In U.S. v. Levy, No. 01-17133 (July 12, 2005), the Court (Anderson, Hull, Pryor), on remand from the Supreme Court for further consideration in light of Booker, reaffirmed its prior reported decisions in the case, and held that a defendant whose case was on appeal when Booker was decided waived a Booker challenge when he failed to raise a Booker claim in an initial brief on appeal.
The Court pointed out that the Booker opinion itself stated that the retroactive application of its holding to cases then pending on direct review would depend on "ordinary prudential doctrines." The Court further pointed out that in two recent cases, Shea v. Lousiana and Pasquantino v. United States, the Supreme Court recognized the applicability of ordinary rules of waiver to cases pending on direct review. "It seems relatively obvious that if the Supreme Court may apply its prudential rules to foreclose a defendant's untimely [Booker] claim, there is no reason why this Court should be powerless [to do so too]." The Court further noted that parties could, and did, challenge the constitutionality of the Guidelines pre-Booker, and reasoned that its waiver rule was not, therefore, unduly harsh.
