UNITED STATES of America, Plaintiff-Appellee, v. Anthony Gerald WHITE, Sr., Defendant-Appellant.
No. 04-4349.
United States Court of Appeals, Fourth Circuit.
Argued: Feb. 3, 2005. Decided: April 26, 2005.
405 F.3d 208
Before WILKINS, Chief Judge, DUNCAN, Circuit Judge, and CACHERIS, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Chief Judge WILLIAM W. WILKINS wrote the opinion, in which Judge CACHERIS joined. Judge DUNCAN wrote an opinion concurring in part and dissenting in part.
OPINION
WILLIAM W. WILKINS, Chief Judge:
Anthony Gerald White, Sr., appeals his convictions and sentence for drug and firearm offenses. We find no reversible error in the evidentiary rulings challenged by White and therefore affirm his convictions. Further, although we find that the district court plainly erred under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),1 by treating the sentencing guidelines as mandatory in determining White‘s sentence, we conclude that White has not carried his burden of demonstrating that this error affected his substantial rights. Thus, we affirm White‘s sentence.
I.
This case arises from an investigation by the United States Drug Enforcement Administration (DEA) into drug trafficking activities at public housing complexes in Annapolis, Maryland. In early 2003, DEA agents used a confidential informant to make two controlled purchases of cocaine base from Gerald Hyman. Because these purchases involved communications with Hyman on his cellular telephone, agents obtained authority to conduct wiretaps on that telephone. Agents subsequently recorded calls between Hyman and White indicating that they were engaged in drug trafficking. After conducting additional surveillance of White and Hyman, agents obtained a search warrant for White‘s residence. Upon executing that warrant, officers seized two loaded firearms from a closet in the master bedroom, as well as five boxes of ammunition from a dresser in that bedroom.
White was charged with one count of conspiring to distribute 50 grams or more of cocaine base within 1,000 feet of a public housing facility, see
II.
White first contends that the district court committed two errors in admitting evidence at trial over his objection. We review rulings concerning the admission of evidence for abuse of discretion. See United States v. Hodge, 354 F.3d 305, 312 (4th Cir.2004).
A.
White claims that the district court improperly admitted rebuttal testimony from Cassandra White (Cassandra), one of White‘s alleged coconspirators. White claims that the admission of this testimony violated Rules
On direct examination, White denied any involvement in drug trafficking during the period of the charged conspiracy, January through July 2003, instead claiming that his recorded telephone conversations with Hyman concerned a different illegal activity—the sale of fraudulent automobile insurance documents. White admitted, however, that he sold cocaine for a brief period in 1989. On cross-examination, White clarified that he sold small quantities of powder cocaine approximately once a week during a six-month period in 1989. White further testified that although he had seen Cassandra before, he did not know her personally, nor had he ever sold drugs to her. Over White‘s objection, the district court then permitted the Government to call Cassandra as a rebuttal witness. Although the Government offered various bases for the admission of Cassandra‘s testimony, the district court ultimately concluded that the testimony was admissible under Rule
Rule
Here, White does not challenge the reliability of Cassandra‘s testimony. Rather, he apparently contends that the testimony was irrelevant, unnecessary, and unfairly prejudicial. In particular, White argues that this evidence concerned events factually distinct and temporally remote from the charged conspiracy. We conclude, however, that the evidence of White‘s prior drug sales to Cassandra was relevant and necessary. Contrary to White‘s testimony that he had only dabbled in the drug trade for a brief period, Cassandra‘s testimony tended to show that White had been a regular dealer of narcotics and therefore that he possessed the requisite knowledge and intent to commit the charged offense. See United States v. Sanchez, 118 F.3d 192, 196 (4th Cir.1997) (holding that a not-guilty plea places defendant‘s intent at issue and that evidence of similar prior crimes can thus be relevant to prove intent to commit charged crime); United States v. Mark, 943 F.2d 444, 448 (4th Cir.1991) (explaining that “a defendant‘s knowledge and intent are clearly elements which the prosecution must establish to prove a [narcotics] conspiracy“). Further, as the district court noted, although Cassandra‘s testimony concerned events that were remote in time from the charged offense, the evidence was nonetheless probative because it involved prior drug transactions between White and Cassandra—both of whom were named as coconspirators in the present indictment. See Sanchez, 118 F.3d at 195 (explaining that evidence of earlier narcotics transactions between alleged coconspirators “show[ed] the relationships between the parties“).
