned objection rule,”
which I enumerate in Presnell, are furthered by enforcement of the rule in this case.

                                                23
by Supreme Court precedent.

       Consider the effect of our new rule on the instant case. Starting with the

assumption that the defendant has a meritorious claim that his sentence was

imposed in violation of Apprendi, the panel’s decision forecloses the defendant,

sentenced in violation of the constitution, from obtaining relief – even though his

conviction and sentence were not yet “final” when Apprendi was decided. I cannot

agree that this an appropriate “retroactive” application of the intervening Supreme

Court decision.

       The Supreme Court’s rationale for retroactive application of intervening

decisions provides further illustration that the panel’s decision runs afoul of

retroactivity. As noted supra part I.A, the Supreme Court employs retroactivity to

ensure the “integrity of judicial review,” such that courts operate as a judiciary

rather than a legislature, and to ensure that “similarly situated” litigants are treated

the same. By failing to accord the defendant the benefit of Apprendi, the panel has

rendered Apprendi prospective in application, at least in cases like Ardley. This

certainly impugns the integrity of judicial review.8 The panel’s rule also negates

       8
          The usual rationale for consistent enforcement of procedural requirements is judicial
restraint, borne of the Constitution’s “case or controversy” requirement. Unfortunately, the
panel’s decision, while utilizing a tool of judicial restraint, perversely promotes judicial activism
by making Apprendi prospective in application in some cases. See Harper, 509 U.S. at 105-06,
113 S. Ct. at 2522 (Scalia, J., concurring) (“Prospective decisionmaking is the handmaid of
judicial activism, and the born enemy of stare decisis.. . . .[T]he true traditional view is that

                                                 24
the principle of treating similarly situated litigants the same. As noted above, in

the retroactivity context the Supreme Court has discussed whether litigants are

“similarly situated” in terms of the timing of the case. That is, when the Supreme

Court announces a new rule and applies it to a litigant in a specific case, another

litigant is considered “similarly situated” if his case is still on direct appeal.9

Implicit in the panel’s decision is that litigants are not “similarly situated” for

retroactivity purposes if one litigant has failed to make an argument on appeal in

his case while another litigant has made such argument. Although this is

sometimes a proper distinction,10 my reading of the cases leads me to believe that it

is a distinction without a difference when evaluating cases for retroactivity

purposes.

       I believe that the panel has wrongly added an additional hurdle to the



prospective decisionmaking is quite incompatible with the judicial power, and that courts have
no authority to engage in the practice.”) (Scalia, J., concurring).
       9
         In addition to the citations supra part I.A, Teague, 489 U.S. 288, 109 S. Ct. 1060,
provides further support for this notion. Teague distinguishes between cases on direct appeal
and cases on habeas review for retroactivity purposes. The plurality in Teague held that
defendants making collateral attacks on their convictions were not “similarly situated” with
defendants on direct review. If a rule is applied to one case on collateral attack, however, it must
be applied to all cases on collateral attack – for these defendants would be “similarly situated.”
       10
          For example, this distinction should determine the appropriate standard of review for a
case on direct appeal. See, e.g., United States v. Candelario, 240 F.3d 1300 (11th Cir. 2001)
(describing the difference between plain error review and preserved error review in Apprendi
cases).

                                                25
retroactive application of an intervening Supreme Court decision.11 This hurdle

has been neither contemplated nor condoned by the Court, and unnecessarily

narrows the class of litigants who will receive the benefit of an intervening

Supreme Court decision.12 Further, because we are the only circuit to impose this

additional hurdle, there is now a circuit split on this important issue. See United

States v. Clinton, 256 F.3d 311, 313 (5th Cir. 2001) (on remand from the Supreme

Court) (reviewing a defendant’s sentences for plain error where “the [Apprendi]

arguments presented herein were not presented to the district court or this Court on

initial appeal”); see also, e.g., United States v. Terry, 240 F.3d 65, 72-73 (1st Cir.

2001) (reviewing a defendant’s Apprendi claims for plain error where the

defendant did not object “at sentencing” and failed to put the “arguments in the

initial briefs on appeal”);13 United States v. White, 238 F.3d 537, 541 (4th Cir.

