United States v. Gonzalez-Huerta

El transport drugs to Denver car from evidence presented by government in Paso, Texas, Juarez, Mexico, Arras, and four us, the case now before gov- (2) occasions; separate presented on each occasion ernment no evidence jury to the the defendants insisted that the driver from which it reasonably could logical- and pressure regularly; ly check the oil and tire infer that the amount of drugs Defen- (3) $2,000 paid agreed the driver was for dant trip to distribute totaled five or $4,000 grams from Texas and more trips from of crack cocaine. (4) Mexico; during the driver was arrested Accordingly, we hold that govern- fourth trip, resulting discovery ment failed to submit sufficient evidence to thirty-nine kilograms marijuana hid- support jury’s finding that the amount den metal canisters inside the car’s of crack cocaine agreed Defendant tires; government presented a knowingly and intentionally distribute

witness who testified that the going rate amounted to grams. five or more transporting marijuana was $50 REVERSED and REMANDED with pound. Id. at categorizing 1073-74. After instructions to vacate the conspiracy con- case,” this as “close we held that suffi- viction. presented cient was evidence and affirmed the convictions. Id. at 1074. We reasoned jury logically could have pro-

babilistically arrived the conclusion that quantity marijuana attributable to

defendants than kilograms was more

based on preoccupation [defendant’s] keeping up the tire pressure and America, UNITED STATES driver], his constant reminders to [the Plaintiff-Appellee, the fact that paid was [the driver]

promised the trip same amount for each involved, commensurate with the risk Sergio GONZALEZ-HUERTA; a/k/a and the fact the going rate for Sergio Covarrublias; Gonzalez- a/k/a marijuana smuggling across the border Covarrublias, Defendant-Appellant. roughly equal payments.... to her No. 04-2045.

Id. at 1076. Arras, In light Appeals, United States Court of which was a close case, the Tenth Circuit. clearly facts this case do not support finding beyond a reasonable April doubt that agreed Defendant to distribute grams five or more of crack cocaine. Al-

though we address the same issue as was Arras,

presented in supports the evidence opposite legal conclusion. The two begin vein;

cases a similar

direct presented jury evidence to re-

garding the quantity drugs single was a

occurrence that involved than drugs fewer

the amount for which the defendants were However,

ultimately convicted. unlike the Lambros,

Demetra United States De- Justice, partment Division, Criminal (David Washington, Iglesias, D.C. C. Unit- Cairns, Attorney, ed States Norman Assis- Attorney, tant Albuquerque, NM, briefs), with her on the for Plaintiff- Appellee.

Jenine M. Jensen Assistant Federal Defender, Mоore, (Raymond Public P. Defender, Denver, CO, Federal Public briefs), appearing with her on the for De- fendant-Appellant. Mueller, Haddon,

Norman R. Morgan & Foreman, P.C., Timothy Hurley, M. Uni- Law, versity College of Denver Sturm Jeremy Unthank, Karpatkin and Andrew Appellate University Federal Clinic at Law, Denver, College Denver Sturm CO; filed an amicus curiae brief for the Mr. Defense The Government indicted Gonzalez- Association of Criminal National unlawfully reentering Huerta for Lawyers. Unit- after deportation following ed States TACHA, Judge, aggravated felony. See U.S.C. Chief Circuit Before 1326(a)-(b)(2). EBEL, KELLY, HENRY, statute, SEYMOUR, § By offense MURPHY, LUCERO, BRISCOE, by a punishable maximum O’BRIEN, McCONNELL, HARTZ, years, with no minimum sen- TYMKOVICH, Judges. 1326(b)(2). § Circuit Mr. tence. 8 U.S.C. Gonza- pleaded guilty entering

lez-Huerta without TACHA, Judge. Chief Circuit plea agreement. into a Defendant-Appellant Sergio Gonzalez- findings of its re- exception With reentry by illegal pleaded guilty Huerta prior Mr. garding GonzalezAHuerta’s con- in alien of 8 U.S.C. deported violation victions, the District calculated Court Mr. 1326(a)-(b)(2). § The Court sen- District sentencing range Gonzalez-Huerta’s under months’ to 57 tenced Mr. Gonzalez-Huerta making without findings the Guidelines Mr. determining In Gonza- incarceration. beyond those Mr. fact admitted Gonza- sentence, court did not lez-Huerta’s In so District doing, lez-Huerta. facts, it did judge-found but rely upon concluded Mr. Gonzalez-Huerta had Sentencing mandatorily apply the U.S. history offense level 21 and a criminal (“Guidelines”). Mr. Gon- Guidelines category mandatorily The then IV. appeal on argues for the first time zalez Guidelines, Mr. applied the which set Gon- mandatory of the application zalez-Huerta’s un- constitutes Guidelines reversible imprisonment, imposed months’ a 57- — Booker, der States v. United month sentence. Mr. Gonzalez- While -, L.Ed.2d 621 S.Ct. object did not to the mandatory Huerta (2005). Mr. did Because Gonzalez-Huerta application sentencing, Guidelines District argument not raise this timely appeal he did his sentence. Court, only for appeal reviewed this case on pending appeal, While was 52(b). We error. See Fed.R.Crim.P. opinion its Court issued § 1291 jurisdiction 28 U.S.C. take — U.S. -, Blakely Washington, 3742(a)(1), § that the hold and 18 U.S.C. (2004), S.Ct. 159 L.Ed.2d 403 plain-error review is not fourth prosecution which held in a state satisfied, and AFFIRM. requires Sixth Amendment maxi permissible given mum sentence in a case I. BACKGROUND solely by must be determined reference to jury “facts reflected in the verdict or ad con- In Mr. Gonzalez-Huerta was say, mitted That is to defendant.” committing burglary victed of Califor- mandatory sentencing the Court held that term, serving nia. After he was prison guidelines, require which May to Mexico 2000. In deported fact, may to make judge findings of not be in New Mr. arrested Gonzalez-Huerta was used to increase a defendant’s sentence in possession Mexico for a controlled sub- though this prosecution a state even en stance. Mr. While statutory hanced sentence within the jail, in a New falls being held Mexico range. January year, of this Agents States Border Patrol discovered applies country illegally. Blakely held that that he had reentered the the Court Booker, mandatory application sentences as well. held that federal 749-50. Guidelines violates Sixth Amendment facts, when judge-found other than those appeal, argues On Mr. Gonzalez-Huerta convictions, of prior are en- employed to grounds first time that Booker is for the hance a sentence. The Court constructed remanding resentencing. his case for unique remedy in- this constitutional this case for en banc review sua We set firmity. provisions It severed two great im- sponte resolve this matter of Sentencing Reform Act of codified at 46(c). § See We re- portance. 28 U.S.C. § 3551 et seq. Namely, U.S.C. it ex- supplemental from the quested briefing 3553(b)(1), § cised 18 U.S.C. which made on an parties expedited basis and received of a imposition Guidelines sentence an amicus curiae brief from the National cases, mandatory in the vast majority Lawyers. of Criminal Association Defense 3742(e) portions and those § 18 U.S.C. being fully we turn question argued, that established standards of review single ap- to the issue in this appeal. 125 S.Ct. at 764. Hence- review, peal: plain-error On the Dis- does forth, required courts are still to consider application trict Court’s sentences, the Guidelines determining constitute reversible they required but are not impose solely upon District when the Court relied sentence range. within Guidelines Id. prior Mr. Gonzalez-Huerta’s convictions determining his max- and admitted facts result, As a there are two types distinct 1 imum sentence? of a error that court to prior First, Booker could make. a court could II. DISCUSSION by relying upon judge-found facts, err oth- A. prior convictions, er than of en- those to Booker, In mandatorily. the Court hance a defendant’s sentence “reaffirm[ed (other clear, holding Apprendi: Any fact As makes its] Booker the Sixth Amend- conviction) prior necessary practicе. prohibits than a which is ment 125 S.Ct. convenience, a the maxi support exceeding sentence 756. As a matter of will we by mum authorized the facts established refer to such an error as a “constitutional guilty Second, of by plea jury a or a must Booker error.” a sentencing verdict by proved by applying be admitted the defendant or could err in a fashion, beyond jury mandatory opposed a a reasonable Book as doubt.” a discre- er, fashion, result, tionary resulting S.Ct. at 756. a though As Court even by plea guilty jury a 1. Mr. Gonzalez-Huerta raises a second issue established or a verdict solely purpose preserving by proved it for a must be admitted defendant or doubt.”). Blakely petition argues jury beyond for certiorari. a We He reasonable ruling any question into calls the Court’s Al- believe that reconsideration of Almenda States, by v. United 523 U.S. be conducted must mendarez-Torres rez-Torres 1219, (1998), Khan, 3, 118 S.Ct. 140 L.Ed.2d 350 Oil Co. v. Court. See State (1997) prior which held that the fact conviction 118 S.Ct. 139 L.Ed.2d 199 First, ("[I]t may judicially recognized. Supreme] prerogative note is Court's [the below, argument precedents.”); that this was not lim- alone to one of its raised overrule cf. - event, States, -, iting review Shepard our error. v. United U.S. Booker, 1254, 1263-64, (2005) holding 161 L.Ed.2d envisions S.Ct. Almendarez- (Thomas, J., good concurring) (noting Torres law. 125 S.Ct. Su (other conviction) ("Any prior preme fact than a has not reconsidered Court Almenda- necessary support announcing applied ex- which since the rule rez-Torres Booker). ceeding Blakely the maximum authorized the facts materiality Amendment is Sixth solely upon facts issue calculated sentence was violation, first time on defendant, was raised for the by the that were admitted re- subject plain-error and thus appeal the fact upon based jury, found view). at 769. While Id. conviction. prior of a not violate does of sentence type then, turn, application to our We id., Amendment, a sentence is such Sixth “Plain error occurs review. plain-error because the impermissible nonetheless (1) (2) error, plain, that is there when of the Sentenc- portion Court severed rights, and affects substantial which the manda- required Act