Moreover, the probative value of this evidence was not substantially outweighed by the danger that it would cause unfair prejudice. In light of the Government‘s other compelling evidence that White was involved in the charged conspiracy and White‘s admission of some prior drug dealing, we cannot say that the evidence concerning his prior dealings with Cassandra unfairly prejudiced the jury against him. And, any risk of such prejudice was mitigated by a limiting instruction from the district court clarifying the issues for which the jury could properly consider this evidence. See Hodge, 354 F.3d at 312. We therefore conclude that the district court did not abuse its discretion in admitting Cassandra‘s testimony under Rule
B.
White also claims that the district court erred in admitting evidence that a defaced law enforcement badge and a sweatshirt bearing the words “Fugitive Agent” were found in the same dresser drawer as two of the boxes of ammunition seized from White‘s residence. White asserts that the admission of this evidence violated Federal Rule of Evidence 403 because the jury may have inferred that White used the items to impersonate a law enforcement officer. See
Although White admitted that the badge and sweatshirt belonged to him, he denied that those items were found in the dresser containing the ammunition. White and his wife also testified that the ammunition and the dresser in which it was kept belonged solely to her. Thus, the evidence that officers found the badge and sweatshirt in the dresser containing the ammunition was relevant to show that White constructively possessed the ammunition. To obtain a conviction on a theory of constructive possession, the Government must show
In addition, the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice. The Government did not attempt to use this evidence for any purpose other than demonstrating constructive possession. We thus conclude that the district court did not abuse its discretion in refusing to exclude this evidence under Rule 403.
III.
White next argues that under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court erred by treating the sentencing guidelines as mandatory in determining his sentence. White thus contends that he is entitled to “seek resentencing pursuant to the remedial scheme enunciated in Booker.” Supp. Br. of Appellant at 8; see Booker, 125 S.Ct. at 769. Because White did not raise this issue in the district court, our review is for plain error. See
As we recently explained in United States v. Hughes, 401 F.3d 540, 546 (4th Cir.2005), Booker held that the Sixth Amendment is violated when a district court, acting pursuant to the Sentencing Reform Act and the guidelines, imposes a sentence greater than the maximum authorized solely by the facts found by the jury. See Booker, 125 S.Ct. at 756. To remedy this Sixth Amendment problem, the Supreme Court severed and excised the statutory provisions that mandated sentencing and appellate review in conformance with the guidelines, see
A.
“In reviewing for plain error, our initial inquiry is whether an error occurred.” United States v. Hastings, 134 F.3d 235, 239 (4th Cir.1998). In determining whether an error occurred here, it is important to understand the specific error asserted by White. At oral argument,
In Booker, the Supreme Court emphasized that “[lower courts] must apply today‘s holdings—both the Sixth Amendment holding and [the] remedial interpretation of the Sentencing Act to all cases on direct review.” Booker, 125 S.Ct. at 769. We specifically recognized this point in Hughes: “The Booker Court concluded that [its] remedial scheme should apply not only to those defendants, like Booker, whose sentences had been imposed in violation of the Sixth Amendment, but also to those defendants, like Fanfan, who had been sentenced under the mandatory regime without suffering a constitutional violation.” Hughes, 401 F.3d at 547; see id. at 553. Thus, even in the absence of a Sixth Amendment violation, the imposition of a sentence under the former mandatory guidelines regime rather than under the advisory regime outlined
B.
“Next, the error must be plain.” Hastings, 134 F.3d at 239. For purposes of plain-error review, “‘[p]lain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.‘” Olano, 507 U.S. at 734. An error is plain at least when “the law at the time of trial was settled and clearly contrary to the law at the time of appeal.” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); see United States v. David, 83 F.3d 638, 645 (4th Cir.1996) (holding that an error is plain when “an objection at trial would have been indefensible because of existing law, but a supervening decision prior to appeal reverses that well-settled law“). After Booker, sentencing courts must treat the guidelines as advisory and consider them along with various other factors in determining a defendant‘s sentence. See Booker, 125 S.Ct. at 764-65. And, based on the directive in Booker that the advisory guidelines regime must be applied to all cases on direct review, we conclude that the error of sentencing White under a mandatory guidelines regime is plain.
C.
