UNITED STATES оf America, Plaintiff-Appellee, v. Gay Sanford WASHINGTON, Defendant-Appellant.
No. 03-4867.
United States Court of Appeals, Fourth Circuit.
Argued: Oct. 26, 2004. Decided: April 15, 2005.
398 F.3d 306
IV.
To summarize, we conclude that the district court properly found that the Local Defendants’ near total failure to comply with the terms of the Consent Decree was an unanticipated change of circumstance that warranted modifying the Consent Decree. Because many of the obligations of HUD and the Local Defendants under the Decree are interrelated, the district court did not abuse its discretion by concluding that the Decree should be modified to extend the period of the court‘s retention of jurisdiction over HUD. The district court‘s modification of the Decree was suitably tailored to the problems created by the change of circumstance, as required by Rufo. Accordingly, the district court‘s order modifying the Consent Decree is hereby affirmed.
AFFIRMED
ARGUED: Jonathan David Byrne, Office of the Federal Public Defender,
Before LUTTIG, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by published opinion. Judge KING wrote the opinion, in which Judge DUNCAN concurred. Judge LUTTIG wrote a dissenting opinion.
KING, Circuit Judge:
Gay Sanford Washington appeals from the sentence imposed upon him in the Southern District of West Virginia after his plea of guilty to a single offense of felonious possession of a firearm, in contravention of
I.
On April 1, 2003, Washington entered a plea of guilty to being a felon in possession of a firearm. The applicable provision of
At Washington‘s first sentencing hearing, on June 17, 2003, the Government objected to the PSR as revised. In objecting, the Government relied on
In conducting the hearing, the sentencing court posed a series of pertinent questions to counsel on the crime of violence issue, including questions as to the specifics of Washington‘s prior offense. It first inquired as to the title, function, and location of the Task Force whosе offices were burglarized. In response, the Assistant United States Attorney represented to the court:
Your Honor, I believe ... that the building that was broken into housed this particular Drug and Violent Crime Task Force. In that particular building rests a great deal of potential for violence. Not only does it house evidence, narcotics, weapons, it frequently has—I believe this particular office has surveillance equipment, security alarms. It is frequently manned at all hours of the day and night, although I don‘t believe it is routinely a 24-hour manned facility. I believe ... that an individual who breaks into such an office certainly creates this other type of potential for risk of violent injury....
(J.A. 61). The court inquired further as to the specifics of the offense, asking: “What else do you know about the circumstances of the break-in?” and “[y]ou don‘t know the hour of the break-in or the day?” (J.A. 62). The court then continued the sentencing hearing to a later date, directing the parties to brief both the issue of what material the court could cоnsider in
On June 19, 2003, the Government filed a sentencing memorandum setting forth a variety of allegations regarding Washington‘s prior conviction. The memorandum advised that the crime was committed “[i]n the early morning hours of December 11, 1995,” when the “defendant along with two accomplices broke into the office of the Midwestern Task Force by breaking a ground-level window.” It also related, inter alia, that Washington and his “two accomplices” had stolen firearms and several varieties of drugs. The Government attached the police report and criminal investigation report to its memorandum.3
The factual background of Washington‘s prior state conviction, as spelled out in the prosecution‘s sentencing memorandum, was not contained in or suggested by the indictment itself, which merely alleged in Cоunt 1 that Washington “did unlawfully and feloniously break and enter a building of the City of Hurricane ... occupied by the Midwestern Drug and Violent Crime Task Force with intent to ... steal” Task Force “goods and property.”4 Likewise, the plea materials of record in the state court proceeding provided no other details on the breaking and entering conviction.
At Washington‘s final sentencing hearing on August 29, 2003, the court applied the “crime of violence” enhancement and sentenced accordingly. In so ruling, the court looked to the provisions of
Based on common experience, it is reasonable to expect that quarters occupied by a drug and violent crime unit would
contain both drugs and guns that are protected from theft; that, even if no one affiliated with the task force was present at the time of a breaking and entering into its quarters, one or more members or employees of the task force may show up there at any time of day or night in view of the oft-times clandestine and nocturnal nature of their work; and such persons would be armed. The act of breaking and entering such a facility is a reckless, dangerous act which, by its very nature, is fraught with serious potential for confrontation and risk of substantial physical harm to another.