       11
          This hurdle applies to retroactivity in general, and not just to decisions of the Supreme
Court. For example, if the en banc court overrules precedent to change the law of this circuit,
there is no reason for such a situation to be treated differently from a Supreme Court decision.
In the same way, a panel decision that does not overrule precedent but sets forth a seminal
principle for the first time would be subject to the same retroactivity rules.
       12
          The claim that the Supreme Court intends decisions such as Apprendi to be applied
retroactively to cases such as Ardley is bolstered by United States v. Johnson, 520 U.S. 461, 468,
117 S. Ct. 1544, 1549, 137 L. Ed. 2d 718 (1997), which held that, for purposes of plain error
review, an error is considered to be “plain” if it is plain at the time of appeal – not at the time of
trial.
       13
         The First Circuit’s position is not well-defined, for that circuit declined to allow
supplemental briefs on the Apprendi issue in United States v. Burgos, 239 F.3d 72, 77 n.3 (1st
Cir. 2001). The court denied the defendant’s motion for supplemental briefing “without
prejudice to the [defendant’s] right to raise Apprendi by way of an application for collateral

                                                 26
2001) (reviewing an Apprendi claim for plain error where the defendant first raised

the claim in a supplemental brief); United States v. Delgado, 256 F.3d 264 (5th Cir.

2001) (same); United States v. Mietus, 237 F.3d 866, 875 (7th Cir. 2001)

(reviewing a defendant’s Apprendi claims for plain error after the defendant

“waived” the claims below by failing to object at trial; the defendant raised

Apprendi-type claims for the first time in supplemental briefs five days before oral

argument); United States v. Poulack, 236 F.3d 932, 935-37 (8th Cir. 2001)

(reviewing an Apprendi claim for plain error where the defendant first raised the

claim in a “supplemental brief”); United States v. Cernobyl, 255 F.3d 1215 (10th

Cir. 2001) (same).

                                                     C.

        The panel’s decision in this case will have far greater consequences than

appear at first blush. While this case involves a single case on remand from the

Supreme Court for reconsideration in light of Apprendi, the rule of Ardley extends

to all other criminal and civil cases. Moreover, the rule of Ardley will be the rule

of law in the lower courts in this circuit in addition to serving as binding precedent

on this court.

        Prior to Ardley, it had been my understanding that courts would apply an


relief in the event his direct appeal failed.” Id.

                                                     27
intervening decision despite procedural rules to the contrary. See, e.g., United

States v. Candelario, 240 F.3d 1300 (11th Cir. Feb. 5, 2001) (on rehearing)

(applying plain error review to a defendant’s Apprendi claim, even though the

defendant had neither made a contemporaneous objection nor placed the issue in

his initial brief on appeal; the first mention of an Apprendi-type issue was in the

defendant’s petition for rehearing en banc). My view was fully supported by case

law. See, e.g., United States v. Calhoon, 97 F.3d 518, 529 (11th Cir. 1996)

(applying United States v. Gaudin, 515 U.S. 506, 522-23, 115 S. Ct. 2310, 2320,

132 L. Ed. 2d 444 (1995) (holding that materiality is a jury question), retroactively,

on a plain error basis, to a case on appeal where the defendant had neither objected

at trial nor raise the issue in his initial brief on appeal);14 United States v. Allen, 76

F.3d 1348, 1367 (5th Cir. 1996) (applying Gaudin retroactively, on a plain error

basis, to a case on appeal where the defendants raised the issue “[f]or the first time


       14
          In Calhoon, the defendant’s initial brief did not mention Gaudin, even though Gaudin
was decided about three weeks prior to the filing of the brief in Calhoon. The closest the
defendant came to the Gaudin issue was his one page assertion that the trial court erred “as a
matter of law” in determining that certain claims were material. The Government’s brief first
raised the Gaudin issue: “Although Appellant did not raise the issue, the government must
address the impact of [Gaudin] on the case at bar.” The defendant then made a full-fledged
Gaudin argument in his reply brief. The panel opinion in Calhoon made no mention of the fact
that the defendant had “abandoned” his argument by failing to raise it in his initial brief on
appeal. In fact, the panel understood that Griffith required it to apply Gaudin retroactively,
Calhoon, 97 F.3d at 529, and therefore reviewed for plain error the defendant’s belated
assertions that materiality should have been decided by the jury rather than the judge, id. at 529-
30.

                                                28
in their reply briefs”).

       After Ardley, I fear that intervening decisions that establish new precedent

will be given short shrift in this circuit in other cases that are not yet final. I am

unsure as to all of the consequences, but it seems certain that Ardley will apply in

civil cases as well as criminal cases, for there is no reason to distinguish between

the two based on the language of Ardley.15 Further, it is perfectly logical to think

that a district court will see no need to grant a litigant the benefit of a new rule

announced by this court or the Supreme Court if there is any sort of procedural bar.