Third, White must show that the error of sentencing him under a mandatory guidelines regime “affect[ed][his] substantial rights.” Olano, 507 U.S. at 732 (internal quotation marks omitted). “[I]n most cases [this] means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” Id. at 734; accord Hastings, 134 F.3d at 240. Thus, “[n]ormally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy the ‘affecting substantial rights’ prong of Rule 52(b).” Olano, 507 U.S. at 735. However, the Olano Court noted, without deciding, that there may be “errors that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice” and that “[t]here may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome.” Id. at 735. We consider each of these three possibilities below. See id. at 737.
1.
We first consider whether sentencing White under a mandatory guidelines regime falls within the special category of forfeited errors suggested in Olano “that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice.” Olano, 507 U.S. at 735. Although we have never held that any particular unpreserved error must be presumed prejudicial, we have acknowledged that such errors might exist. See United States v. Rolle, 204 F.3d 133, 139 (4th Cir.2000) (assuming arguendo that such a category of errors exists but concluding that the error in question did not fall within that category); Tipton, 90 F.3d at 875; United States v. Floresca, 38 F.3d 706, 713 n. 16 (4th Cir.1994) (en banc); United States v. Moore, 11 F.3d 475, 481-82 (4th Cir.1993). While we need not decide today the precise circumstances, if any, under which an error should be presumed prejudicial, we believe that any such determination will depend on consideration of two factors: (1) the general risk that defendants subjected to the particular type of error will be prejudiced and (2) the difficulty of proving specific prejudice from that type of error. Cf. Olano, 507 U.S. at 741 (declining to presume prejudice because mere occurrence of error did not create sufficient risk of prejudice).
We recognize that our sister circuits—while sharing our concern for the ability of a particular defendant to establish prejudice—have looked primarily to the gravity of the error, limiting their risk inquiries simply to whether an opportunity for a prejudicial effect existed under the circumstances. See, e.g., United States v. Reyna, 358 F.3d 344, 351-52 (5th Cir.) (en banc) (presuming prejudice from a denial of allocution “given the nature of the right and the difficulty of proving that a violation affected a specific sentence“), cert. denied, 541 U.S. 1065, 124 S.Ct. 2390, 158 L.Ed.2d 966 (2004); United States v. Prouty, 303 F.3d 1249, 1253 (11th Cir.2002) (presuming prejudice from a denial of allocution “[b]ecause allocution plays a central role in the sentencing process” and “a defendant cannot easily demonstrate prejudice” caused by its denial); United States v. Adams, 252 F.3d 276, 287-88 (3d Cir.2001) (presuming prejudice in light of difficulty of proving actual prejudice and because allocution, while not constitutional, is “ancient in origin” and “is the type of important safeguard that helps assure the fairness, and hence legitimacy, of the sentencing process“). We disagree with this emphasis.
Contrary to our sister circuits, we believe it is incorrect to make the gravity of the violated right a principal focus in determining whether prejudice should be presumed. Indeed, courts routinely refuse to reverse convictions and sentences on the basis that a serious error nevertheless did not affect the defendant‘s substantial rights. See, e.g., United States v. Ellis, 326 F.3d 593, 599-600 (4th Cir.) (holding that sentence exceeding statutory maximum by at least 20 years did not affect defendant‘s substantial rights because defendant received equal or longer concurrent sentences on other counts), cert. denied, 540 U.S. 907, 124 S.Ct. 204, 157 L.Ed.2d 194 (2003); Moore, 11 F.3d at 481-82 (holding that statements by prosecutor during closing argument that defendant and coconspirator were “liars,” though “highly improper,” did not affect defendant‘s substantial rights because record showed that statements did not affect outcome of trial; expressly refusing to presume prejudice). As the Supreme
In the case at hand, we conclude that the general risk of harm does not in itself suffice to warrant a presumption of prejudice. Cf. id. (holding that risk of prejudice from improper presence of alternate jurors during jury deliberations was insufficient “to justify a presumption of prejudice“). In any given case after Booker, a district court will calculate, consult, and take into account the exact same guideline range that it would have applied under the pre-Booker mandatory guidelines regime. See Booker, 125 S.Ct. at 767; Hughes, 401 F.3d at 546. This guideline range remains the starting point for the sentencing decision. See Hughes, 401 F.3d at 546. And, if the district court decides to impose a sentence outside that range, it should explain its reasons for doing so. See id. Thus, while we believe that the appropriate circumstances for imposing a sentence outside the guideline range will depend on the facts of individual cases, we have no reason to doubt that most sentences will continue to fall within the applicable guideline range.