ing Reform fairness, (4) seriously affects the which Guidelines, id. at tory application public reputation integrity, type of this second refer to will 764. We Burbage, proceedings.” United States Booker er- a “non-constitutional error as (10th Cir.) (quotation ror.” — denied, U.S. -, omitted), cert. (2004). L.Ed.2d 381 Clear S.Ct. B. prongs plain-error ly, the first two with a non-consti- presents us This case First, the Booker met here. test are estab- The record Booker error.2 tutional 3553(b)(1), § excised 18 U.S.C. fact of Mr. that, except for the lishes the Guidelines discre thereby rendering convictions, the prior Gonzalez-Huerta’s Booker, 125 at 764. The tionary. ad- solely upon facts relied District Court application District Court’s in calcu- by Mr. Gonzalez-Huerta mitted then, Guidelines, As to was erroneous. also It is maximum sentence. lating his if it is prong, “plain” an error is the second did undisputed that Mr. appeal, time of the clear or obvious at the Booker non-constitutional not raise this Johnson, 520 Thus, review Mr. Gonza- error below. here both and Booker renders the error error. See plain claim for lez-Huerta’s Thus, appeal. clear and obvious on 52(b); at 125 S.Ct. Fed.R.Crim.P. in this case is whether Mr. primary issue every appeal that not (stating in dicta 769 the third satisfy can both Gonzalez-Huerta resentencing “be- for should be remanded review. prongs plain-error and fourth to ... reviewing courts expect cause we ... the issue was whether determin[e] C. it fails and whether raised below prong the third test.”); Satisfying v. United Johnson ‘plain error’ 466-67, the error affects 461, plain-error 117 review-—that States, S.Ct. 520 U.S. (1997) means that rights “usually (holding that substantial 1544, 718 137 L.Ed.2d — have affected the outcome the error must upon United argument based defendant’s Gaudin, 506, proceedings.” court United 115 S.Ct. of the district 515 U.S. v. States 632, Cotton, 625, 122 (1995), v. 535 U.S. 2310, which held States L.Ed.2d 444 132 (2002) 1781, (quota- 152 L.Ed.2d 860 jury on the S.Ct. to instruct the failure statutory liberty footnote, legislature inter- briefly can create Mr. Gonzalez-Huerta 2. In sentencing procedures. Mr. Gonzalez- Guide ests in use of the asserts that the however, any pro- argue, Huerta fails to Clause of the the Due Process lines violates Amendment, Sentencing Reform Act creates jury vision in the than the trial rather Fifth liberty Mr. statutory interest. Because In such a Sixth Amendment. guarantee under the provide essen- fails to this v. Gonzalez-Huerta argument, he cites Hicks support of this claim, 2227, 343, process we find Oklahoma, predicate for a due 65 tial 100 S.Ct. 447 U.S. argument unpersuasive. (1980), this to demonstrate L.Ed.2d 175

733 omitted); also States v. Mr. Na- see United Amicus tions Olano, 1770, 507 113 U.S. S.Ct. tional Association of.. Criminal Defense (1993). appellant L.Ed.2d 508 123 Lawyers counter that Mr. Gonzalez-Huer- showing.3 the burden to make this bears ta does not bear burden to show 55, 62-63, Vonn, v. States 535 U.S. United rights his They were affected. (2002); 1043, 152 L.Ed.2d 90 122 S.Ct. contend that this conclusion be- follows Olano, 734-35, 507 U.S. 113 S.Ct. ap- cause the District Court’s mandatory also the occurs This is case when the error plication of the Guidelines constitutes v. sentencing. See during Jones disagree. structural error. We States, 373, 394-95, 527 119 S.Ct. U.S. Olano, (1999). satisfy Court held that to 2090, 144 As L.Ed.2d 370 this Brown, plain error, held United States v. 316 the third “in most (10th 1151, Cir.2003), 1158 a “defen- cases ... error must have preju been appealing her failed to dant sentence who dicial: It must affected the outcome object alleged to the bears the timely error the district proceedings.” proving prejudice burden 734, Court, U.S. S.Ct. 1770. The Indeed, analysis.” even when the error . however, out an exception carved underlying error is constitutional —as It stated that general may rule. “there case appellant not the retains here — [i.e., .special category of forfeited errors burden demonstrate that substantial structural errors] can be corrected Cotton, are affected. regardless their effect on the outcome.” 1781; 632, United States Cha- 735, Id. at 113 S.Ct. 1770. A “structural” Cir.2000). vez, To error, explained Arizona v. Fulmi burden, must appellant ‍​‌​‌​​‌​‌‌​​​‌‌​‌​‌​​​​​‌‌‌‌‌​​​‌​​​‌‌​​‌​​​​​‌​‍meet show nante, U.S. S.Ct. that, probability “a reasonable but (1991), 113 L.Ed.2d 302 is a “defect affect claimed, proceeding the result of the ing within the framework which the trial have been States different.” United proceeds, rather than simply Benitez, Dominguez process the trial itself.” Structural errors 159 L.Ed.2d deprive protections” defendants “basic (alterations omitted). Mr. quotation “a without which criminal trial reli cannot Gonzalez-Huerta therefore bears bur ably function serve its as a vehicle Court, den to convince this based on the innocence, guilt no determination and appeal, on that affected record the error punishment may regarded criminal be as 2340; rights. his substantial See id. fundamentally Clark, fair.” Rose v. 478 Vonn, 59, 1043; 535 U.S. at 122 S.Ct. 577-78, 570, 3101, 92 U.S. 106 S.Ct. 1291, Rodriguez, States v. F.3d United 398 (1986) (internal (11th Cir.2005), L.Ed.2d 460 citation omit petition 1305-06 cert. (U.S. 2005) (No. 04-1148).4 ted). 23, Feb. has er- filed, found structural Court (2d Crosby, it Cir. 3. Because fails to discuss this crucial issue ed States v. 397 F.3d 103 Paladino, 2005), of who bears the that burden establish States v. and United 401 F.3d affected, rights find Cir.2005), substantial were we Unit- (7th provide 471 which for limited 646, Ameline, (9th v. ed 400 F.3d 654 States determine remands to whether the district Cir.2005), reh'g granted vacated and en banc sentence, issue a lower court would inconsis (2005), unpersuasive. 1007 401 F.3d plain Rodriguez, error doctrine. See tent with Crosby (critiquing 1304-06 398 F.3d at the plain 4. Because error must be based assessed approaсh). appeal, ap- upon the record on the find plain proach adopted to Booker in Unit- 734 of cases.5 Booker very limited class case non-constitutional error. only in a