(J.A. 166-67). Based on this assessment, the court fixed Washington‘s base offense level at the enhanced level of 20, applied a three-level reduction for acceptance of responsibility, for a final offense level of 17, and sentenced Washington to thirty months of imprisonment.
II.
Washington has appealed his sentence, maintaining that the district court misapplied circuit precedent and the Guidelines in determining that his prior breaking and entering offense constituted a crime of violence. On appeal, he also contends that his sentence violated the Sixth Amendment, relying on Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Because Washington did not raise his Blakely claim in the district court, we review that contention for plain error only. See
III.
This appeal presents the question of the scope of the “fact of a prior conviction” exception to the Sixth Amendment protections outlined in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, including United States v. Booker, — U.S. —, 125 S.Ct. 738 (2005). More specifically, it requires that we address the question of whether the Sixth Amendment is offended when a sentencing court makes findings of fact regarding the circumstances of a defendant‘s prior conviction, and then relies on such findings to reach the conclusion that the prior conviction “otherwise involve[d] conduct that presents a sеrious potential risk of physical injury to another,”
A.
Two important recent developments in Sixth Amendment jurisprudence guide our analysis of this case. First, in Booker, the Court held that the Sixth Amendment is contravened when a sentencing court, acting pursuant to the Guidelines, imposes a sentence greater than the maximum authorized by facts, other than the fact of a prior conviction, admitted by the defendant or found by the jury alone. Booker, 125 S.Ct. at 750-51. Second, in Shepard, the Court recently instructed that Sixth Amendment protections apply to “a disput-
1.
As the Court‘s line of decisions originating with Apprendi make clear, the Sixth Amendment mandates that “any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence must be found by a jury, in the absence of any waiver of rights by the defendant.” Shepard, 125 S.Ct. at 1262 (citing Jones v. United States, 526 U.S. 227, 243 n. 6 (1999)) (emphasis added). This protection applies to the Sentencing Guidelines, which, though promulgated not by Congress itself but by the United States Sentencing Commission, had until recently the force and effect of law, and thus implicate the Sixth Amendment. Booker, 125 S.Ct. at 750. In order to determine whether a Sixth Amendment error oсcurred in Washington‘s sentencing, we look first to whether the sentencing court imposed a “sentence exceeding the maximum allowed based only on the facts found by the jury.” United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). More specifically, we must assess whether the sentencing court‘s enhancement fits within the “fact of a prior conviction” exception of Apprendi and Booker.
2.
The “fact of a prior conviction” exception specified in Apprendi originated in Almendarez-Torres v. United States, 523 U.S. 224 (1998). In that case, the Court addressed the appeal of an alien who had pleaded guilty to re-entering the United States illegally after his deportation, in contravention of
In Apprendi, the Court enunciated its holding that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. In explaining this rule, the Court in Apprendi limited its ruling in Almendarez-Torres, pointing to two factors that distinguished Almendarez-Torres‘s case: “the certainty that procedural safeguards attached to any ‘fact’ of prior conviction” and “the reality that Almendarez-Torres did not challenge the accuracy of that fact in his case.” Id. at 488. Together, these factors “mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” Id.
3.
In its recent Shepard decision, the Court addressed the application of the prior conviction exception to a disputed fact “about a prior conviction.” 125 S.Ct. at 1262 (emphasis added). Shepard, who was convicted under
In making this contention, however, the Government ran afoul of Taylor v. United States, 495 U.S. 575 (1990), where the Court had earlier determined that a “violent felony,” pursuant to
An opinion authored by Justice Souter in Shepard and joined by three other Justices (of the eight participating),7 characterized Taylor‘s statutory construction rule as of Sixth Amendment significance. The plurality opinion first explained that a burglary conviction rendered in a generic burglary state inherently identifies the offense as a “violent felony,” and the “judicial finding of a disputed prior conviction is made on the authority of Almendarez-Torres.” Shepard, 125 S.Ct. at 1262. However, when the definition of the prior crime itself does not reveal whether the conviction was for generic burglary, as Justice Souter explained, the “only certainty of a generic finding lies in jury instructions, or bench trial findings and rulings, or (in a pleaded case) in the defendant‘s own admissions or accepted findings of fact confirming the factual basis for a valid plea.” Id.