Our holding with respect to this factor is consistent with the substantial rights analysis undertaken by the Supreme Court in Jones v. United States, 527 U.S. 373, 394-95, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). In Jones, the Court reviewed for plain error a capital defendant‘s claim that certain jury instructions misled the jury into believing that if it did not decide unanimously whether to recommend a life sentence or the death penalty, the judge would impose a sentence less severe than life imprisonment. See Jones, 527 U.S. at 384-95. The Court held that the instructions were not erroneous, see id. at 389-94, but further explained that the defendant could not satisfy the substantial rights prong in part because there was no nonspeculative basis for concluding that the alleged error was prejudicial:
[E]ven assuming that the jurors were confused over the consequences of deadlock, petitioner cannot show the confusion necessarily worked to his detriment. It is just as likely that the jurors, loath to recommend a lesser sentence, would have compromised on a sentence of life imprisonment as on a death sentence. Where the effect of an alleged error is so uncertain, a defendant cannot meet his burden of showing that the error actually affected his substantial rights. Cf. [Romano v. Oklahoma, 512 U.S. 1, 14, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994).] In Romano, we considered a similar argument, namely, that jurors had disregarded a trial judge‘s instructions and given undue weight to certain evidence. In rejecting that argument, we noted that, even assuming that the jury disregarded the trial judge‘s instructions, “[i]t seems equally plausible that the evidence could have made the jurors more inclined to impose a death sentence, or it could have made them less inclined to do so.” Ibid. Any speculation on the effect of a lesser sentence recommendation, like the evidence in Romano, would have had such an indeterminate effect on the outcome of the proceeding that we cannot conclude that any alleged error in the District Court‘s instructions affected petitioner‘s substantial rights.
Id. at 394-95 (emphasis added).
Furthermore, as to the second factor, the difficulty of proving specific prejudice,
Thus, we conclude that with respect to the error at issue here, neither the general risk that defendants subjected to it will be prejudiced, nor the difficulty of proving specific prejudice, warrant a presumption of prejudice. Our rejection of a presumption of prejudice here is also consistent with our previous decision in United States v. Bros. Construction Co. of Ohio, 219 F.3d 300 (4th Cir.2000). There, Tri-State Asphalt Corporation (Tri-State) was convicted of fraud charges relating to its involvement in a federally funded highway project and was sentenced to pay a fine of $500,000. See Bros. Constr., 219 F.3d at 308. On appeal, Tri-State argued for the first time (and the Government conceded) that the district court improperly calculated the amount of loss attributable to Tri-State‘s conduct and therefore sentenced Tri-State based on an incorrect fine range. See id. at 319. The fine range applied by the district court was $334,503.36 to $669,006.72, while the proper range (according to Tri-State) was $305,077.68 to $610,155.36. See id. at 319.
Reviewing this claim for plain error, we rejected Tri-State‘s argument that our decision in United States v. Ford, 88 F.3d 1350 (4th Cir.1996), established that the imposition of a sentence under an improper guideline range necessarily affects a defendant‘s substantial rights. See id. at 320.8 Further, we determined that Tri-State‘s substantial rights were not affected because “[t]he district court imposed a fine...that was almost exactly in the middle of the fine range used by the district court,” and that fine “would be only slightly above the middle of the fine range as calculated by Tri-State.” Id. at 320. We therefore explained that “[t]here is nothing
In Bros. Construction, there was unquestionably some risk that the defendant received a higher fine as a result of the incorrect calculation of the guideline range. Nevertheless, we did not presume prejudice but instead required the defendant to demonstrate actual prejudice from the error. For the reasons already stated, the error of sentencing a defendant under a mandatory guidelines regime presents an even lower risk of prejudice than the error in Bros. Construction. We thus conclude that a presumption of prejudice is inappropriate here. See United States v. Gonzalez-Huerta, 403 F.3d 727, 734-36 (10th Cir.2005) (en banc) (declining to presume prejudice from error of sentencing under mandatory guidelines regime); United States v. Shelton, 400 F.3d 1325, 1332 n. 8 (11th Cir.2005) (same); United States v. Antonakopoulos, 399 F.3d 68, 80 (1st Cir.2005) (holding that defendant asserting error of sentencing under mandatory regime cannot satisfy substantial rights prong of plain error review merely by demonstrating that had he been sentenced under the advisory regime, he “might have” received a less severe sentence). But see United States v. Barnett, 398 F.3d 516, 527-29 (6th Cir.2005) (adopting rebuttable presumption of prejudice from sentence imposed under the mandatory regime).
