Smith: Applying Levy

In U.S. v. Smith, No. 03-15299 (July 18, 2005), the Court (Hull, Marcus, Hancock b.d.), after a remand from the Supreme Court for further consideration in light of Booker, applied its Levy rule and held that Smith was not entitled to raise a Booker challenge because he failed to raise the issue in his initial brief on direct appeal. The Court explained that the Supreme Court had applied its own prudential rule in Pasquantino in declining to consider a Booker issue, because the issue was not raised in the Court of Appeals or in a brief in the Supreme Court. Further, the Court noted that it was not "unduly harsh" or "overly burdensome" to require counsel to raise issues in their initial brief, even issues that appear foreclosed by circuit precedent.