rors If, example, “the universe of court noted that the district indicates We have also extremely mandatory small.” for the nature of errors that but [structural] 1457, Garcia, F.3d v. 78 a United States Guidelines would have issued lower (10th Cir.1996). Indeed, sentence, n. 10 could reviewing 1464 deter has the de- “[i]f Court held that that the error mine from record was by an Shelton, counsel was tried fendant had prejudicial.6 See United States v. strong (11th a adjudicator, 1325, there is impartial 1328, 400 F.3d 1332-33 Cir. 2005) that constitutional presumption other (holding that defendant had sat may are [not that have occurred errors third prong isfied the where district v. errors.]” Neder United structural that court stated the Guidelines sentence 1827, States, 1, 8, 144 527 U.S. 119 S.Ct. “very, very and indicated was severe” (1999). 35 L.Ed.2d other statements “unfortunate.”). considerations, we Given these Hence, we hold that non-constitutional er that non-constitutional Booker conclude Booker error is not structural error. Ac error. ror does constitute structural Antonakopoulos, cord United States v. 399 First, implies, speaking Neder generally as (1st Cir.2005). 11 80 n. minimum, must, structural errors at a Second, Alternatively, errors. id. be Mr. Gonzalez-Huerta ar constitutional See counsel he gues cause Mr. Gonzalez-Huerta had does not bear burden judge strong under the third impartial and an there is be against finding structural er cause the Olano noted that some presumption Third, “presumed prej of struc unraised errors should be defining ror. Id. feature resulting is that the unfairness udicial cannot make a tural error defendant showing of 507 prejudice “necessarily unquantifiable specific prejudice.” U.S. at Louisiana, indeterminate,” urges 1770. Sullivan v. S.Ct. He when 275, 282, 2078, 124 on pending appeal case is and an interven 508 U.S. (1993), “any inquiry ing that was L.Ed.2d 182 such that decision overturns law well- into its effect on the of the case settled while case was the district .outcome court, purely speculative,” appellee would be Satterwhite should bear the burden Texas, v. U.S. to establish were (1988). if, say, That is to not affected. See v. 100 L.Ed.2d United States Bar nett, matter, Cir.2005); categorical capable a court is 398 F.3d (2d Viola, prejudice v. finding error caused record, Cir.1994), reviewing abrogated grounds by that class other upon then States, is the errors is structural. Such Salinas 65- Louisiana, (total right deprivation See Sullivan 2078, (1993) (errone Ohio, 510, counsel); Tumey S.Ct. 124 L.Ed.2d 182 v. 273 U.S. 47 jury); 437, to (1927) (lack ous reasonable-doubt instruction 71 L.Ed. 749 of an S.Ct. 254, Hillery, Vasquez S.Ct. v. 474 U.S. 106 judge). impartial trial 617, (1986) (unlawful 88 L.Ed.2d 598 exclu race); grand jurors sion of of defendant’s only way say 6. This is not this is the 39, Georgia, S.Ct. Waller v. 2210, 104 prong third can be See United satisfied. (1984) (right public 31 81 L.Ed.2d 68, (1st Antonakopoulos, v. 399 F.3d 81 States 168, trial); Wiggins, 465 U.S. 104 McKaskle v. MacKinnon, Cir.2005); v. United States 401 944, (1984) (right S.Ct. 79 L.Ed.2d 122 8, (1st Cir.2005). 11 F.3d trial); self-representation at Wain Gideon v. 335, wright, U.S. 9 L.Ed.2d 372

735 (1997); 469, 139 one satisfying L.Ed.2d 352 illustrates means of S.Ct. F.3d Washington, If the prong. judge third ex (D.C.Cir.1994).7 Following this pressed unhappiness on the record with reasoning, the mandatory same line of Sixth Circuit nature of the Guidelines as preju- a presumption Barnett held that of it particular relates the sentence in that for appropriate case, dice is non-constitutional satisfy then the defendant can nature Booker error because “the inherent Shelton, plain prong third error. exceptionally diffi- the error Moreover, [makes] F.3d 1328. “[e]ven cult for the defendant demonstrate silent, judge cases where there the outcome of the lower court would may appellate panel be cases which the been different had the error not occurred.” is convinced the defendant based on the 398 F.3d at Mr. Gonzalez-Huerta 526-27. would, facts of the case that the sentence adopt argues that should probability, with reasonable have been dif approach taken in Barnett. ferent that” prong may such the third be Antonakopoulos, 399 F.3d satisfied. at 81 for persuasive

We do not find Barnett scenarios third (outlining prong where the First, years several in the reasons. twelve met); plain likely be see Olano, has since its decision the Court MacKinnon, also United States v. again category never mentioned this (1st Cir.2005) 8, 11 (judge’s comments presumed alone it to prejudice applied —let plus grounds departure numerous John- analogous factual scenario. could not be considered under son, example, Court faced remand). guidelines required We are con question a defendant whether bore fident, then, that burden leaving the plain satisfy prong burden to the third appellant does not render satisfaction raised, for error when he the first time prong impossible. the third appeal, an inter- argument based on the vening Supreme Court decision of United Third, prior an appellant, to Book- even Gaudin, States v. U.S. er, every to present mitigating had reason (1995), 132 L.Ed.2d which ovеr- sentencing factors to the district court. turned that was at the law well-settled Barnett, (Boggs, See 398 F.3d at 537-38 proceedings. time of the district court 520 C.J., dissenting). present The Guidelines 469-70, Court, 117 S.Ct. 1544. The court with a in which to however, failed to make mention of Thus, the prosecutor sentence. both presumed deci- prejudice reaching its counsel, even the mandato- defense similarly question sion. We applicabil- scheme, opportunity ry Guidelines had the ity presumed prejudice to Mr. Gonza- present mitigating circumstances to the lez-Huerta’s case. a criminal might place district court Second, high at the low end of establishing defendant that non-constitu- such, arguments range. “[a]ny tional As Booker error affects substantial impossible might post culpa- The raised about is not an task. -Booker opinion offsetting bility, dangerousness, Eleventh Circuit’s recent Shelton future note, Circuit, rehearing, Worthy although panel on a held the Second and motion for satisfy District inter- defendant could the third of Columbia Circuits have an "intervening vening change precedent, doctrine as neither and that an in law decision precedent object.” applied for failure to [is] Booker no excuse Smith, opted error cases. Second Circuit has States Johnson, (D.C.Cir.2005) approach. Crosby, (citing 520 U.S. at for the limited remand 464, 1544). 397 at S.Ct. F.3d 120. District of Columbia 117 736 works, ed, family obligations, any seriously or oth- the error did not affect