2.
We next consider whether the error of sentencing a defendant under a mandatory guidelines regime falls within the other special category of unpreserved errors noted in Olano—errors that may be noticed “regardless of their effect on the outcome,” Olano, 507 U.S. at 735. We have recognized that this language refers to structural errors. See United States v. David, 83 F.3d 638, 647 (4th Cir.1996); cf. Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (stating that structural errors “require automatic reversal (i.e., ‘affect substantial rights‘) without regard to their effect on the outcome“). Although “the vast majority of trial errors” are not, “structural errors are conclusively presumed to affect the substantial rights of the defendant because they ‘deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence...and no criminal punishment may be regarded as fundamentally fair.‘” United States v. Higgs, 353 F.3d 281, 304 (4th Cir.2003) (internal quotation marks omitted) (alteration in original) (quoting Neder, 527 U.S. at 8-9), cert. denied, 543 U.S. 999, 125 S.Ct. 627, 160 L.Ed.2d 456 (2004). The Supreme Court has held particular errors to be structural “only in a very limited class of cases” in which there is “a defect affecting the framework within which the trial proceed[ed], rather than simply an error in the trial process itself.” Neder, 527 U.S. at 8 (internal quotation marks omitted). Such defects include the complete deprivation of counsel, a biased trial judge, racial discrimination in the selection of a grand jury, denial of self-representation at trial, denial of a public trial, and a defective reasonable doubt instruction. See id. (collecting cases). We have cautioned that “judges should be wary of prescribing new errors requiring automatic reversal” and that “before a court adds a new error to the list of structural errors (and thereby requires the reversal of every criminal conviction in which the error occurs), the court must be certain that the error‘s presence would render every such trial unfair.” Sherman v. Smith, 89 F.3d 1134, 1138 (4th Cir.1996) (en banc); see Higgs, 353 F.3d at 305
We decline to classify the error of sentencing a defendant under the pre-Booker mandatory guidelines regime as a structural error. Unlike the errors that the Supreme Court has identified as structural, the treatment of the guidelines as mandatory rather than advisory does not deprive defendants of a “basic protection[]” without which the criminal process is inherently unfair, Neder, 527 U.S. at 8 (internal quotation marks omitted); see id. at 7 (characterizing structural errors as “intrinsically harmful“). A defendant has no inherent right to be sentenced under an advisory guidelines regime. See Booker, 125 S.Ct. at 758-59, 767-68 (concluding that Congress would have preferred to eliminate mandatory nature of guidelines and preserve judicial fact-finding rather than keeping mandatory regime and requiring jury fact-finding); id. at 771 (Stevens, J., dissenting in part) (emphasizing that “[n]either of the two Court opinions that decide these cases finds any constitutional infirmity inherent in [the Sentencing Reform Act or the guidelines],” and that the statutory provisions making the guidelines mandatory are not “even arguably unconstitutional“). Rather, the former mandatory regime had constitutional implications only to the extent that it required judges to impose sentences greater than authorized by the jury‘s verdict. See id. at 777 (Stevens, J., dissenting in part) (explaining that although the statutory provisions making the guidelines mandatory “can in certain cases, when combined with other statutory and Guidelines provisions, result in a violation of the Sixth Amendment, they are plainly constitutional on their faces“); Hughes, 401 F.3d at 553 n. 11 (noting that “a mandatory guidelines regime poses a constitutional problem only insofar as the guideline range involves extra-verdict enhancements“). Further, while Booker emphasizes the importance of the Sixth Amendment right identified in Apprendi, see Booker, 125 S.Ct. at 748-49, the application of the advisory guidelines regime that Booker adopts as a remedy does not depend on whether a defendant‘s Sixth Amendment rights have actually been violated, see id. at 769; Hughes, 401 F.3d at 553. Moreover, even if the remedy adopted in Booker were inextricably linked with the underlying Sixth Amendment defects that Booker found present in the mandatory guidelines regime, an Apprendi error itself is not structural. See United States v. Carter, 300 F.3d 415, 428 (4th Cir.2002) (per curiam); see also United States v. Perez-Ruiz, 353 F.3d 1, 17 (1st Cir.2003) (collecting cases), cert. denied, 541 U.S. 1005, 124 S.Ct. 2058, 158 L.Ed.2d 522 (2004).9
Because we have concluded that the error of sentencing a defendant under a mandatory guidelines regime is neither presumptively prejudicial nor structural, we must determine whether White can demonstrate actual prejudice. See Olano, 507 U.S. at 735, 737. To do so, White must show that the error of sentencing him under a mandatory guidelines regime “affected the outcome of the district court proceedings.” Id. at 734; accord United States v. Dominguez Benitez, 542 U.S. 74, 81-82, 124 S.Ct. 2333, 2339, 159 L.Ed.2d 157 (2004) (explaining that if an error is not structural, “relief...is tied in some way to prejudicial effect, and the standard phrased as ‘error that affects substantial rights,’ used in Rule 52, has previously been taken to mean error with a prejudicial effect on the outcome of a judicial proceeding“).