       For example, in the criminal context, Ardley could lead to the continued

incarceration of a defendant who was unconstitutionally convicted. This is because

Ardley applies not just to sentence appeals, but also to appeals raising

constitutional infirmities in the conviction itself. Consider, for example, the new

rule we announced in United States v. Santa, 236 F.3d 662 (11th Cir. 2000). Santa

held, for the first time in this circuit, that some circumstances require an

anticipatory search warrant rather than a mere after-the-fact governmental claim of


       15
           I suppose one could argue that the Ardley decision is somehow limited to Apprendi
cases, since this circuit has only applied this variation on retroactivity in the Apprendi context.
See, e.g., United States v. Garcia, 251 F.3d 160 (11th Cir. 2001) (on remand from the Supreme
Court) (unpublished table decision); United States v. Padilla-Reyes, 247 F.3d 1158, 1164 (11th
Cir. 2001); United States v. Nealy, 232 F.3d 825, 830-31 (11th Cir. 2000). To the extent that
these other cases support the Ardley principle, I believe they are wrongly decided. I further
believe that, based on the broad language of Ardley and these other cases, the new principle of
retroactivity will necessarily have broad application in this circuit.

                                                 29
“exigent circumstances.” Id. at 673. Now imagine a hypothetical criminal case

pending in this circuit when Santa was decided, in which a warrantless search

conducted on the basis of exigent circumstances revealed the critical evidence

pointing to the defendant’s guilt. The case was not final when Santa was decided

(because the defendant had not yet been convicted), but the time to contest the

legality of the search had passed. The defendant, upon learning of the new rule,

felt that the search conducted in his case was illegal pursuant to Santa, so he moved

the district court to exclude the fruits of the search as illegally obtained. Although

the defendant’s claim fell squarely within Santa’s precedent, the district court

denied the motion, simply citing Ardley and noting that the time for the

defendant’s objection had passed, pursuant to Fed. R. Crim. Pro. 12(b)(3) (stating

that a motion to suppress evidence “must be raised prior to trial”).16 The

defendant, then, would have been convicted on the basis of unconstitutionally

obtained evidence, even though his case was not yet final when Santa was decided.

       In the same way, the rule of Ardley will have deleterious consequences in

civil cases. Consider an example in which the en banc court or the Supreme Court

held in Case A that a claim must be filed within two years rather than three years,



       16
          This hypothetical would work equally well with any defense that a defendant can
waive if not timely asserted.

                                              30
thereby reversing settled precedent with regard to a statute of limitations.17 With

this new statute of limitations in hand, the defendant in Case B – a case in which

the pleadings are closed – moves the district court to dismiss Case B because the

plaintiff’s claim is barred by the now-applicable statute of limitations. In response,

the plaintiff cites Ardley for the proposition that the defendant is procedurally

barred from asserting as an affirmative defense the statute of limitations, pursuant

to Fed. R. Civ. Pro. 8(c) (stating that an affirmative defense based on the statute of

limitations “shall” be set forth in the answer). The district court thus denies the

defendant’s motion, based on Ardley, and allows the case to progress to trial –

despite the fact there is no longer a legally cognizable claim at issue! The

plaintiff’s recovery from the defendant would be affirmed on appeal because the

defendant “waived” his right to assert the affirmative defense of statute of

limitations. See EEOC v. White & Son Enter., 881 F.2d 1006, 1009 (11th Cir.

1989) (holding that a statute of limitations defense was waived when the defendant

did not raise it until three days before trial). Thus, Ardley’s principle could have

the effect of creating liability in civil cases where precedent dictates no liability




       17
          This might arise in a choice of law scenario when two states have differing statutes of
limitations and a court must decide which is applicable.

                                                31
should attach.18

       In short, the consequences of Ardley are much greater than they may appear

at first blush. These consequences demonstrate that the panel should not have

applied a procedural bar as it did.



                                              II.

       Aside from the retroactivity problems, the panel’s decision is troubling for

two additional reasons. First, the panel could have made an exception to the

abandonment rule, for the abandonment rule is only a prudential constraint.

Second, I believe the panel’s decision frustrates the Supreme Court remand.



                                              A.

