Another round on Levy from the 11th Circuit

The Eleventh Circuit started the Booker day early with yet another opinion in the Levy case (previously discussed here and here).  In Levy, the court continues to refuse to consider a Blakely/Booker claim that was not timely raised in the appellant's initial brief (which was filed before Blakely came along), but raised after Blakely was decided.  Despite two prior opinions, a subsequent Supreme Court GVR for further consideration in light of Booker forced the Eleventh Circuit to explain again through US v. Levy, No. 01-17133 (11th Cir. July 12, 2005) (available here), why it refuses to even consider the defendant's Blakely/Booker claim. 

I believe that most of the other circuits are considering Blakely/Booker claims in pipeline cases even when the claim was not raised in the appellant's initial brief (although a reader has now confirmed for me that the Fifth Circuit is taking the same basic approach as the Eleventh).  Some might have expected the Supreme Court's GVR of Levy to have led the Eleventh Circuit to consider the appellant's Blakely/Booker claim.  (As a lawyer said in an e-mail to me: "I can't see any way to interpret the Supreme Court GVR as meaning anything other than, 'yes, we hear you and understand that you were refusing to apply Booker to this case, but we're telling you to do so.'")  But the Eleventh Circuit is sticking to its original refusal to consider the claim.  I suspect a cert. petition might follow to give the Supreme Court one more look at the Levy apple, though I am not about to predict whether SCOTUS might take another bite.

UPDATE: Another lawyer writes in to suggest a different possible interpretation of the Supreme Court's GVR in Levy:

Here's an alternative [way to understand the Levy GVR]: "Oh look, here is a cert petition... and it raises a Booker claim... and the date of the court of appeals decision is prior to June 24, 2004 ... well, that's easy, send it back... where's the sunscreen? I have a plane to catch."  I doubt the Court takes a closer look than that at any of the 600+ petitions raising Booker claims that they have GVRd.

Meanwhile, attorney David Oscar Markus discusses Levy in this post at his new blog.