The substantial rights inquiry conducted under Rule 52(b) is the same as that conducted for harmless error under Rule 52(a), with the important difference that the burden rests on the defendant, rather than the government, to prove that the error affected substantial rights. See Olano, 507 U.S. at 734-35; United States v. Williams, 81 F.3d 1321, 1326 (4th Cir.1996) (noting that on plain error review, “the question whether a forfeited plain error was actually prejudicial is essentially the same as the question whether nonforfeited error was harmless—the difference being only in the party who has the burden on appeal to show the error‘s effect“). Our prejudice inquiry, therefore, is governed by the standard set forth by the Supreme Court in Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), i.e., whether “after pondering all that happened without stripping the erroneous action from the whole,...the judgment was...substantially swayed by the error.”10 See Williams, 81 F.3d at 1326.
We conclude that White has not met his burden of demonstrating that he suffered actual prejudice from being sentenced under a mandatory guidelines regime. Although White received a sentence at the bottom of the applicable guideline range, the record as a whole provides no nonspeculative basis for concluding that the treatment of the guidelines as mandatory “affect[ed] the district court‘s selection of the sentence imposed.” Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). The district court made no statements at sentencing indicat-
D.
In sum, the error of sentencing White under a mandatory guidelines regime does not warrant a presumption of prejudice, nor is it structural. And, White cannot demonstrate that he suffered actual prejudice from being sentenced under a mandatory regime. We therefore must conclude that this error did not affect White‘s substantial rights. See Olano, 507 U.S. at 735, 737. Because White cannot satisfy the third prong of plain-error review under Olano, we do not reach the fourth prong—whether the error “seriously affects the fairness, integrity or public reputation of judicial proceedings,” id. at 732 (internal quotation marks omitted).11
We recognize that our holding today will require defendants who argue for the first time on appeal that they were erroneously sentenced under the pre-Booker mandatory guidelines regime to demonstrate, based on the record, that the treatment of the guidelines as mandatory caused the district court to impose a longer sentence than it otherwise would have imposed. This requirement, however, does not place on defendants a burden more severe than that placed on defendants alleging other types of unpreserved errors. In some cases, statements by the district court may indicate that the treatment of the guidelines as mandatory pre-
IV.
For the reasons set forth above, we affirm White‘s convictions and sentence.
AFFIRMED
DUNCAN, Circuit Judge, concurring in part and dissenting in part:
I thank Chief Judge Wilkins for his fine opinion, and appreciate the difficulty of the issues this and other courts are grappling with in the wake of the Supreme Court‘s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). However, I am troubled by the majority‘s reliance on a distinction between the two manifestations of error dis-
Following Booker, this court has decided that one segment of the total class of defendants authorized to seek resentencing can meet the stringent requirements of showing plain error and are therefore entitled to resentencing. In United States v. Hughes, 401 F.3d 540 (4th Cir. 2005), we held that defendants whose maximum sentences as authorized by the jury were less than that imposed by the judge based on facts found pursuant to the mandatory sentencing regime demonstrate prejudice. Id. at 548-49. Hughes specifically and appropriately states that it does not purport to address the issue of whether defendants sentenced under a mandatory regime could satisfy the plain error standard, as that issue was not before the court. Id. at 551 n. 8. Significantly, however, we also noted that the record in Hughes did not provide “any indication of what sentence the district court would have imposed had it exercised its discretion under
Although the error initially presented in Booker arose under the Sixth Amendment, the remedy provided was both broader and crafted to address its condition prece-