          Case: 14-12198   Date Filed: 08/05/2015   Page: 1 of 6


                                                                   [PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                      Nos. 14-12198 & 14-12807
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 0:13-cr-60270-WJZ-1



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                 versus

WAYNE DURHAM,

                                                        Defendant-Appellant.

                     ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                    ________________________



Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON,
WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and
JILL PRYOR, Circuit Judges.
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BY THE COURT:

      Wayne Durham is an appellant who was convicted by a jury of one count of

possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1)

and of one count of possession with intent to distribute cocaine in violation of 21

U.S.C. § 841(a)(1), (b)(1)(C). At sentencing he was found to be an Armed Career

Criminal under 18 U.S.C. § 924(e) and was sentenced to 288 months

imprisonment.

      In his opening brief to this Court, which was filed in November of 2014,

Durham challenged his sentence as substantively unreasonable but he did not raise

any issue involving application of the ACCA to him. In January of 2015, the

Supreme Court ordered reargument and supplemental briefing in Johnson v. United

States, 135 S. Ct. 939 (2015), on the issue of whether the residual clause of the

ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. A few days later,

the government filed its answer brief in Durham’s appeal, which did not mention

the ACCA. He did not file a reply brief.

      In March of 2015, Durham filed a motion seeking to stay his appeal pending

the decision in Johnson and for permission to file a supplemental brief after the

Supreme Court issued the Johnson decision. That motion is still pending. In June

of 2015, the Supreme Court issued its decision holding that the residual clause of




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the ACCA is unconstitutionally vague. Johnson v. United States, — U.S. —, 135

S. Ct. 2551 (2015).

         In the supplemental brief he proffered with his motion, Durham contended

that if the ACCA’s residual clause were held to be unconstitutional only two of his

prior convictions would qualify as violent felonies and, as a result, the ACCA

should not have been applied to him. Whether Durham’s contention about the

merits of the ACCA issue in his case is correct is not a matter we are going to

decide as an en banc court. Instead, we grant hearing en banc on the following

issue:

         Should this Court overturn its precedent barring an appellant from
         asserting an issue that was not raised in his opening brief where the
         issue is based on an intervening Supreme Court decision that changes
         the law? 1
Having granted hearing en banc on that issue, we decide it as follows: Where

precedent that is binding in this circuit is overturned by an intervening decision of

the Supreme Court, we will permit an appellant to raise in a timely fashion

thereafter an issue or theory based on that new decision while his direct appeal is

still pending in this Court.




         1
          We gave the government an opportunity to brief whether we should hear this issue en
banc and, if so, whether we should change our precedent as described in the statement of the
issue. Because the government answered both questions in the affirmative, and Durham’s
position had already been made clear in his motion to file a supplemental brief, we did not put
his attorney to the trouble of reiterating that position.
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      Our longstanding case law rule is that an appellant who does not raise an

issue in his opening brief may not do so in his reply brief, in a supplemental brief,

in a rehearing petition, or on a remand from the Supreme Court, even if the issue is

based on an intervening decision of the Supreme Court. See, e.g., Hamilton v.

Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012); United States

v. Dockery, 401 F.3d 1261, 1263 (11th Cir. 2005); United States v. Ardley, 242

F.3d 989, 990 (11th Cir. 2001); United States v. Nealy, 232 F.3d 825, 830–31

(11th Cir. 2000). There are some reasons to have such a rule. See, e.g., United

States v. Levy, 416 F.3d 1273 (11th Cir. 2005); United States v. Ardley, 273 F.3d

991, 991–95 (11th Cir. 2001) (Carnes, J., concurring in the denial of rehearing en

banc). And there are some reasons not to have such a rule. See, e.g., Joseph v.

United States, 135 S. Ct. 705, 706 (2014) (Kagan, J., respecting the denial of

certiorari); United States v. Higdon, 418 F.3d 1136, 1148–51 (11th Cir. 2005)

(Tjoflat, J., dissenting from the denial of rehearing en banc); Ardley, 273 F.3d at

996–1007 (Tjoflat, J., dissenting from the denial of rehearing en banc). Apparently

every other circuit has decided that the reasons against having the rule outweigh

those that favor it, at least where the Supreme Court “issues a decision that upsets

precedent relevant to a pending case and thereby provides an appellant with a new

theory or claim.” See Joseph, 135 S. Ct. at 706. Accordingly, we hold that where

there is an intervening decision of the Supreme Court on an issue that overrules


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either a decision of that Court or a published decision of this Court that was on the

books when the appellant’s opening brief was filed, and that provides the appellant

with a new claim or theory, the appellant will be allowed to raise that new claim or

theory in a supplemental or substitute brief provided that he files a motion to do so

in a timely fashion after (or, as in this case, before) the new decision is issued. This

new rule applies in all direct appeals currently pending before us that involve an

intervening Supreme Court decision and in all future direct appeals that do.

      The change in circuit law that our holding makes is enough to decide the

question presented by the motion before us, and that is as far as our holding goes.

We leave our circuit law intact insofar as cases that are no longer pending on direct

appeal are concerned, insofar as any issue that was not previously foreclosed by

binding precedent is concerned, and insofar as any issue based on a Supreme Court

decision that was issued soon enough, as a practical matter, for it to have been

included in the opening brief is concerned. And nothing in this decision loosens

the strictures of the plain error rule, or affects the force of any appeal waiver

agreed to in the district court. The only rule affected is the rule concerning the

effect of a failure to raise a claim or theory in the opening brief that a party files

where that claim or theory is based on an intervening Supreme Court decision.

      Appellant’s motion to file a supplemental brief on the constitutionality of the

ACCA’s residual clause is GRANTED. The Clerk is directed to set a


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supplemental briefing schedule for both sides to argue the effect, if any, of the

decision in Johnson v. United States on the validity of the sentence in this case.

That issue, and the others that the Appellant has raised, will be decided by a panel

of this Court selected according to the usual procedures.

      The motion to stay a decision in this case pending a decision in Johnson is

DENIED AS MOOT.




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