A sentencing court‘s consideration of materials beyond those documents identified by the Court, the Shepard plurality advised, “raises the concern underlying Jones and Apprendi.” Id. It deemed “debatablе” which, if any, facts contained in such additional documents were part of what the state court was “required to find” as a basis for the earlier conviction. Id. If the sentencing court were to determine which facts the state court was “required to find” as part of the judgment, the sen-
Justice Thomas‘s concurring opinion announced an even stronger view: that a sentencing court‘s reliance on items beyond the charging papers in the earlier case would give rise not merely to constitutional doubt, but to constitutional error. See Shepard, 125 S.Ct. at 1263-64 (Thomas, J., concurring in part and concurring in the judgment). A majority of the Shepard Court thus agreed that any inquiry beyond charging documents and the like, in the context of the application of
B.
Washington‘s case raises the issue of the scope and substance of the Sixth Amendment “risks” identified in Shepard. The sentencing court increased Washington‘s sentence above that authorized by his earlier guilty plea to the breaking and entering charge alone, and did so based on its determination that Washington‘s conviction was for a “crime of violence,” because it “otherwise involve[d] conduct that presents a serious potential risk of physical injury to another.”
1.
The sentencing court relied on facts outside the indictment in concluding that Washington‘s prior offense was a crime of violence. Although the court began with the conduct expressly charged—Count 1 of Washington‘s earlier indictment—the court then found additional facts about the building that was subjected to the break-in.9 These facts included what, from the court‘s common experience, the building‘s likely contents were; the identity of any occupants; and the probable level of security. These additional, hypothetical facts were specific: e.g., that “drugs and guns” would
Significantly, the additional facts found and relied upon by the sentencing court were nowhere alleged in Washington‘s state court indictment. That indictment merely identified the building as one occupied by the Midwestern Drug and Violent Crime Task Force. Importantly, it did not reveal whether the Task Force office consists of bureaucratic administrators or police officers, or the nature of property contained therein—e.g., computers and files or drugs and guns.
In these circumstances, the sentencing court relied on facts outside of the prior indictment and resolved a disputed fact “about a prior conviction,” see Shepard, 125 S.Ct. at 1262 (emphasis added)—namely, that the prior conviction was one which “otherwise involve[d] conduct that presents a serious potential risk of physical injury to another.”
2.
The question before us concerns whether the “risk” identified by the Court in Shepard was actually realized here—that is, whether the sentencing court‘s use of extra-indictment facts contravened Washington‘s Sixth Amendment rights. And, as explained below, we are constrained to conclude that it was.
There is no question that the extra-indictment facts relied on by the sentencing court, and its conclusion that Washington‘s prior offense constituted a “crime of violence,” were not necessarily determined in the earlier proceeding. Washington pleaded guilty to the breaking and entering count of the prior indictment only, and no judicial determination was made that Washington had committed larceny—much less what, if anything, was stolen from (and therefore contained in) the building. Washington‘s prior guilty plea in no way implicated the level of the building‘s security system, the nature of its employees and their activities, or whether they at times return to work at night. As a result, the foregoing aspects of the prior convic-
Furthermore, the special circumstances identified by the Court in Almendarez-Torres are not present here. See Apprendi, 530 U.S. at 488 (noting that Almendarez-Torres admitted that his prior conviction was for an “aggravated felony“). Washington contests both the additional facts relied upon by the sentencing court, and the court‘s conclusion, based on those facts, that his prior conviction was a “crime of violence” because it “otherwise involved conduct that presented a serious risk of potential physical injury to another.” Washington has not waived this issue, Shepard, 125 S.Ct. at 1262, and the “procedural safeguards” concern of the Apprendi line of decisions thus have not been satisfied. See Apprendi, 530 U.S. at 488. As a result, the sentencing court‘s reliance on extra-indictment facts in concluding that Washington‘s prior offense constituted a “crime of violence” resulted in an enhancement to Washington‘s sentence based on more than the “fact of” his prior conviction. See Shepard, 125 S.Ct. at 1262-63. A Sixth Amendment error thus occurred.
C.
In conclusion, the sentencing court‘s application of the crime of violence enhancement of
IV.
Pursuant to the foregoing, we vacate Washington‘s sentence and remand for such other and further proceedings as may be appropriate.
VACATED AND REMANDED
LUTTIG, Circuit Judge, dissenting:
Contrary to the majority‘s conclusion, it is beyond question that the district court determined that Washington‘s prior conviction was a crime of violence, based exclusively upon the facts presented in the
I.