       I believe the panel should have overlooked the defendant’s failure to include

an Apprendi-type argument in his initial brief on appeal. The requirement of

placing all issues in the initial brief is found in Rule 28(a)(9)(A) of the Federal

Rules of Appellate Procedure: The appellant’s brief “must contain” the

“appellant’s contentions and the reasons for them, with citations to the authorities


       18
         My example could apply to any claim that can be waived under the Federal Rules of
Civil Procedure. The affirmative defenses of Fed. R. Civ. Pro. 8(c) provide ready examples of
such “waivable” claims or defenses.

                                              32
and parts of the record on which the appellant relies.” Failure to comply with this

requirement usually results in waiver or abandonment of the issue. See, e.g.,

Flanigan’s Enters., Inc. v. Fulton Co., 242 F.3d 976, 987 n.16 (11th Cir. 2001). It

is important to note, though, that this procedural requirement is not a jurisdictional

constraint, but only a prudential constraint. See United States v. Miranda, 248

F.3d 434, 443-44 (5th Cir. 2001). It is well-established that courts have the power

to raise issues sua sponte, despite procedural restraints. Fed. R. Crim. P. 52(b)

(“Plain errors . . . may be noticed although they were not brought to the attention of

the court.”); Silber v. United States, 370 U.S. 717, 718, 82 S. Ct. 1287, 1288, 8 L.

Ed. 2d 798 (1962) (per curiam) (“In exceptional circumstances, especially in

criminal cases, appellate courts, in the public interest, may, of their own motion,

notice errors to which no exception has been taken, if the errors are obvious.”)

(quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392, 80 L.

Ed. 555 (1936)). Courts exercise this power when prudence counsels that it is the

appropriate course of action. See United States v. Diaz, 138 F.3d 1359, 1362 (11th

Cir. 1998) (recognizing that a court of appeals may, sua sponte, raise and correct a

plain error in sentencing, but declining to do so) (citing United States v. Adams,




                                          33
634 F.2d 830, 836 (5th Cir. Unit A Jan. 19, 198119)); Meadows v. Cagle’s, Inc.,

954 F.2d 686, 693-94 (11th Cir. 1992) (reviewing, sua sponte, for plain error a

district court’s legal holding on an issue that was not appealed); United States v.

Williams, 594 F.2d 86, 92 n.12 (5th Cir. 1979) (noting that the court is empowered

to raise an issue sua sponte for plain error review, but declining to do so); United

States v. Brown, 555 F.2d 407, 420 n.29 (5th Cir. 1977) (explaining that the court

ordered supplemental briefing on an issue not properly raised by the parties

because the court may notice plain error sua sponte); see also United States v.

Jackson, 32 F.3d 1101, 1104-05 (7th Cir. 1994) (vacating a district court’s

sentencing error by using the appellate court’s power, pursuant to Fed. R. Crim. P.

52(b), to address a plain error sua sponte); Hatley v. Lockhart, 990 F.2d 1070,

1073 (8th Cir. 1993) (addressing the merits of a defendant’s contention – in part to

preclude a later assertion that raising the issue in a habeas proceeding was an abuse

of the writ – that his confession was obtained in violation of the Fifth Amendment,

even though such issue was not enumerated in the brief).

       In the instant case, prudence surely counsels that the panel should have

reached the merits of the defendant’s Apprendi claim, given that it is starkly


       19
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.

                                               34
presented and that courts have uniformly pronounced sentences in excess of the

statutory maximum, meted out without a jury finding on drug quantity, to be

error.20 See, e.g., United States v. Strayhorn, 250 F.3d 462, 468 (6th Cir. 2001)

(collecting cases). In this sense, I concur with the Fifth Circuit’s reasoning in a


