United States v. Jeremy Graham , 135 F. App'x 276 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
U.S. COURT OF
No. 03-16160 APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ JUNE 13, 2005
THOMAS K. KAHN
D. C. Docket No. 03-00019-CR-4-SPM CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEREMY GRAHAM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 13, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before BLACK, BARKETT and COX, Circuit Judges.
PER CURIAM:
Jeremy Graham was convicted of possession with intent to distribute
methylenedioxymethamphetamine, better known as “Ecstasy,” in violation of 21
U.S.C. § 841(a), and possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g). The district court sentenced Graham to serve concurrent terms of
295 months on each count, and we affirmed his convictions and sentences. The
Supreme Court vacated our judgment in this case and remanded it to us for further
consideration in light of United States v. Booker, ___U.S.___, 125 S. Ct. 738 (2005).
See United States v. Graham, No. 03-16160 (11th Cir. July 15, 2004) vacated, 125
S. Ct. 1098 (2005). We directed the parties to file supplemental briefs addressing (1)
where, when, and how the Booker issue was first raised; (2) whether the Booker issue
was timely raised; and (3) how the Booker decision applies to this case. Because we
conclude that the Booker issue was not raised in a timely manner, we reinstate our
previous opinion affirming Graham’s convictions and sentences.
Graham first challenged the constitutionality of his sentence in a petition for
rehearing. In that petition, Graham argued he was entitled to be resentenced by the
district court. Graham based his argument on the Supreme Court’s decision in
Blakely v. Washington, ___U.S.___, 124 S. Ct. 2531 (2004), which Graham suggested
invalidated the Sentencing Guidelines.
We have repeatedly held that we will not consider issues raised for the first
time in a petition for rehearing. See, e.g., United States v. Levy, 379 F.3d 1241, 1242
(11th Cir.), reh’g en banc denied, 391 F.3d 1327 (11th Cir. 2004). Graham concedes
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that our precedent appears to “bar review entirely.” (Appellant’s Supplemental Letter
Brief, p. 2). Nevertheless, Graham urges us to reconsider our precedent, and accept
his Blakely/Booker argument as timely so that we may reach the merits of his
argument.
Under our prior panel rule, we are bound by the holdings of earlier panels
unless they are clearly overruled en banc or by the Supreme Court. See Swann v. S.
Health Partners, Inc., 388 F.3d 834, 837 (11th Cir. 2004). And, we have held that
we will not consider issues argued for the first time in a petition for rehearing. Levy,
379 F.3d at 1242. By arguing that our precedent on this issue is wrongly decided,
Graham has preserved his contentions for further appellate review, both in this court
and in the Supreme Court. But as a panel we are bound by our precedent. Thus, we
conclude that Graham’s constitutional attack on his sentences, first presented in his
petition for rehearing, is untimely.
Our previous decision in this case, United States v. Graham, No. 03-16160
(11th Cir. 2004), affirming Graham’s convictions and sentences, is REINSTATED.
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