As the majority concedes, the “fact of a prior conviction” is excepted from the Apprendi framework. Apprendi, 530 U.S. at 490 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.“). Apprendi‘s prior conviction exception derives, at least in part, from Almendarez-Torres v. United States, 523 U.S. 224 (1998), wherein the Court held that prior convictions not included in Almendarez-Torres’ indictment could properly form the basis of an increase in his sentence. Id. at 243 (“[T]he sentencing factоr at issue here—recidivism—is a traditional, if not the most traditional, basis for a sentencing court‘s increasing an offender‘s sentence.“). The Apprendi court explained that “[b]oth the certainty that procedural safeguards attached to any ‘fact’ of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that ‘fact’ in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” Apprendi, 530 U.S. at 488.
The district court‘s enhancement of Washington‘s sentence plainly fits within this exception to the rule of Apprendi. Contrary to the conclusion reached by the majority, the only facts that the district court relied upon for its determination that Washington‘s prior conviction was a crime of violence were those facts recited in the indictment underlying that conviction. The district court explained that Application Note 1 to Section 4B1.2 instructs the sentencing court to examine the “conduct set forth ... that is expressly charged ... in the count in which the defendant was convicted.” J.A. 120 (emphasis added). Consistent with the court‘s exclusive focus on the facts alleged in the indictment, the district court noted that it was unconstrained by United States v. Harrison, 58 F.3d 115 (4th Cir. 1995) because the “Court there did not have need or occasion to consider the meaning or application of the phrase, ‘conduct expressly charged.‘” J.A. at 121 (emphasis added). The district court next explained, consistent with circuit precedent holding that “in assessing whether a particular offense satisfies the ‘otherwise clause’ of [
That Gay S. Washington, Jr., ... did unlawfully and feloniously break and enter a building of the City of Hurricаne, a Municipal corporation, occupied by the Midwestern Drug and Violent Crime Task Force, with intent the goods and property of said Midwestern Drug and Violent Crime Task Force ... then and there to steal, take, and carry away. J.A. 80.
After setting forth the proper legal standard governing the application of section
By virtue of the conduct expressly charged in that indictment, the Court concludes that the breaking and entering of a government-owned building to steal the goods and property of a drug and violent crime task force is conduct that, by its nature, presents a serious potential risk of physical injury to another.
Based on common experience, it is reasonable to expect that quarters occupied by a drug and violent crime unit would contain both drugs and guns that are protected from theft; thаt, even if no one affiliated with the task force was present at the time of a breaking and entering into its quarters, one or more members or employees of the task force may show up there at any time of day or night in view of the oft-times clandestine and nocturnal nature of their work; and such persons would be armed.
The act of breaking and entering such a facility is a reckless, dangerous act which, by its very nature, is fraught with serious potential for confrontation and risk of substantial physical harm to another. J.A. 122-23 (emphasis added).
The majority concludes that the district court‘s determination is not subject to Apprendi‘s prior conviction exception because the district court used its “common experience” to find facts beyond the scope of Washington‘s indictment that “echoed the extra-indictment information presented by the government,” ante at 841-42, and because Washington “contests” the conclusion that his prior conviction “involve[d] conduct that presented a serious potential risk of physical injury to another.” Ante at 843 (emphasis added). The record actually confirms that the district court did not rely upon any extra-indictment facts. And neither the fact that the court referenced “common experience” nor the fact that Washington contests the court‘s crime of violence determination is sufficient to take the district court‘s determination outside the scope of Apprendi‘s exception.