       20
          An additional reason for reaching the merits of the defendant’s Apprendi claim in this
direct appeal is that the defendant surely will mount a collateral attack, pursuant to 28 U.S.C. §
2255, based on Apprendi. His attack could be asserted in one of two ways. First, he could
present a substantive Apprendi claim, that is, the same claim he could have raised in his initial
brief on direct appeal. To do so, however, he would have to show “cause” for his failure to raise
the claim and resulting “prejudice.” Engle v. Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 1573, 71
L. Ed. 2d 783 (1982). The novelty of a claim can serve as cause for counsel’s failure seasonably
to present it. Engle, 456 U.S. at 133, 102 S. Ct. at 1574. As Judge Carnes properly points out in
his concurring opinion, however, the defendant is foreclosed from pursuing this argument by our
recent panel decision in McCoy v. United States, 266 F.3d 1245 (11th Cir. 2001), which held
that an Apprendi claim is not sufficiently novel to satisfy cause. McCoy, however, would not
foreclose the defendant’s second ground for relief, a substantive ineffective assistance of counsel
claim, that his attorney’s omission of the Apprendi claim in his initial brief on direct appeal
failed Sixth Amendment muster. Failure to “raise a particular claim” may constitute ineffective
assistance of counsel. See Smith v. Robbins, 528 U.S. 259, 288, 120 S. Ct. 746, 765, 145 L. Ed.
2d 756 (2000). Thus, armed with McCoy’s conclusion that an Apprendi claim is not novel, the
defendant could argue that a reasonably competent defense attorney would have made an
Apprendi-type claim in his initial brief on appeal. For example, the defendant could argue that a
competent attorney, drawing on the Supreme Court’s teaching in Jones v. United States, 526
U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999), would have asserted that the district court
erred by failing to require the jury to find beyond a reasonable doubt the drug quantity, 1.5
kilograms of crack cocaine, which led to the defendant’s 293-month sentence under 21 U.S.C. §
841(b)(1)(A). This error, a competent attorney would have argued, required that the defendant’s
sentence for violating 21 U.S.C. § § 846 and 841(a)(1) be set aside and the case remanded for
resentencing under 21 U.S.C. § 841(b)(1)(C). A collateral attack based on this argument would
burden the district court with the task of canvassing the record, and perhaps holding an
evidentiary hearing, on the issue of counsel’s competence under the circumstances. See Gray v.
Greer, 800 F.2d 644, 646-47 (7th Cir. 1986) (“When a claim of ineffective assistance of counsel
is based on failure to raise viable issues, the district court must examine the trial record to
determine whether appellate counsel failed to present significant and obvious issues on appeal.”),
cited with approval in Smith, 528 U.S. at 288, 120 S. Ct. at 765. In sum, the panel’s decision to
forego plain error review in this case, by relying on Rule 28, a decision the en banc court now
upholds, will result in a waste of judicial resources.

                                                35
recent case.

              In this case, we find the following circumstances relevant to the
       exercise of our Rule 28 discretion. One, Apprendi was decided after
       briefing and one of the defendants refers us to the new decision in his post-
       argument brief. Thus, it is not completely accurate to characterize the issue
       as waived or abandoned. Two, Appellants protested at trial and on appeal
       that their due process rights had been infringed by the district court’s
       procedure for determining drug quantity. We cannot in good faith ignore
       Apprendi in a discussion of what process is due a criminal defendant who
       challenges a drug quantity determination. Finally, it is clear from the record
       in this case that Appellants were sentenced in violation of constitutional due
       process as interpreted by the Supreme Court in Apprendi. Based on these
       factors, we will consider whether that violation was plain error as to each of
       the Appellants in this case. See United States v. Garcia, 242 F.3d 593 (5th
       Cir. 2001).

Miranda, 248 F.3d at 444 (emphasis added).

       Thus, aside from my concerns about retroactivity, I believe that the Ardley

panel should have exercised its discretion to overlook the defendant’s failure to

enumerate an Apprendi-type claim in his initial appellate brief.21 The panel’s

failure to exercise its discretion forecloses all future panels from exercising their


       21
          If one subscribes to Blackstonian jurisprudential views, one could validly assert that
the panel should have noticed, sua sponte, plain error in the defendant’s sentence in the initial
appeal. This is because, according to this view of the law, courts do not create new law, but only
announce what the law always has been. Thus, any error in the defendant’s sentence existed
when the case was here on the initial appeal, and the panel erred by failing to notice and address
the error. (I note that multiple panels on which I served made the same error. See, e.g., United
States v. Wims, 207 F.3d 661 (11th Cir. 2000) (unpublished table disposition), cert. granted,
judgment vacated by Wims v. United States, 531 U.S. 801, 121 S. Ct. 32, 148 L. Ed. 2d 3 (2000),
opinion on remand as United States v. Wims, 245 F.3d 1269 (11th Cir. 2001); United States v.
Curry, 211 F.3d 129 (11th Cir. 2000), cert. granted, judgment vacated by Curry v. United States,
531 U.S. 953, 121 S. Ct. 376, 148 L. Ed. 2d 290 (2000).)

                                               36
discretion in Apprendi and non-Apprendi cases alike, because Ardley and its

progeny have directly confronted and addressed the issue of the procedural bar.

