The Final Word Reply Briefs Supplemental Authority Letters

The Final Word: Reply Briefs Supplemental Authority Letters Supplemental Briefs

Replies in the district court: where you can try to have the final word. Local Rule 3. 01(c) & (d): (c) No party shall file any reply or further memorandum directed to the motion or response allowed in (a) and (b) unless the Court grants leave. (d) A motion requesting leave to file either a motion in excess of twenty-five (25) pages, a response in excess of twenty (20) pages, or a reply or further memorandum shall not exceed three (3) pages, shall specify the length of the proposed filing, and shall not include, as an attachment or otherwise, the proposed motion, response, reply, or other paper.

Reply Briefs in the 11 th Circuit – have the final word. Contents – 11 th Cir. R. 28 -3. Time for filing – 11 th Cir. R. 31 -1(a). Length and form – FRAP 32 and 11 th Cir. R. 32.

The process (at first)

Contents not limited to the minimum requirements

Preliminary Statement Example: Mr. X maintains Issues II and III raised in his initial brief for purposes of further review, without further reply. Initial Brief of Appellant X at 2, 16 -18 (11 th Cir. Sept. 30, 2015) (“Initial Br. ”). By filing this reply, Mr. X does not waive any argument presented in his initial brief nor concede any factual statement or argument presented in the Brief of the United States (11 th Cir. Nov. 2, 2015) (“Gov’t Br. ”).

Reestablish Your Position First

Then Move the Ball

Example – reestablish first: REPLY ARGUMENT AND CITATIONS OF AUTHORITY The District Court Erred By Imposing Home Detention Not as An Alternative to Incarceration For violating his supervised release by using cocaine on two occasions, the district court sentenced Appellant X to 1 year of imprisonment and 2 years of supervised release, including a 6 -month period of home detention. Doc. 295 at 1 -4; Doc. 302 at 3, 13 -14. As Mr. X demonstrated in his initial brief, the district court erred in imposing the 6 -month period of home detention. See Initial Brief of Appellant X at 7 -12 (11 th Cir. Jan. 27, 2016) (“Initial Br. ”). The governing statutes expressly provide that home detention may be imposed only as an alternative to incarceration. See 18 U. S. C. § 3583(d), (e)(4); 18 U. S. C. § 3563(b)(19). And, the sentencing guidelines similarly provide that home detention is a substitute for incarceration. See U. S. S. G. §§ 5 D 1. 3(e)(2), 5 F 1. 2, 7 B 1. 3(c)(2). Despite these clear provisions, at no time during the final revocation hearing did the district court address home detention as an alternative to, or substitute for, any period of incarceration. See Doc. 302 at 4 -13. The district court thus erred.

. . . then move the ball: On appeal, the government contends that Mr. X’s sentence conforms with the governing statutes and sentencing guidelines. See Brief of the United States at 7 -17 (11 th Cir. Mar. 21, 2016) (“Gov’t Br. ”). The government, however, is incorrect. As shown below, the statutes are clear that home detention may be imposed only as an alternative to incarceration (see Reply Argument A, infra); the district court did not substitute home detention for a portion of a term of imprisonment in accordance with U. S. S. G. § 7 B 1. 3(c)(2) (see Reply Argument B, infra); and, even assuming arguendo plain-error review applies, Mr. X is entitled to relief (see Reply Argument C, infra).

Government facts: dispute or amplify Can be done in: 1. a reply statement of facts, or 2. the reply argument.

Example – disputed facts: The record, however, does not show (see GSB at 13 -14) that X was the one who “planned the route. ” Doc. 94 at 22; see Doc. 98 at 222 -29; Doc. 99 at 5 -11. Additionally, defense counsel argued at sentencing, in support of minor role, that X had been “hired by the Jamaicans” and “was flown over to” Colombia (Doc. 101 at 9); defense counsel did not state that X had been hired “to bring coconspirators into Colombia” (see GSB at 4).

Example – important undisputed fact: The government agrees that “the court’s statement that [Mr. X] had been deported several times and had come back to the United States was technically incorrect. ” Corrected Brief of the United States at 15 (filed with motion on Nov. 19, 2015) (“Gov’t Br. ”). As the government recognizes, Mr. X was deported once, on March 31, 2005. See Gov’t Br. at 5 & n. 1.

Reply Argument Why do you win?

Supplemental authority letters FRAP 28(j) 350 words.

Example:

Respond to gov’t supplemental authority letters – have the final word again

Example:

Supplemental briefs on appeal – ask for leave to file. v See 11 th Cir. R. 28 -IOP 5. 2 types: v Issues already raised in the initial brief, when 350 words will not do. See, e. g. , Order granting opposed motion for leave to file supplemental briefs, United States v. Cruickshank, Appeal No. 14 -13754. v To raise a new issue, after the initial brief has been filed, based on a new Supreme Court decision overruling a prior Supreme Court or published 11 th Circuit decision. See United States v. Durham, 795 F. 3 d 1329, 1331 (11 th Cir. 2015) (en banc).

Keep fighting. . .