stating that government waives non-jurisdictional argument by failing to raise it on appeal
How later courts described this case
- stating that government waives non-jurisdictional argument by failing to raise it on appeal
- documents that are inconsistent with the rules may constitute the “functional equivalent of a proper notice of appeal”
Written by the judges who cited it.
The opinion
ROVNER, Circuit Judge,
concurring in the judgment.
I agree that a remand is required in this case. I do not join the court’s opinion, however, because my colleagues imply that it was improper for the district court to grant Nichols a minor-participant reduction under section 3B1.2 of the Sentencing Guidelines when that issue was neither raised nor briefed in this appeal. (See ante at 1141-1142.) Indeed, the court’s discussion of the issue is entirely gratuitous, as it affects no issue raised in this post-conviction proceeding. Moreover, I fear that the court’s discussion will serve only to muddy this circuit’s law concerning when members of large drug conspiracies should be considered minor participants. Although I fully agree that a drug courier is not necessarily a minor participant by virtue of his status as a courier, I cannot agree that drug couriers can never be minor participants. {See id.) Here, for example, the district court did not consider Nichols a minor participant because he was a courier; it granted the reduction because Nichols was relatively new to the narcotics operation and was less culpable than its other members. The government has never suggested that the court’s finding was in error, but my colleagues necessarily imply that it was. On the limited record before us, I do not see how the court’s finding was the least bit erroneous, let alone clearly so. We should have refrained from any comment on the issue.
Second, I wish to clarify one point about Nichols’ due process claim. As far as I can tell from the record, this claim was never raised on direct appeal, and it would therefore be defaulted unless Nichols could establish cause for the earlier omission. United States v. Frady, 456 U.S. 152, 168 , 102 S.Ct. 1584, 1594 , 71 L.Ed.2d 816 (1982). Of course, the fact that Nichols’ trial and appellate counsel may have been ineffective could provide cause for the default, but Nichols has never offered such an explanation. To this point, however, the government has bailed him out, as it has yet to argue that the due process claim was defaulted when Nichols failed to raise it on direct appeal. I therefore agree that the claim should go forward.