Ardley, 242 F.3d at 990 (“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.”); see also United States v. Padilla-Reyes, 247 F.3d 1158,

1164 (11th Cir. 2001) (“[W]e apply the rule that parties cannot properly raise new

issues at supplemental briefing, even if the issues arise based on intervening

decisions or new developments cited in supplemental authority.”).



                                          B.

      I also believe that the panel’s decision frustrates the Supreme Court’s

remand. To be sure, the Supreme Court did not intimate its views on the merits of

this case simply by remanding it to this court. See In re Sealed Case, 246 F.3d

696, 699 (D.C. Cir. 2001) (noting that while an order of the Supreme Court

granting certiorari, vacating, and remanding “may indicate ‘a reasonable

probability that the decision below rests upon a premise that the lower court would

reject if given the opportunity for further consideration,’ it does ‘not amount to a

final determination on the merits’” (citations omitted)); cf. United States v. Wims,


                                          37
245 F.3d 1269 (11th Cir. 2001) (holding, in a case on remand from the Supreme

Court for reconsideration in light of Apprendi, that error in the defendant’s

sentences did not affect the defendant’s substantial rights and therefore did not

require resentencing or reversal of the convictions). The Supreme Court did vacate

the judgment of this court, however, meaning that the appeal must be looked at

afresh. When looking at the appeal afresh, the panel should have taken the case

under submission with the pertinent information as it now stood, after the remand.

Instead, the panel took the case under submission with exactly the same

information that was available before the remand. I do not see how this comports

with the Supreme Court’s mandate.

       The language of the Court’s remand supports my understanding. The

remand instructs this court to reconsider its previous opinion in light of Apprendi.22

Rather then emphasizing the remand itself, the panel emphasized the boilerplate

nature of the remand. See Ardley, 242 F.3d at 990 (noting that “the Supreme

Court’s remand order . . . is cast in the usual language,” and that there is no



       22
         The Supreme Court’s opinion in this case stated, in full:
       On petition for writ of certiorari to the United States Court of Appeals for the Eleventh
       Circuit. Motion of petitioner for leave to proceed in forma pauperis and petition for writ
       of certiorari granted. Judgment vacated, and case remanded to the United States Court of
       Appeals for the Eleventh Circuit for further consideration in light of Apprendi v. New
       Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Ardley v. United States, 531 U.S. 1063, 121 S. Ct. 751, 148 L. Ed. 2d 654 (2001).

                                               38
requirement “that we treat the case as though the Apprendi issue had been timely

raised in this Court”). I respectfully submit that this was error. Placing the

emphasis on the remand itself yields the conclusion that the Supreme Court

recognized that there was a plausibly meritorious enumeration of error in the

defendant’s sentence, yet the Court did not want to sift through the record to

determine whether such error affected the defendant’s substantial rights. The clear

purpose of the remand was to afford this court the opportunity to apply the new

substantive principle announced in Apprendi.23 Of course, the actual application of

Apprendi is something left to this court – and I suggest that application of plain

error review could fairly and speedily dispose of the merits of the defendant’s

claim in the instant case. See, e.g., United States v. Gallego, 247 F.3d 1191, 1201

(11th Cir. 2001); United States v. Candelario, 240 F.3d 1300, 1308-12 (11th Cir.

2001) (collecting cases); Wims, 245 F.3d at 1272-74.




       23
          While the Supreme Court has issued dozens of identical remands to virtually every
other circuit court of appeal, I have been unable to find any other circuit that has taken the
approach of the Ardley panel regarding abandonment with respect to cases on remand from the
Supreme Court for reconsideration in light of an intervening decision. To the contrary, the Fifth
Circuit has explicitly reached the merits of a defendant’s Apprendi claim in a case on remand
from the Supreme Court, even though the defendant failed to raise an Apprendi claim in the trial
court or in his initial brief to the appellate court. United States v. Clinton, 256 F.3d 311, 313
(5th Cir. 2001) (on remand from the Supreme Court) (reviewing a defendant’s sentences for
plain error where “the [Apprendi] arguments presented herein were not presented to the district
court or this Court on initial appeal”).

                                               39
                                        III.

      For the foregoing reasons, I disagree with the panel’s decision in Ardley. I

therefore dissent from the denial of rehearing en banc.
                               APPENDIX

                                                                  [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                       ________________________

                              No. 98-7033
                       ________________________

                     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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