UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
GREGORY WADE HEMBREE, DEFENDANT-APPELLANT

11th Cir. | 2004-08-23
No. 03-16001
Before DUBINA, BLACK and PRYOR, Circuit Judges.
381 F.3d 1109 Court of Appeals for the Eleventh Circuit (2004) Positive Treatment
Cited by 9 cases
Opinion of the Court
BY THE COURT:

BY THE COURT: On July 23, 2004, this court denied Appellant’s motion for leave to file a supplemental brief pursuant to Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

Appellant now files a motion seeking to either file a substitute principal brief, or seeks this court’s reconsideration of its July 23, 2004, Order. Appellant is attempting to do indirectly what he cannot do directly — raise a Blakely issue when it was not raised in his initial brief. This court’s precedent establishes that a party may not raise through a supplemental brief an issue not previously raised in his principal brief. See U.S. v. Curtis, 380 F. 3d 1308, No. 02-16224, 2004 WL 1774785 (11th Cir. August 10, 2004); U.S. v. Levy, 379 F. 3d 1241, No. 01-17133, 2004 WL 1725406 (11th Cir. August 3, 2004); U.S. v. Ford, 270 F. 3d 1346, 1347 (11th Cir.2001); U.S. v. Ardley, 242 F. 3d 989, 990 (11th Cir.2001); U.S. v. Nealy, 232 F. 3d 825, 830 (11th Cir.2000).

Therefore, to the extent that Appellant seeks reconsideration of the July 23, 2004, Order, his motion is DENIED. To the extent that Appellant’s motion seeks to file a substitute principal brief for the purpose of raising a Blakely issue, we hold that sueh Blakely motions to file a substitute or amended principal brief should be construed as motions to file a supplemental brief and should be denied. Such Blakely motions must be construed for what they are. Otherwise, this court would be permitting Appellant, through a motion for a substituted or amended principal brief, to circumvent improperly our above precedent and to do indirectly what Appellant cannot do directly. Nor will we sua sponte order the filing of substituted or amended principal briefs. To do so is impermissible as it too would circumvent improperly the above precedent of this court that forbids raising new issues by supplemental briefs.

Accordingly, Appellant’s motion to file a substitute principal brief is also DENIED.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • United States v. Silvestri, 409 F.3d 1311 (11th Cir. 2005)
    …r.2004) (refusing to consider a claim under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (the predecessor case to Booker), first raised in a letter submitted pursuant to Fed. R.App. P. 28(j)); United States v. Hembree, 381 F. 3d 1109, 1110 (11th Cir.2004) (denying a motion to file a substitute or amended principal brief raising a Blakely claim); United States v. Curtis, 380 F. 3d 1308, 1310-11 (11th Cir.2004), modified on other grounds, 400 F. 3d 1334 (11th Cir.2005) (denying a…
  • United States v. Raphael R. Levy, 391 F.3d 1327 (11th Cir. 2004)
    …20 S.Ct. at 2362-63. . See also United States v. Njau, 386 F. 3d 1039, 1041-42 (11th Cir.2004) (refusing to consider a Blakely claim first raised in a letter submitted pursuant to Federal Rule of Appellate Procedure 28(j)); United States v. Hembree, 381 F. 3d 1109, 1110 (11th Cir.2004) (denying a motion to file a substitute or amended principal brief raising a Blakely claim); United States v. Curtis, 380 F. 3d 1308, 1310-11 (11th Cir.2004) (denying a motion to file a supplemental brief raising a Blakely claim…
  • United States v. Smith, 402 F.3d 1303 (11th Cir. 2005)
    …pplement his initial brief or petition for rehearing in order to raise the claim. See, e.g., United States v. Njau, 386 F. 3d 1039, 1041-42 (11th Cir.2004) (letter submitted under Federal Rule of Appellate Procedure 28(j)); United States v. Hembree, 381 F. 3d 1109, 1110 (11th Cir.2004) (substitute or amended principal brief); United States v. Curtis, 380 F. 3d 1308, 1310-11 (11th Cir.2004) (supplemental brief); Levy, 379 F. 3d at 1241-42 (petition for rehearing). Indeed, the Levy rule applies even if Suprem…

Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw