                                                                                    [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS
                         FOR THE ELEVENTH CIRCUIT

                            -------------------------------------------         FILED
                                         No. 99-15211                   U.S. COURT OF APPEALS
                           -------------------------------------------- ELEVENTH CIRCUIT
                                                                             NOV - 7 2000
                                                                           THOMAS K. KAHN
                          D. C. Docket No. 99-00045-CR-4-WS                    CLERK


UNITED STATES OF AMERICA,
                                                            Plaintiff-Appellee,

       versus


RENARD MAURICE NEALY,
                                                            Defendant-Appellant.


                 ----------------------------------------------------------------
                      Appeal from the United States District Court
                            for the Northern District of Florida
                 ----------------------------------------------------------------
                                    (November 7, 2000)



Before EDMONDSON, WILSON and MAGILL*, Circuit Judges.




_______________
* Honorable Frank J. Magill, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
EDMONDSON, Circuit Judge:

      Defendant Renard Maurice Nealy appeals his 32-year sentence for two

counts of possession with intent to distribute cocaine base. 21 U.S.C. § 841.

Because any error in sentencing based on drug quantity was harmless, and because

the government was not required to file a substantial assistance motion, we affirm.



                                         I.



      The Leon County Sheriff’s Department lawfully searched Defendant’s

residence and found 14.8 grams of cocaine base. Rather than immediately arrest

him, the police sought Defendant’s assistance in arresting Defendant’s supplier,

Alex Randal. Randal was arrested later that night when he delivered 3 ounces of

cocaine base to Defendant’s residence. In the subsequent months, Defendant

cooperated in other controlled drug buys and testified in Randal’s trial; Randal was

convicted. Before Randal’s trial, Defendant was told that, if he had committed

other crimes, then he would “receive no consideration for [his] cooperation.” Five

days after testifying at Randal’s trial, Defendant was arrested with 3.6 grams of

cocaine base.




                                          2
       Before his trial, Defendant requested that the jury instructions include an

instruction about drug quantity. Defendant argued that a footnote to a recent

Supreme Court decision required the jury to determine sentencing factors beyond a

reasonable doubt: Jones v. United States, 119 S. Ct. 1215, 1224 n.6 (1999). The

judge did not include drug quantity in the jury instructions. Defendant was then

convicted on two counts of possession with intent to distribute cocaine base. 21

U.S.C. § 841.1

       At the sentencing hearing, Defendant again argued, based on the Jones

footnote, that the district judge must submit the issue of drug quantity to the jury.

Relying on well established circuit precedent, the district judge rejected this

contention and determined by a preponderance of the evidence that Defendant had

more than 5 grams of cocaine base.

       The pertinent statute, 21 U.S.C. § 841(b), distinguishes sentencing

maximums based on drug quantity. A person with an earlier felony drug

conviction who is convicted with at least 5 grams of cocaine base may be

sentenced from 10 years to life in prison. 21 U.S.C. § 841(b)(1)(B)(iii). Acting




  1
    The court entered a judgment of acquittal on Count I, which charged Defendant with conspiracy
to distribute cocaine base.

                                               3
within this statutory range, the district judge sentenced Defendant to concurrent

terms of 32 years on Count II, 30 years on Count III.



                                                II.



       Defendant asks us to consider his 32-year sentence in the light of the

Supreme Court’s decision in Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63

(2000) (5-4 decision), which -- in the context of a state firearms case -- says that

“any fact [other than prior conviction] that increases sentencing beyond the

statutory maximum must be submitted to the jury and found beyond a reasonable

doubt.” Id. at 2362-63.2

                                                A.

       At his trial, Defendant argued that the issue of drug quantity should go to the

jury. Therefore, we review Defendant’s constitutional issue de novo, but we will

reverse or remand only for harmful error. See United States v. Mills, 138 F. 3d

928, 937-39 (11th Cir. 1998).




  2
    Defendant does not challenge his concurrent 30 year sentence for Count III, which does not rely
on drug quantity and does not exceed the statutory maximum. 21 U.S.C. § 841(b)(1)(C).

                                                4
         This circuit applies Apprendi to sentencing under 21 U.S.C. §§ 841(b)(1)(A)

& (B), which determine sentencing ranges based on drug quantity. United States v.

Rogers, 228 F.3d 1381, slip op at 81 (11th Cir. 2000). Defendant was sentenced to

32-years for Count II for possession of 14.8 grams of cocaine base.3 With no

finding of drug quantity, the statutory maximum is ordinarily 20 years for each

count. 21 U.S.C. § 841(b)(1)(C). Where, as here, the defendant has prior drug

felony convictions, the maximum sentence absent drug quantity is 30 years per

count.

