In U.S. v. Pipkins, No. 02-14306 (June 20, 2005), the Court reaffirmed its Levy rule, and, on remand from the Supreme Court for further consideration in light of Booker, held that a defendant could not raise a Booker challenge to his sentence for the first time in an en banc rehearing petition.
The Court recognized that prior to the Supreme Court’s decision in Blakely, its caselaw did not support a Blakely-type challenge to a sentence. "Even if our precedent at the time foreclosed their argument, the Defendants still had to raise this issue in their initial brief and assert that our precedent was wrongly decided in order for us to consider it. It is through this process that the law evolves."