The majority‘s suggestion that the district court, sub silentio, relied on extra-indictment information about Washington‘s crime is simply mistaken. The district court was aware of extra-indictment facts; the Government made certain representations pertaining to Washington‘s prior conviction during the June 17, 2003 hearing, J.A. 60-61, and it also submitted, as an exhibit to its sentencing memorandum, a police report describing Washington‘s prior conviction. J.A. 76-79. But the majority‘s suggestion that the district court‘s reference to its “common experience” merely masked its reliance on the Government‘s representations and the police report is nowhere supported in the record. Indeed, at the conclusion of the June 17, 2003 hearing, where the Government made representations about Washington‘s prior conviction, the district court asked the parties
Nor did the district court‘s reference to “common experience” and the conclusions drawn therefrom entail any factual findings subject to the rule of Apprendi. Rather, such merely constituted the district court‘s legal analysis of whether the indictment underlying Washington‘s prior offense described a crime that was likely to present a serious risk of physical injury to another. The district court‘s decisional process was no different than if it had determined that the carrying of a gun during the course of a drug transaction constituted a crime of violence because “common experience” informs that physical injury is a foreseeable consequence of carrying a gun during such a transaction. Surely we would not hold that the court‘s determination in such context was an impermissible judicial finding of fаct; no more so was the district court‘s determination in the present case impermissible. The district court made no findings as to the likelihood of violence in the specific context of the drug task force headquarters burglarized by Washington; it only drew the legal conclusion that violence is foreseeable when one burglarizes a building occupied by an organization such as a drug task force.
Because the district court‘s conclusion rested solely on the court‘s application of the definition in 4B1.2(a) to the facts expressly charged in the indictment, without any extra-indictment factual findings, under our circuit precedent the court‘s application of the “otherwise” portion of the definition of crime of violence to those facts resulted in a legal—as opposed to factual—conclusion subject to de novo review on appeal. See United States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002) (holding that “[t]he question” of whether a prior conviction is “an offense, which, ‘by its nature, presents a serious potential risk of physical injury to another’ ... is a question оf law that we review de novo“); United States v. Dickerson, 77 F.3d 774, 775 (4th Cir. 1996).
The majority also suggests that the “special circumstances identified by the Court in Almendarez-Torres are not present here,” ante at 843, because Washington contests the conclusion that his prior conviction was a crime of violence, whereas
Washington‘s prior conviction was an element, and thus included in the indictment, of the instant felon-in-possession offense, to which Washington pled guilty. J.A. 7; 46-49. Moreover, Washington does not dispute the accuracy of the facts contained in the indictment pertaining to his prior conviction, J.A. 110, and, as established above, it is clear that the district court did not rely on extra-indictment factual findings. Therefore, Washington only challenges the district court‘s legal conclusion, namely whether breaking and entering a drug and violent crimе task force “presents a serious risk of physical injury to another.”
This determination is not altered by the plurality‘s conclusion in Shepard v. United States, — U.S. —, 125 S.Ct. 1254 (2005). Contrary to the majority‘s suggestion, that case does not establish that Apprendi‘s prior conviction exception is per se inapplicable to disputes “about a prior conviction.” Id. at 1262. Rather, it merely establishes that such disputes must be resolved by reference to “the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Id. at 1263 (emphasis added). Here, consistent with this conclusion, the district court relied exclusively on the charging document pertaining to Washington‘s prior conviction.
Because the district court‘s application of the “otherwise” portion of section
II.
While the district court‘s imposition of a sentence enhancement did not infringe Washington‘s Sixth Amendment rights because the court did not enhance Washington‘s sentence on the basis of judicially-found facts, the district court‘s treatment of the federal sentencing guidelines as mandatory, and its imposition of Washington‘s sentence under the guidelines so understood, was error. See United States v. Booker, — U.S. —, 125 S.Ct. 738 (2005).
Because Washington did not challenge the propriety of a mandatory sentencing guidelines regime in the district court, our review is under
Proper application of Rule 52(b) depends upon an accurate understanding of the error committed which, in turn, requires an accurate understanding of Booker.
In Booker, the Supreme Court held that judicial factfinding that results in an increase in an offender‘s sentence under the “Guidelines as written“—that is, the guidelines as “mandatory and binding on all judges“—violates the Sixth Amendment. Booker, 125 S.Ct. at 750 (Stevens, J.). The Court‘s remedy for this constitutional infirmity, however, was not the abolition of judicial factfinding; rather, the Court severed entirely “the provision of the federal sentencing statute that makes the Guidelines mandatory,
Because of the constitutional violation identified in Booker and the remedy ordered by the Court, Booker errors can take two forms.