good fairness, public integrity, reputation fair mitigating circumstance were also er Johnson, judicial proceedings.”); at pre-Booker.” Id. 538. As Chief game 469-70, (same); 1544 concluded, at United “the Guide- Judge Boggs aptly Edeza, 1246, v. F.3d ability States Gonzalez 359 on the placed lines never limits (10th Cir.2004) (applying 1251 Cotton these fac- of the district court consider Johnson). Mr. Gonzalez-Huerta does tors, reason so so there is no to remand satisfy prong. may additional the district court consider Hence, any failure to circumstances.” Id. matter, As a note preliminary prior include such the record evidence the wake of Booker several courts fairly appellant. to Booker rests with the appeals collapsed the third and if Finally, prong analyses. say, That placing appel the burden on the fourth satisfied, courts third prong these find the lant is one of the essential characteristics they conclude the fourth is met prong harmless distinguishing plain error from See, Vоnn, 62-63, e.g., as a matter course. 122 United error. See 535 U.S. at (2d 1043; Crosby, F.3d Olano, 734-35, States 397 118 507 U.S. at 113 S.Ct. Cir.2005) (“[A] judge’s decision district Shifting 1770. to the S.Ct. burden original have dif sentence would seriously appellee blur this distinc in a fered nontrivial manner from tion and would be inconsistent with our imposed will error in demonstrate that the precedent. States v. Labasti Cf. imposing original harm (10th sentence was da-Segura, 1143 Cir. 396 plain analysis.”). ful and error 2005) (on satisfies review, harmless-error remand approach. cannot We subscribe ing non-constitutional Booker error case clearly The Court in that “a Olano held record). Therefore, in the face a silent affecting rights error substantial adopt we do not the Barnett burden-shift not, more, ... satisfy does without ing approach and hold Mr. Gonzalez- standard, for af otherwise discretion by a Huerta bears the burden to establish 52(b) by illusory.” forded Rule would be the rec probability upon reasonable based at There U.S. 113 S.Ct. 1770. appeal rights ord on that his substantial fore, we are to treat the third and bound man were affected the District Court’s prongs independent inquiries. fourth datory application of the Ac Guidelines. Mares, cord United 402 F.3d States prong plain- Under the fourth (5th 520-22, 2005 WL 503715 at *8-*9 review, may a court exercise its dis Cir.2005); at Antonakopoulos, 399 F.3d cretion notice a forfeited error 79-80; Rodriguez, 398 F.3d at 1299-1301. seriously fairness, integrity, affects the public reputation proceedings. D. Johnson, U.S. such, need Mr. We not determine whether As we will not notice non-constitu error, can case satisfy this burden tional such as the one in the us, because even if he were meet the third it is both “particularly before unless prong, he fourth satisfy egregious” must also and our failure to notice the Cotton, prong to relief. in a “miscarriage obtain See error would result (“[W]e 632-33, justice.” need v. Gilkey, U.S. S.Ct. 1781 Olano, Cir.1997); plain- not resolve ... third [the see also review], assuming (holding because even re- S.Ct. 1770 spondents’ were affect- Rule “discretion conferred 52(b) Rather, [only] in of employed should be those error. Id. it concluded miscarriage appeal simply provided of record on circumstances which (internal result”) “no justice basis” for the notion that would otherwise the error omitted). seriously fairness, integrity, This is a affected the quotations demanding or standard, Benitez, reputation Dominguez public judicial of proceedings, see course, justice that a miscarriage of would not depends S.Ct. at and of result from its affirm. decision to Id. particular the facts of the case. similarly This Court applied has Mr. Gonzalez-Huerta bears the prong fourth of plain-error review in cases burden meeting demanding of stan Supreme where an intervening Court deci- Vonn, dard. S.Ct. 1043 U.S. sion alters law. well-settled We consid- (“[A] defendant further burden has the immediately ered this issue after the Su- persuade the error the court that ‘serious preme Apprendi Court’s decision fairness, ly integrity pub or affect[ed] New Jersey, 530 judicial lic reputation proceedings.’”). of (2000),which, 147 L.Ed.2d 435 like provides While some find that Olmo drastically changed sentencing pro- federal “presumed prejudice” foundation for the Nonetheless, cedure. applied we the tra- approach prong plain-error to the third ditional rigorous approach the fourth adopted by review as the Sixth Circuit in prong plain-error review appeals Barnett, Court has never Supreme pending when the issued Court that deci- appellee shifted the burden to the to estab sion. See v. Keeling, seriously lish that the error did affect (10th Cir.2000). F.3d We use fairness, public reputation integrity, approach the same today. judicial contrary, To the proceedings. Mr. consistently ap Court has fails to meet his plied plain-error prong satisfy prong the fourth re of plain- burden fourth rigorously-even view on appeal, when the is the review. his brief he intervening Supreme result of an offers nothing conclusory Court more than the decision that standing alters well-settled law. For statement that: leave “[T]o example, imposed Court considered the mandatory Johnson application prong guideline doubt, fourth no regime, we have is to fairness, plain-error place jeopardy integrity, review in the wake of its Gau decision, reputation din which public proceedings.” overturned established present Aplt. law regarding Supp. (quoting the need materi Brief at 12 United 469-70, ality jury. Hughes, to the 520 U.S. at 117 States v. Cir.2005)). major Despite change quotation

S.Ct. 1544. Providing this is a Gaudin, cry establishing criminal law made from that a far miscar- exception riage justice declined to carve out to the would occur we do not contrary, burden framework to the fourth prong upon as remand.8 To the based our Moreover, Hughes, 8. The Fourth Circuit in 396 F.3d at we note that the Fourth Circuit 380-81, approach panel granted rehearing took a different to the and issued a new prong. opinion previously Hughes. fourth It held the fourth See States v. (4th Cir.2005). prong Hughes, wrought satisfied because "Booker 401 F.3d 540 major change upon a in how federal is to Fourth Circuit now relies different fourth-prong be conducted.” The court now Id. at Because do rationale. holds change "Hughes not find that this in well-established ‍​‌​‌​​‌​‌‌​​​‌‌​‌​‌​​​​​‌‌‌‌‌​​​‌​​​‌‌​​‌​​​​​‌​‍the fourth met because burden, fourth-prong imprisonment nearly law mandates a sentenced to a lesser term of reasoning persuasive. long we do not find this four times as maximum sentence 738 Moreover, record, of the purpose are convinced of the

review promote uniformity in sentencing was so mandatory application District Court’s prevent vastly divergent as to sentences “particularly of the Guidelines was for offenders with similar criminal histo justice.” “miscarriage egregious” ries and offenses. See Koon United our con- support considerations Several States, 116 S.Ct. The error which Mr. Gonzalez- clusion. (1996). L.Ed.2d 392 The federal courts complains is not the substantive Huerta worthy this striving have been towards recognized Blakely and which Indeed, error first goal goal since 1987. remains Booker, namely, post sought to the same -Booker. Booker eliminate — (“This point critically important. at 761 is Amendment is when a the Sixth violated passing basic Congress’ goal the Sen a jury, rather than finds facts that judge, tencing Act was to move the sen- mandatorily increase a defendant’s system the of increased unifor direction Rather, the error in Mr. Gonzalez- tence. so, mity.”). doing the courts and the ap- case—that the District Court Huerta’s Sentencing Commission mandatorily plied the Guidelines —is have established national norms for sen it runs insofar as afoul of the Court’s are tencing that in the embodied Guide implica- for the remedy unconstitutional States, lines. See Mistretta v. United This disconnect tions Guidelines. 361, 369-70, 109 S.Ct. between constitutional violation and (1989). though L.Ed.2d Even district remedy unique. makes Booker While in sentencing, courts now discretion remedy no doubt that the cures there is (i.e., they must consider the Guidelines forward, going violations the constitutional norm) sentencing. national when cure for a viola- usually the constitutional (“The Act nonetheless directly relates constitutional tion to the judges requires to consider the Guidelines fortuity The of the Court’s violation. ‘sentencing range for established ... 3553(b)(1), § to excise 18 choice U.S.C. applicable category of offense committed remedy directly of a more related instead applicable category of defen underlying problem, constitutional ”). Here, dant.’ Mr. Gonzalez-Huerta re key our that the District determination ceived sentence that is within nation not constitu- although Court’s norm and any al the record is devoid of erroneous — tionally mandatory application mitigating evidence.9 Given his sen erroneous — egre- particularly the Guidelines tence is consistent with this national norm gious miscarriage no justice. support or a and there is record evidence to defendant, jury Judge.” Id. behalf of authorized verdict.” at *555. on

