Do-overs?

In the wake of Blakely, I have lately been recalling childhood days when a simple shout of “Do-over!” could remedy mistakes on the playground. (I also recall when some clever kids started shouting a “No Do-overs!” prohibition at a game’s outset; future lawyers, no doubt.). These thoughts arise because the potential number of sentencing “do-overs” after Blakely is mind-boggling. Even putting aside questions of retroactivity, the Acting SG has already said that many of the “thousands of sentencings” currently in the works “may have to be redone once [the Supreme] Court settles the applicable law.” Booker/Fanfan Reply Brief at 2 (background here)

It is obviously with an eye to limiting the number of “do-overs” that the Fourth Circuit in its order in Hammoud recommends announcing a “backup sentence” (details here), and the same impulse obviously has influenced Judge Cassell and others district judges to announce backup or alternative sentences during this time of uncertainty. But, as I started to discuss here, I am not sure there is anything lower courts can do now to prevent the need for future do-overs. First, it is possible (probable?) that the Supreme Court will apply Blakely to the federal guidelines in a novel way so as to create applicable sentencing rules that no one has heretofore thought to apply. Second, I think every defendant sentenced during this period of great uncertainty has an arguable claim that due process requires re-sentencing (perhaps with the submission of new evidence) once the legal rules are clarified. Though courts, for reasons of “judicial economy,” will likely resist allowing too many do-overs, questions about who will get resentenced (and how and when) will all have to be litigated.

As evidence that lower courts are going to resist “do-overs” however they can, we get this per curiam opinion in US v. Levy from the Eleventh Circuit, which seems to seriously limiting opportunities to raise Blakely issues even while a case is still on direct appeal. For a host of legal and policy reasons, I find the Levy decision’s waiver conclusion quite troubling (and I hope readers might use the comments to provide more insights). Here are the highlights from Levy (or lowlights if you are a defendant or defense attorney):

Appellant Levy’s Petition [for Rehearing] seeks to raise a new sentencing issue based on Blakely… Levy’s Petition concedes that his initial brief on appeal did not claim that he had a Sixth Amendment right to a jury trial on his federal sentencing enhancements…. In denying Levy’s Petition, we do not entertain this new issue because Levy did not timely raise it in his initial brief on appeal. This Court repeatedly has refused to consider issues raised for the first time in a petition for rehearing….

To allow a new issue to be raised in a petition for rehearing, or a supplemental brief, or a reply brief circumvents Federal Rule of Appellate Procedure 28(a)(5), which requires that an appellant’s initial brief must contain “a statement of the issues presented for review” [and] our practice has been longstanding. As we have explained, the rule requiring that issues be raised in opening briefs “serves valuable purposes, as do all of the procedural default rules, which is why we regularly apply them.”….

For the reasons discussed above, we conclude that Appellant Levy has waived his Blakely-type claim by not raising it in his initial brief on appeal. Accordingly, Levy’s Petition for Rehearing is denied.