         Apprendi requires the judge to submit to the jury an element of sentencing

that would increase the sentence beyond the statutory maximum. Apprendi, 120 S.

Ct. at 2361 n.13. Because Defendant was sentenced under § 841(b)(1)(A) and

because his 32-year sentence exceeds the 30-year statutory maximum for each

count, an error has occurred.

         But failure to submit the issue of drug quantity to the jury is, in this case,

harmless error that does not require reversal. Apprendi did not recognize or create




   3
     The Sentencing Guidelines are not subject to the Apprendi rule. Apprendi, 120 S. Ct. at 2366
n. 21. The Guidelines allow the sentencing judge to consider relevant conduct to determine overall
drug quantity in calculating the base offense level. U.S.S.G. § 1B1.3(a). Thus, while drug quantity
for the underlying substantive offense was 14.8 grams of cocaine base, the judge overall found
425.25 grams of cocaine base for sentencing purposes.

                                                5
a structural error that would require per se reversal.4 United States v. Swatzie, 228

F. 3d 1278, slip op at 48 (11th Cir. 2000). And a constitutional error is harmless if

“it is clear beyond a reasonable doubt that a rational jury would have found the

defendant guilty absent the error.” Neder v. United States, 119 S. Ct. 1827, 1838

(1999) (applying harmless error analysis to failure to submit issue of materiality to

jury); see also Swatzie 228 F. 3d slip op at 48 (noting that “error in Neder is in

material respects indistinguishable from error under Apprendi”). Harmless error is

appropriate because it “block[s] setting aside [sentences] for small errors or defects

that have little, if any, likelihood of having changed the result of the trial.” Neder,

119 S. Ct. at 1839 (quoting Chapman v. California, 87 S. Ct. 824, 827 (1967). We

must affirm Defendant’s sentence if the record does not contain evidence that

could rationally lead to a contrary finding with respect to drug quantity. See

Neder, 119 S. Ct. at 1837.



    4
      Structural error occurs only in the rare instance involving a “structural defect affecting the
framework within the trial proceeds, rather than simply an error in the trial process itself.” Arizona
v. Fulminante, 111 S. Ct. 1246, 1265 (1991). Examples of structural error involve extreme
deprivations of constitutional rights, such as denial of counsel, denial of self representation at trial,
and denial of a public trial. See Neder v. United States, 119 S. Ct. 1827, 1833 (1999) (listing
examples of structural error). Failure to submit the issue of drug quantity to the jury is just an
element of the trial process and does not rise to the level of structural error requiring per se reversal.
See id. (concluding that failure to include element of offense in jury instruction is not structural error
because it “does not necessarily render a criminal trial fundamentally unfair or unreliable vehicle
for determining guilt or innocence”) (emphasis in original); see also United States v. Fern, 155 F.3d
1318, 1327 (11th Cir. 1998).

                                                    6
      When the police initially searched Defendant’s residence, they found 14.8

grams of cocaine base located in Defendant’s backpack, which also contained

Defendant’s identification card. This amount was uncontested at trial and

sentencing. An officer testified at trial that Defendant at the scene admitted that

the cocaine base was his. Defendant was convicted for this possession (count II);

and, given the undisputed evidence about drug quantity, no reasonable jury could

have rationally concluded that Defendant was guilty of the substantive offense --

possession, with intent to distribute of the cocaine base in his backpack -- but that

the amount of cocaine possessed was less than 5 grams. See generally United

States v. Rogers, 94 F.3d 1519, 1526 (11th Cir. 1996) (noting that instructional

omission is harmless “where the jury has necessarily found certain other predicate

facts that are so clearly related to the omitted element that no rational jury could

find those facts without also finding the element.”). Thus, we affirm Defendant’s

32-year sentence for Count II under 21 U.S.C. § 841(b)(1)(B)(iii), which carries a

maximum life sentence for defendants with a prior felony drug conviction, because

failure to submit drug quantity to the jury was harmless beyond a reasonable doubt.

                                          B.