We face similar do not facts here. then court stated its intention sentence Mr. Gonzalez-Huerta to 57 to 71 months' incar- Indeed, specifically District asked asked, you agreement ceration and "Are Gonzalez-Huerta, "Are all of the state- Mr. "Yes, replied, with that?” Defense counsel your report [presentence] fact in ments of your again, honor.” Yet the court de- asked replied, Mr. correct?” counsel, you fense "would like make inquired, "Yes.” The court there "[I]s then on statement behalf of Mr. Gonzalez at this any evidentiary hearing disput- need for Judge time?” Defense thanked the counsel Defense there ed facts?” counsel stated was the low end of the asked, again not. The "Are there that he Mr. stated had informed Gonzalez- presentence materials written other than the good-time eligible he Huerta that report that I should take into account?” Mr. credits. lawyer replied, "Nothing Gonzalez-Huerta's sentence, ploys a lower we cannot conclude that an improper proof, burden of particu- Jordan, Mr. Gonzalez-Huerta’s sentence is States v.

larly egregious justice. or a miscarriage Cir.2001), and when the sentencing court denies the defendant right his to allocu-

Further, eighteen years, for the last ev- tion, Adams, United States v. 252 F.3d ery given federal court has the Guidelines (3rd Cir.2001).11 276, Here, 288-89 we tacit, are explicit, approval, and most cases similar faced with a scenario where applying them to tens of thousands of fed- justice basic notions of are regard, agree jeopardized. eral sentences. we Hence, hold, with the First Circuit that “one cannot we cannot upon based say that all possibly imposed factors, sentenсes culmination of these that the man- fairness, before Booker threatened the in- datory application of the Guidelines in this tegrity, public reputation pro- case—while particularly error —is a egre- ceedings, or undermined our confidence in gious one that would result in a miscar- sentence, simply the outcome of the be- justice riage of judi- otherwise call the cause mandatory.” the Guidelines were ciary disrepute into unless we remanded. 80; Antonakopoulos, 399 F.3d at Unit- cf. Wilson, 1208, ed States v. 244 F.3d 1220 n. III. CONCLUSION (10th Cir.2001) (applying the fourth Because Mr. Gonzalez-Huerta’s chal- prong plain-error declining of the test and lenge to this non-constitutional Booker er- error, in part, correct because the ror was raised for the first time on appeal procedures universally involved “were con- he satisfy cannot the fourth prong of trial”). sidered fair at the time of review, plain-error we AFFIRM. Indeed, courts have held that sentencing prong plain-error error meets the fourth TACHA, Judge, Chief Circuit only in review those rare cases in which concurring. justice core notions of are offended. For fully I majority concur in the opinion. I example, the courts generally have held write separately I because would also find prong the fourth met when the sentence that maximum,10 Mr. Gonzalez-Huerta statutory satisfy exceeds the cannot United Maxwell, (4th 336, States v. the third prong plain-error 285 F.3d review. Cir.2002), when the court em- am say Judge authorized to Kelly, 10. imposi Although At times we have referred previously to the "[w]e have held ... beyond statutory tion of a sentence maxi application wrong of the “illegal mum as an sentence.” The use of error,” plain constitutes United States v. however, terminology, has led to some 791, (10th Occhipinti, 998 F.2d 801-02 Cir. Thus, recently confusion. clarified that 1993), application we later clarified that "illegal the term sentence” is reserved wrong guideline only "constitutes a fun those instances where the term of incarcera affecting damental error maximum, statutory tion exceeds the while a 52(b), meaning thereby within the Rule wrongly imposed sentence that is under the satisfying prong plain the third statutory properly maximum is termed an inquiry,” leaving appellant with bur "erroneous sentence.” United States v. remaining prongs den to establish the Brown, (10th 316 F.3d 1160 n. 4 Cir. review, Whitney, United States v. 2003). Because Mr. Gonzalez-Huerta's sen (10th Cir.2000). Thus, F.3d 1308-09 maximum, statutory tence is under the hе did applied even if we held that the District Court "illegal not receive an sentence” that would case, wrong guideline range in this such a se, reversible, trigger per plain error. Cf. finding necessarily satisfy would not Smith, United States v. plain-error fourth review. (10th 1998). Cir. - O’Brien, Judge Judge had Mr.

Judge Murphy, informed he McConnell, good-time Judge Tymkovich join eligible this was credits. This best, record, specu- leaves me concurring opinion. lation that the District Court would have the burden Having concluded issued a lower sentence if it had sentenced Gonzalez-Huerta, I squarely rests Mr. regime. non-mandatory Guideline next he turn to whether satisfies States, in United Jones v. third-prong. Unlike States (1st F.3d 68 Cir. U.S. 144 L.Ed.2d 370 Antonakopoulos, 399 Shelton, (1999), case, 2005), was a capital or United States which instructs Cir.2005), speculation possible such about lighter satisfy point does sentence cannot the third Mr. Gonzalez-Huerta a error. held anything in the record shows with The Court his probability alleged substantial when “the effect an so reasonable uncertain, mandatory ap a defendant cannot meet rights were affected his showing plication actually most he burden of that the error Guidelines. Jones, speculation lights.” can offer is that with its new- affected his substantial 394-95, 2090; 527 might found discretion the District Court U.S. see my view, Rodriguez, a lower In this also 398 impose sentence. United States (11th Cir.2005) showing. (applying is an insufficient Jones to a Booker constitutional Court, In Mr. the District Gonzalez- case), (U.S. cert. Feb. petition filed, mitigating offered no evidence that Huerta 2005) 04-1148). (No. The Court faced a suggests justi- a lower would be Oklahoma, similar issue Romano v. fied, presen- nor did he facts contest U.S. S.Ct. 129 L.Ed.2d 1 Indeed, report. specifical- tence the court (1994), Romano, capital another case. Gonzalez-Huerta, ly asked Mr. “Are all of held that sentencing even your [presen- the statements of fact jury impermissible factor considered report correct?” Mr. Gonzalez- tence] sentence, recommending death de replied, Huerta court then in- “Yes.” The fendant could not demonstrate that sub quired, any need for an “[I]s there eviden- stantial were affected when that tiary hearing disputed on facts?” Defense necessarily upon “conclusion rests one’s counsel stated there was not. The court 14, 114 intuition.” Id. at S.Ct. asked, again any mate- “Are there written than presentence report rials other This Court faces similar situation here. I should take into account?” Mr. Mr. Gonzalez-Huerta that if he urges were resentenced, lawyer replied, Gonzalez^-Huerta’s “Noth- the District Court would en- defendant, Judge.” conclusion, ter a ing on behalf lower sentence. But this Romano, then its intention as in necessarily upon The court stated to sen- rests Mr. to 71 tence Mr. Gonzalez-Huerta Gonzalez-Huerta’s intuition that the sen- asked, you months’ tencing employ incarceration “Are court would its newfound agreement with that?” sentencing Defense counsel discretion to enter a lower sen- “Yes, replied, your just easily Yet tence. could intuit again, honor.” One counsel, you court asked defense “would court here would enter the same sen- Indeed, cases, on tence. in many although like to make statement behalf of Mr. case, Defense not in a reviewing Gonzalez this time?” counsel court could easily Judge thanked at the intuit that district court would impose of the range greater low end and stated that he sentence on remand. Cf. Forbes, (i.e., slip op. No. 03- Fiscal Year 2002 Blakely), before 45, 47, Fed.Appx. WL 11.9 percent of were defendants sentenced (2nd 2005) Mar.1, 481605, *2 (unpub Cir. below the range without gov- lished) (“We note that should Forbes de -Booker, ernment sponsorship. Id. Post upon termine remand that for whatever percent 13.7 of defendants are sentenced reason, including possibility that he below the Guidelines gov- without sentence, might expose higher himself to a ernment sponsorship. Id. This is a change he in fact resentencing, does not seek he percentage 1.8 points. This 1.8 court”). Therefore, may so inform the I percentage point increase in the likelihood would hold that Mr. Gonzalez-Huerta has of a lower sentence —without case- not met his burden. specific indicia that a lower sentence would heavily post-Book-