First, it is error if the sentencing court (1) within a mandatory guideline regime (2) found facts that resulted in an increase in the offender‘s sentence beyond that which would have been supported by the jury‘s findings. This error, which results in a violation of the Sixth Amendment, is the type of error that occurred in Booker‘s case. As the Court explained, the district court‘s error was that it “applied the Guidelines as written and imposed a sentence higher than the maximum authorized solely by the jury‘s verdict.” id. at 769 (Breyer, J.). Justice Breyer‘s reference to the “Guidelines as written” confirms that the district court‘s treatment of the Guidelines as mandatory was neсessarily part of the error that occurred in Booker‘s case. See Booker, 125 S.Ct. at 750 (“The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges.“) (emphasis added). See also United States v. Gilchrist, 2005 WL 599745 (4th Cir. March 8, 2005) (Luttig, J. concurring,) (concluding that United States v. Hughes, 396 F.3d 374 (4th Cir. 2005) fundamentally misidentified the foregoing Booker error “[b]y failing to recognize as error the district court‘s imposition of sentence on the assumption that the Guidelines were mandatory“).
Second, because the Court held that the remedy for impermissible judicial factfinding in violation of the Sixth Amendment was the severance of the provision that made the Guidelines mandatory (rendering them in all cases advisory), it is also error if the sentencing court merely imposed a sentence under the Guidelines “as written,” that is, as mandatory. This second type of error, which does not entail a violation of the Sixth Amendment because the district court did not find facts impermissibly, is the type of error that occurred in Washington‘s (and Fanfan‘s) case.
While it is possible for a sentencing court to have erred under Booker in either of these two respects, it must be understood that a court will not havе erred in either respect provided that it sentenced
The district court in this case committed the second type of Booker error, and this type only. It erred by applying the “Guidelines as written,” that is, as mandatory. And, even though Booker was decided after the district court imposed Washington‘s sentence, that error is nonetheless deemed to have been “plain.” See Johnson v. United States, 520 U.S. 461, 468 (1997) (finding that an error is plain “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal“).
In order to prevail under Rule 52(b), Washington bears the burden of establishing that the district court‘s error affected his substantial rights. See Olano, 507 U.S. at 734 (“It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.“). An error affects substantial rights, when “the error actually affected the outcome of the proceedings.” United States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998) (emphasis added). In the context of an error relating to the imposition of sentence, a defendant “must establish that [the imposed] sentence was longer than that to which he would otherwise be subject.” United States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en banc). While the Supreme Court has variously articulated the requirement that a different result would have been likely or probable, see United States v. Dominguez Benitez, 542 U.S. 74 (2004), it has recently suggested that an offender can establish prejudice with a “showing of a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different.” Id. at 2339 (internal quotations omitted); see also United States v. Antonakopoulos, 399 F.3d 68, 78 (1st Cir. 2005) (adopting the Dominguez Benitez “reasonable probability” standard for Booker claims).
As previously established, the district court erred when it imposed Washington‘s sentence pursuant to a mandatory sentencing guidelines regime, i.e., when it failed to treat the Guidelines as advisory. Thus, whether Washington‘s substantial rights were affected depends upon whether he can establish a reasonable probability that he would have received a lower sentence had the district court imposed that sentence pursuant to the advisory framework required by Booker.
Washington, however, has not claimed that he would have received a lower sentence under that framework and neither would the record support such a conclusion. Although the district court elected to sentence Washington at the bottom of the guideline range, it did not suggest that it was dissatisfied with this sentence. Indeed, the court noted that Washington had been “involved ... in a number of criminal matters.” J.A. 126. Thus, even assuming it were possible under a different set of facts, under these facts Washington cannot possibly establish that the error affected his substantial rights. Jones v. United States, 527 U.S. 373, 390 (1999) (“Where the effect of an alleged error is ... uncertain, a defendant cannot meet his burden of showing that the error actually affected his substantial rights.“).
Even if Washington could establish that the error here affected his substantial rights, I would not, and we should not, notice that error. The Supreme Court has admonished that we should only notice “particularly egregious errors ... that seriously affect the fairness, integrity or public reputation of judicial proceedings.”
The error here, in other words, is neither “particularly egregious” nor is it likely to undermine the “fairness, integrity or public reputation of judicial proceedings.” Therefore, consistent with Justice Breyer‘s opinion for the Court in Booker, I would decline to notice the error here. Booker, 125 S.Ct. at 769 (“Nor do we believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the ‘plain error’ test.“).
III.
Because Washington‘s sentence was imposed consistent with the requirements of the Sixth Amendment and because he is not entitled to relief under Rule 52(b), I would affirm Washington‘s sentence. I therefоre dissent.