      Defendant also argued for the first time in his supplemental brief that

Apprendi requires the indictment to include the element of drug quantity. But


                                           7
because Defendant failed to raise this issue at trial or in his initial brief, he

abandoned this issue; and we will not consider it here.5

       Parties must submit all issues on appeal in their initial briefs. Fed. R. of

App. Proc. 28(a)(5); 11th Cir. R. 28-1(h). When new authority arises after a brief

is filed, this circuit permits parties to submit supplemental authority on

“intervening decisions or new developments” regarding issues already properly

raised in the initial briefs. 11th Cir. R. 28-1 I.O.P. 6 (emphasis in original). Also,

parties can seek permission of the court to file supplemental briefs on this new

authority. 11th Cir. R. 28-1 I.O.P. 5. But parties cannot properly raise new issues

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

or new developments cited in the supplemental authority. See McGinnis v. Ingram

Equipment Co., Inc., 918 F.2d 1491, 1495-96 (11th Cir. 1990) (distinguishing

between “new arguments and issues not presented until a late stage of the

proceedings” and “new law that could be applied to arguments already developed”

and noting that waiver usually bars the former situation).

       Here, Defendant initially argued at trial and in his initial brief that the

question of drug quantity should be submitted to the jury. When the Supreme



   5
    We note, however, that the indictment likely only needs to reference the statute. United States
v. Fern, 155 F.3d 1318, 1325 (11th Cir. 1998).

                                                8
Court handed down Apprendi, we ordered the parties to submit supplemental

briefing on Apprendi. But in his supplemental brief, Defendant could not properly

raise totally new issues even if those issues were also based on Apprendi.6 Thus,

Defendant abandoned the indictment issue by not raising the issue in his initial

brief. See United States v. Blasco, 702 F.2d 1315, 1332 n.28 (11th Cir. 1983)

(refusing to consider issues raised for first time in Notice of Supplemental

Authority); see also United States v. Voigt, 89 F.3d 1050, 1064 n.4 (3rd Cir. 1996)

(concluding defendant waived issue when he raised it for the first time at oral

argument); United States v. DeMasi, 40 F.3d 1306, 1318 n.12 (1st Cir. 1994)

(finding issue raised for first time in reply brief waived); United States v. Jones, 34

F.3d 495, 499 (7th Cir. 1994) (“[A]n argument not made in the opening brief is

waived.”).



                                                III.



       Defendant next argues that the government violated his due process rights in

not filing a motion to depart based on substantial assistance. The government

  6
   Because the supplemental briefs were ordered concurrently, and because the indictment had not
earlier been made an issue, the government did not address the indictment issue. There was no
reason for them to do so. Even now, after lots of briefing, the indictment issue has been briefed by
only one side. We decline to decide the issue.

                                                 9
conceded that Defendant provided substantial assistance in participating in

controlled drug buys and testifying against his supplier, who was ultimately

convicted. But the government filed no substantial assistance motion because five

days after testifying against his supplier, Defendant was arrested for again

possessing with intent to distribute cocaine base.7 The decision to decline filing a

motion to depart does not violate due process.

        Under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, the government has “a

power, not a duty, to file a motion when a defendant has substantially assisted.”

Wade v. United States, 112 S. Ct. 1840, 1843 (1992). In Wade, the Supreme Court

limited the free exercise of that power only to the extent that the government

cannot exercise that power, or fail to exercise that power, for an unconstitutional

motive. Id. at 1844 (citing race and religion as examples of unconstitutional

motive).

        Defendant has not alleged an unconstitutional motive; instead, Defendant

argues that the government cannot refuse to file a substantial assistance motion for

“reasons other than the nature of [defendant’s] substantial assistance.” United

States v. Anzalone, 148 F.3d 940, 941 (8th Cir. 1998). But this contention is not

    7
     Two weeks earlier, in a letter to Defendant about his cooperation with law enforcement, the
government notified Defendant that “[i]f it is learned that you have committed any further crime or
provide any false information since your cooperation began, I will recommend that your case be
prosecuted federally and that you receive no consideration for cooperation.”

                                                10
supported by Wade and is contrary to the broad grant of prosecutorial discretion

recognized by this court. United States v. Forney, 9 F.3d 1492, 1503 n.4 (11th Cir.

1993) (concluding that judicial review of failure to file substantial assistance

motion is limited to unconstitutional motive and acknowledging “[c]ourt’s

reluctance to enter into the prosecutorial discretion arena of the executive branch”);

see also United States v. Orozco, 160 F.3d 1309, 1315-16 (11th Cir. 1998). To the

extent that the Eighth Circuit has held otherwise, we expressly disavow that

approach and limit our review of the government’s refusal to file substantial

assistance motions to claims of unconstitutional motive.

      AFFIRMED.




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