The dissent relies on be entered —does not show “a reasonable er from statistics the United that, probability claimed, but for the error Sentencing States Commission. Linda See proceeding result of the [in case] Maxfield, Comm’n, Sentencing D. would have been different.” United States Data Extract March S: Numbers on Benitez, v. Dominguez (Mar. 14, Sentencings Postr-Booker (2004). 159 L.Ed.2d 157 2005) (available telling, Even more in Fiscal Year http://www.ussc.gov/Blakely/booker— only percent 0.8 of sentences were above (last 2005). 030305.pdf) visited Mar. Maxfield, range. the Guidelines U.S. Sen- statistics, Relying on these the dissеnt Comm’n, tencing Data Extract on March percent states that 13.7 of all sentences Postp-Booker 15: Numbers on Sentencings post-Booker are below the Guidelines Post-Booker, at 10. 1.9 percent of sen- range when the Government not does rec- tences are departure. range. ommend a The above the Guidelines argues dissent Id. that This is a suggests change percentage points. this statistical variance of 1.1 both the third and fourth If prongs plain- rely upon generalized this Court were to are met in review most non-constitu- statistics as suggests, the dissent then it tional Booker error cases. which, This lone would post-Book- face situation in statistic, however, does display er, percentage defendant has a 1.8 point picture. whole increased chance of a below-Guidelines- range sentence and a 1.1 percentage point The rate of non-government-sponsored, increased chance of an above-Guidelines- below-Guidelines-range sentences is any case-specific sentence. Without slightly greater post-Booker than before (or indicia that a greater) lower sentence Blakely and Booker were handed down. given, would be whether these statistics Maxfield, See Linda D. Sentencing U.S. Comm’n, show a probability reasonable that a lower Data Extract on March IS: sentence Numbers on would be entered is “conclusion Sentencings Post-Booker (Mar. 2005) (available necessarily upon [that] rests one’s intu- Romano, http://www.ussc.gov/Blakely/booker— ition.” U.S. at S.Ct. (last 2005). 032205.pdf) visited Mar. 2004.1 Maxfield, focusing just post-Booker departures.” Even statistical “downward U.S. Sen- data, Comm’n, important tencing there is an distinction that the Data Extract on March 3: percent dissent fails to Sentencings mention. Of the 13.7 Numbers on Post-Booker at 2. Thus, entered percent explicitly sentences below the Guidelines "[a]ll 8.3 cases range, percent 4.7 § of those lower cit[e] sentences either U.S. v. Booker or 18 USC 3553 upon approved guideline were based as a reason for a sentence below the I hold that Mr. Gon- 535 U.S.

Because would also omitted). meet the burden to I zalez^Huerta bears the (quotation L.Ed.2d review and prong plain-error third agree majority opinion with burden, I af- not bear he does his seriously in this plain error case does prong plain- third upon firm based fairness, public rep- integrity affect the as well the fourth. error review as judicial I write proceedings, utation of but specific factors separately discuss EBEL, concurring. Judge, Circuit that lead me to conclusion. majority’s I with the decision agree Judge Hartz has the fourth addressed affirm Gonzalez-Huerta’s concurrence, detail in his prong some plain-error prong the fourth the Olano1 ma agree reasoning.2 I with his and I, IIA, join test and therefore I Sections and Hartz’s concur jority opinion, Judge IIB, IID, majority opinion. and III of the rence, appropriately the sen note However, majority’s disagree I to make tencing guidelines’ purpose under the analysis and conclusion reached analy- and, thus, prong plain-error of the Olano more more third uniform IIC), accordingly (Maj. op. observe, therefore, sis sections They it fair. majority those join I do not sections fairness, generally would not advance Regarding prejudice-prong opinion. integrity public reputation Judge got I Briscoe analysis, believe that sense, systemic in a to re proceedings, join I IV right, accordingly, Section resentencing af mand individual cases for the fourth Regarding concurrence. of her — ter United States v. analysis, plain-error Olano -, L.Ed.2d 621 above, join HE of the noted Section (2005), im already where the sentence Judge I II of majority opinion. join Part within posed range falls established Finally, I add this Hartz’s concurrence. Rather, a guidelines. those sentence concurring opinion some additional to offer applicable range gen guideline within fourth-prong analysis applicable to the erally represents a within the analysis. similarly adopted national norms for such three appellant an the first When meets convicted defendants. plain-error analysis, of the as Gon- prongs sug- on this I would Building reasoning, case, appel- has in this “an zalez-Huerta at least three factors gest non-exclusive may then its discretion late court exercise this court consider deter- should error, if ... only a forfeited to notice but correct mining whether notice and fairness, seriously the error affect[s] appel- an Booker error has affected judicial integrity public reputation Cotton, rights. proceedings.” United States v. lant’s substantial Olano, range provide .... do a reason for 1. United States v. [or] not below-guideline (1993). Id. at 2 n. 3. sentence.” L.Ed.2d 508 Hence, рost-Booker only percent of sen- 8.3 approved a tences receive non-Guidelines agree majority opinion 2. I with both the and Here, Gonzalez-Huerta lower sentence. Mr. Judge Hartz that we cannot conflate argue does not additional Guidelines plain-error prongs and fourth third such, reading departures apply. proper As a Rather, analysis. two must address these post-Booker-only places Mr. of the statistics inquiries separately. only category where a percent lower 8.3 of defendants have received sentences. First, history. was the error constitutional duct criminal Unlike a determination, guilt/innocence This court a less restrictive applies error? which is analysis an appellant generally whenever “either-or” plain-error proposition, sen- a error. urges tencing constitutional See United is instead “the point choice (10th Brown, v. F.3d within a Congress.” States established Cir.2003). Paladino, If there had been constitutional United States (7th Cir.2005). case, here that affected Gonzalez-Huerta’s In this sentence, likely it much imposed would be more district court a sentence that fell judicial proceedings disrespect applicable cast within the guideline range. is, then, for uphold. would be much harder us to There a comfort level here be- See, McDaniel, e.g., United States cause Gonzalez-Huerta received a sen- Cir.2005) 540, (holding F.3d Sixth tence similar to the sentence most similar- ly Amendment would diminish historied defendants the United scheme). of criminal fairness States would have for received the crime in this Brown, But case the district court’s error for which he was convicted.3 See treating sentencing guidelines as man- at 1161.

