UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
SYLENA BRITT, DEFENDANT-APPELLANT

11th Cir. | 2006-01-26
No. 04-10151
Before BLACK, CARNES and HULL, Circuit Judges.
437 F.3d 1103 Court of Appeals for the Eleventh Circuit (2006) Positive Treatment
Cited by 13 cases
Opinion of the Court
PER CURIAM:

PER CURIAM: This case is before the Court for consideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

We previously affirmed Britt’s sentence. United States v. Britt, 388 F. 3d 1369 (11th Cir.2004).

The Supreme Court vacated our prior decision and remanded the case to us for further consideration in light of Booker. In her initial brief on direct appeal, Britt did not assert error based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or any other case extending or applying the Apprendi principle. In her reply brief, Britt asserted for the first time that the application of a U.S.S.G. § 3B1.3 enhancement for an abuse of a position of trust was unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

Because Britt did not raise the Blakely argument in her initial brief, the Government filed a motion to strike the issue from the reply brief. We granted the Government’s motion. Alternatively, Britt requested leave to file a supplemental brief addressing Blakely. We denied Britt’s motion to file a supplemental brief. After we affirmed Britt’s sentence, Britt filed a petition for rehearing in which she once again argued that her sentence violated Apprendi Blakely, and the Fifth and Sixth Amendments of the Constitution. We denied her petition for rehearing. In United States v. Levy, 416 F. 3d 1273, 1275-76 (11th Cir.), cert. denied, — U.S. -, 126 S.Ct. 643, 163 L.Ed.2d 520 (2005), we summarized our prudential rule of declining to consider issues not timely raised in a party’s initial brief. Parties must submit all issues on appeal in their initial briefs. 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. Also, parties can seek permission of the court to file supplemental briefs on this new authority. 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. Id. (quoting United States v. Nealy, 232 F. 3d 825, 830 (11th Cir.2000)).

We expressly stated that we decline “to consider issues raised for the first time in an appellant’s reply brief,” and that we “repeatedly ha[ve] denied motions to file supplemental briefs that seek to raise new issues not covered in an appellant’s initial brief on appeal.” Id. at 1276 n. 3 (citations omitted).

Because Britt did not assert error based on Apprendi (or its progeny) in her initial brief on appeal and raised the issue for the first time in her reply brief, we reinstate our previous opinion in this case and affirm Britt’s sentence after our reconsideration in light of Booker, pursuant to the Supreme Court’s mandate. OPINION REINSTATED IN PART; AFFIRMED IN PART.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • United States v. Ghertler, 605 F.3d 1256 (11th Cir. 2010)
    …ial Security cards and "was so loosely supervised that she was able, over a period spanning more than four years,” to commit fraud without detection), vacated on other grounds, 546 U.S. 930, 126 S.Ct. 411, 163 L.Ed.2d 313 (2005), reinstated in part, 437 F. 3d 1103 (11th Cir.2006). . Alternatively, the PSR recommended a two-level enhancement under U.S.S.G. § 2B 1.1 (b)(9)(A) because “the defendant relocated or participated in relocating a fraudulent scheme to another jurisdiction to evade law enforcement.” Bec…
  • MAY v. Morgan Cnty. Ga., 878 F.3d 1001 (11th Cir. 2017)
    …or § 5-3-20(a)’s bar. May makes only a passing reference to that potential argument in a single footnote in her reply brief, violating our requirement that ”[p]arties ... submit all issues on appeal in their initial briefs.” United States v. Britt, 437 F. 3d 1103, 1104 (11th Cir. 2006). For that reason, we consider this issue abandoned. Sapuppo v. Allstate Floridian Ins. Co., 739 F. 3d 678, 681 (11th Cir. 2014) ("We have long held that an appellant abandons a claim when he either makes only passing refere…
  • United States v. Sanchez, 940 F.3d 526 (11th Cir. 2019)
    …me in his reply brief and discussed only briefly, that his New York conviction under § 125.25(1) does not qualify under the ACCA's elements clause because it was for attempted, rather than completed, second-degree murder. See United States v. Britt, 437 F.3d 1103, 1104 (11th Cir. 2006). [fn 8]: As part of his argument, Sanchez relies on People v. Steinberg, 79 N.Y.2d 673, 595 N.E.2d 845 (N.Y. 1992). In response, the government correctly points out that the defendant in Steinberg was not convicted of second-…

Previewing 3 of 8 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