227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) — applied retroactively to vacated Pizarro’s sentence and remanded for resentencing, and after Pizarro had filed his opening brief in this third appeal. The fact that the Supreme Court denied Pizarro’s petition for a writ of certiorari after his first appeal, Pizarro-Morales v. United States, 546 U.S. 1199, 126 S.Ct. 1397, 164 L.Ed.2d 99 (2006), does not change the fact that his judgment of conviction was not final at the time Alleyne was decided, given that we had vacated his sentence and remanded for resentencing. See Berman, 302 U.S. at 212, 58 S.Ct. 164 (indicating that a judgment of conviction would not be final if the sentence were vacated); see also Mercer v. Theriot, 377 U.S. 152, 153, 84 S.Ct. 1157, 12 L.Ed.2d 206 (1964) (per curiam) (<HOLDING>); Dodson, 291 F.3d at 276 n. 3 (citing Mercer
holding that supreme court need not consider issue not raised in petition for certiorari holding that even a remand by the supreme court for reconsideration in light of an intervening court opinion does not require the court to consider an argument raised for the first time in a petition for certiorari holding it is settled that the supreme court may consider questions raised on the first appeal after which the court denied a petition for a writ of certiorari as well as those that were before the court of appeals upon the second appeal after which the court granted a petition for a writ of certiorari internal quotation marks omitted holding that this court will consider a petition for a writ of certiorari only after the court of appeals has overruled the application for rehearing on the point challenged in the petition implying that the decision by the court of criminal appeals must be final before certiorari review would be available recognizing the right to petition for writ of certiorari as a form of appellate review