datory advisory rather than was Third, I would consider whether there error. constitutional in the or proffered evidence record suggest that,

The second factor would consider that would if we remanded an appellant’s resentencing, whether sentence falls with- this case the district guideline range, likely in the now viewed as advi- impose significantly con- sory, particular the defendant’s sentence.4 different See id. at 1163. It Admittedly, backward-looking speculation this will be true of sen- most of an unknow- Instead, previously tences that fall within the manda- able mindset. at the fourth Nevertheless, tory guideline range. im- apply it is prong, objective analy- we can our own factor, though portant to consider this even sis to determine whether a different sentence support denying plain-error will relief in most discretionary likely. under a scheme is Fur- disposi- And alone cases. this factor is not ther, factor does drive the fourth- prong plain-error tive. The fourth analysis prong. like its the third does core, is, analysis discretionary prong, at its Again, is but one of several factors that heavy yet places one that burden on determining we will consider before whether seeking party it. invoke Whether a sen- or not to exercise our discretion to notice and range societally approved is a is tence within uncertain, plain prejudice correct error. If is factor, strong only among a but one factor simply uncertainty we can take that into ac- deciding several that we should consider in deciding weight give count in how much grant our whether exercise discretion to fourth-prong analysis. this factor under the plain-error relief. case, In this I did not find the absence of such evidence sufficient to override the defen- overlaps, degree, 4. While factor to some showing prejudice dant’s of under the third prong's analysis, with the third rele- is also showing he made because a sufficient prong. here vant under the fourth Neverthe- prejudice light being of in of his sentence less, whether a he defendant can show that very sentencing range the bottom of a be- likely substantially lighter a would receive by judge mandatory range, lieved the to be a discretionary on sentence remand seems to particularly when he had little incentive ei- necessary component any to be a me fair- object put to the And, ther to sentence or to on prong. the ness evaluation under fourth mitigating given prevailing evidence case the analysis, prong's the third we unlike here analysis, fourth-prong the law. I would binary not make the need determination whether, notwithstanding look appellant to see di- prejudiced whether or not the was sincentive, error, anything by plain worry the need there is in the record or we about blurring proffered suggest substantially the and would a distinction between error, engage harmless and need not in sentence if we to remand. different were judicial proceedings and would more aspect me that one whether

seems to injure reputation of courts likely an unfair sentence received defendant improve it. Defendant was sentenced likely than sentence would whether incorpo- in national norms accordance with if he degree were significant to a change sentencing guidelines within estab- for rated district court discre- to the returned a whose record, lished commission resentencing. On tionary evidence, been to im- charter two decades has however, no such nor is there is uniformity prove sen- the fairness any proffered. evidence such in To remand tencing the federal courts. then, case, three these fourth- In this in the resentencing absence evidence against all cut Gonza- factors prong Olano in guideline the record that was no constitutional There lez-Huerta. for this defendant inappropriate would be error; sentence fell Gonzalez-Huerta’s permit would serve district range, guideline within indi- applicable guidelines from in court to deviate those the same sentence cating he received personal idiosyncratic the exercise of similarly would convicted defendants other in the Nothing of fairness. record view received, nothing there was unfair so guidelines have failed to suggests perspec- from societal about his sentence significant feature of De- accommodate a tive; no rec- and there is evidence personal history, crime or fendant’s suggest that the dis- proffered ord or original was not unreason- sentence remand, court, able to exercise trict My reasoning able. follows: discretion, greater impose signifi- Thus, sentence. there is cantly different procedural is more famil- principle “No showing no from the defendant’s that even right, iar ... than that a constitutional or anything there un- unique perspective sort, may be forfeited right other he received. For fair about criminal well as cases as civil reasons, that this I would conclude these timely failure make assertion of not notice the district court’s court need jurisdiction having a tribunal right before error, guidelines treating Olano, determine it.” United States mandatory, the error does not because fairness, seriously integrity affect the (1993) (internal quotation L.Ed.2d 508 judicial proceedings public reputation omitted). Nevertheless, marks there this case. long correcting unpre- tradition of also served errors limited circumstances. HARTZ, Judge, concurring: Circuit 52(b) Fed.R.Crim.P. states: “Plain errors rights may affecting defects I. they although brought noticed were not Tacha’s the join Judge opinion I to of the Under the the attention court.” focus on separately court. I write to how a plain-error who has doctrine defendant remedy provided by the Booker affects preserve a claim of error in dis- failed plain-error review. only is trict court entitled to relief when (1) un- the district court committed error II. law time appeal der the in effect the the (2) heard, is the error sentence must be affirmed. is obvious Defendant’s law, the the error affected plain-error under the doctrine is Relief 52(b) resentencing rights. Rule proper, because a remand for defendant’s the integrity the then “leaves the decision correct would not advance fairness or ignore within the sound discretion to reverse to correct the error forfeited error is appeals, injury and the court the the from of the court defendant suffered the unless her rights. should not exercise discretion violation his or constitutional fairness, seriously the the error affects Such would be the appropriate ap- also judicial integrity public reputation had remedial proach opinion the in Booker Olano, proceedings.” If, say, been otherwise. the (internal quotation marks omit- S.Ct. 1770 had decided the cure Book- ted). require error er was to a retrial at which plain-error jury prongs beyond The first of the the would have to find a two rea- disputed test are not in this case. Most of facts sonable doubt all needed deter- the er- mine the appellate regarding decisions offense level used to calculate the ror in focused on then guideline range, prong Boo/cer-issue cases have the fourth the error ordinarily the third effect of on would be satisfied if the defen- —the rights. prejudiced the defendant’s substantial But dant had been the by trial judge’s by unusual of the Book- critical a making finding pre- because the nature decision, addressing er of the propriety ponderance of the evidence. (what I will refer to exercise of discretion But adopted not the remedy may enable prong) as the fourth often the Booker. the judge Even if had made no appellate troubling court avoid the critical finding, a defendant who preserved

third-prong that have divided the issues is to resentencing entitled with the other circuits. longer guidelines being mandatory. no Booker judge What was unusual about the de- And when the did make critical finding, remedy cision was the disconnect between the con- is not to set aside the but, remedy. improper only stitutional To finding again, violation and the to re- sure, remedy (making quire resentencing discretionary- the Sentenc- under a ing advisory cures only) guideline regime. explain, As shall highly plain-er- violation (permitting significant applying constitutional by Olano, judge preponderance to find ror’s fourth prong. As stated in necessary impose evidence the facts a discretion not be to cor- should exercised severity). Ordinarily, of such rect forfeited “unless the error however, fairness, seriously integrity, cure for a vio- constitutional affect[ed] public judicial lation If improp- reputation proceed- is more direct: the court Olano, erly jury, ings.” instructed the case must be (internal omitted). instruction; proper retried with a inad- quotation marks may presented language suggest missible evidence was to the This that in exercis- jury, ing error, without the case must be retried discretion whether to correct the evidence, appellate etc. those if a constitu- should back- cases look at, tional say, damage error —such as the admission evi- the unfairness or wards — dence reputation proceedings barred the Confrontation Clause—affected the Defendant’s substan- caused the error the district court. (thus satisfying prong surely underlying tial three of But concerns are test), ordinarily fairness, plain-error simply integrity, public natural reputation to conclude that the fourth is also of courts. And those vir- the necessary satisfied reversal in can in of light the tues also be viewed the fairness, integrity, pub- remedy interest of and the to for the error —in provided be judicial words, reputation looking lic to see proceedings. by of Not other forward damage reputa- the perceptions only error will advance could correcting the whether tion of courts. The 1984 statute was the the the granting appellant If those ends. Writing intended reduce problem. to the entitled he she would be relief to which or the in v. for Court United States in district preserved had issue been the — U.S. -, 738, 160 L.Ed.2d fairness, in- S.Ct. the not advance court would (2005), Breyer spoke of “the Justice pro- judicial of tegrity, public reputation or uniformity sentencing increased of that the why appellate court ceedings, should Congress system intended the Guidelines grant to that relief? its discretion exercise to achieve.” Id. 757. See also id. noteworthy I think it regard, In this (‘“[T]he (Stevens, core dissenting) J. plain-error relief under the rejecting underly- and the guidelines function of the case, the Su- fairly in a recent doctrine ing disparity ... is to reduce statute that “it would be preme observed Court sentencing pre- and restore fairness and a of conviction such reversal ” dictability sentencing process.’ to the which would [and affirmance] [serious- (1987) (re- Cong. (quoting 133 Rec. fairness, integrity public ly affect (Scalia, Hatch))); marks of id. at 789 Sen. reputation proceedings].” of (“Justice J., Breyer’s dissenting) opinion States, 520 U.S. Johnson United repeatedly acknowledges for 1544, 137 L.Ed.2d 718 117 S.Ct. objective primary of Act was (1997). That sentencing disparity.”). to reduce Thus, plain- me essential in it seems to although, of purpose survives Booker to determine whether Booker cases course, granted discretion now to sen- by resentencing reversal and remand tencing judges uniformity. will decrease judge re- discretionary-guideline objectives of To further the fairness fairness, integrity, or gime would advance uniformity, Sentencing Commission public reputation courts. To for two to has labored decades establish requires resolve the issue examination sentencing. national Mis norms See by a re- purpose what would be served States, 369- tretta 488 U.S. sentencing judge mand allow the 102 L.Ed.2d 714 sentencing range from the set deviate responsibilities of (summarizing the Com guidelines. mission). factors These norms reflect the sentencing guidelines, The federal appropriately should be considered remembered, product must were be weight given and the sentencing arising unfairness from concern about the sentencing judge pre- those factors. at- could be deviations depart the guidelines Booker could from idiosyncracies of indi- tributed range, only when “the court but judges. vidual Prior enactment finds aggravating that there exists an Reform Sentencing Act the broad kind, mitigating circumstance of or to enjoyed by sentencing judges discretion degree, adequately taken into consid judges “led perceptions ‘federal Sentencing eration Commission unjustifiably mete out wide guidelines re formulating should histo- sentences offenders similar in a sult sentence different from that dе ries, crimes, 3553(b)(1). commit- § convicted similar scribed.” 18 U.S.C. See ” Koon, 92-96, ted under similar circumstances.’ Koon generally 518 U.S. States, (describing operation guide v. United S.Ct. 2035 lines). (1996), many sentencing judges quoting 135 L.Ed.2d 392 No doubt (1983). S.Rep. 98-225, disagreed ‍​‌​‌​​‌​‌‌​​​‌‌​‌​‌​​​​​‌‌‌‌‌​​​‌​​​‌‌​​‌​​​​​‌​‍guidelines ranges Such with the p. No. surely preserve Congress, in But who did not below particular cases. the claims they potential guidelines raising for the are with aware of the us. sentencing of offend the sensibilities case, Turning present nothing to the in uniformity that

judges, chose as worth suggests the record that origi- Defendant’s cost. nal sentence was unreasonable. What, then, of accomplished by plain-error remand- fourth the is test satisfied, being the be af- ing resentencing for the sentence must when firmed. judge’s original findings ques- fact are not applied correctly

tionable and the court BRISCOE, J., SEYMOUR, J., joined by depends. Sentencing Guidelines? That HENRY, J., concurring in part and and apparent In it will be some circumstances part, EBEL, dissenting joined by and guide- from record on appeal J., IV, J., LUCERO, as to Section and as result process lines has failed—that the to Section V. objectively unreasonable. To remand for may resentencing in such circumstances I agree majority with the — “fairness, necessary integrity, to advance of issuance reputation judicial pro- of public U.S. -, 160 L.Ed.2d 621 cases, In the bulk ceedings.” great of (2005), must now conclude the district however, such appears, no unfairness by applying Sentencing court erred resen- purpose the sole of a remand for in a rather than ad allow one or the tencing party would be to visory fashion the time it sentenced idiosyncratic other to benefit from Although agree Gonzalez-Huerta. I judge. particular Remanding views of the this error was neither nor constitutional resentencing in such circumstances nature, disagree structural may eyes be “fair” in the of the error does warrant correction. When judge prevailing party, and the but sen- sentenced, Gonzalez-Huerta was one in no by tence outside the national norms set the courtroom —neither the district guidelines is not fair from the when viewed nor applied counsel—knew of or the cor justice perspective the federal criminal view, my rect law. In error not whole, system and the process affects Gonzalez-Huerta’s remanding sentencing disparities to create rights, it affects funda seriously also injure public reputаtion will “the fairness, public reputa mental integrity, proceedings.” judicial proceedings. Accordingly, tion of resentencing. I would remand this case contrary is not

This view the mandate recognizes injustice in Booker. Booker I. sure, disparate sentencing. To be greater sentencing September mandate result in will Gonzalez-Huerta But disparities. by grand jury an undesirable indicted federal consequence reentry deported rul- count alien Court’s one ing, ruling’s goal. Although aggravated not the dis- of an felo- previously convicted parities may necessary, ny, § be a unavoidable violation U.S.C. Gonza- consequence granting guilty charge relief to those to that pled lez-Huerta preserved Blakely who Apprendi or November and was sentenced argument sentencing, plain-error court on March 2004. At the district consequence not require sentencing, doctrine does time of ad- magnified by to be all facts granting relief those mitted relevant set forth because, contrary him to Book- report, sentencing in- investigation presentence the er, Sentencing in prior of his conviction. it the Guidelines cluding applied fact the facts, admitted the dis- advisory a rather than fashion. upon Based those argues Gonzalez-Huerta that this trict court sentenced further a sentence imprisonment, 57 months’ structur- both constitutional and error was guideline applicable bottom of the the Accordingly, al Gonzalez-Huer- in nature. months). (57-71 Judgment was en- resen- ta he is entitled to be contends by court on March the district tered tenced. filed a notice and Gonzalez-Huerta 8, 2004. appeal on March II. indicate, Gonzalez-Huer As facts these Booker, ad- the Court 1, 2004, predated March sentencing on

ta’s Ap- questions: “whether [its] dressed two rulings in both Supreme Court’s the — prendi applies line of to the Sentenc- U.S. -, cases Washington, Blakely v. Guidelines, so, (2004), ing portions what and and L.Ed.2d 403 S.Ct. 2005). in the effect.” S.Ct. (January Although Ap Guidelines remain Booker 466, 120 the Jersey, respect question, at 747. first v. New With prendi (2000), predat Apprendi 147 L.Ed.2d 435 the held that its line of Court sentencing, cases, including its hold Blakely, “applies ed Gonzalez-Huerta’s increasing Thus, a sentence any fact Id. ing Sentencing at 755. Guidelines.” conviction) (other be statutory maximum must beyond prior a “[a]ny fact than jury seemingly inappli to a support submitted a necessary which is sentence case, since cаble Gonzalez-Huerta’s maximum by exceeding authorized not did exceed Gonzalez-Huerta’s plea guilty a facts established penalty and the statutory maximum by the de- jury must be admitted verdict engage not in fact- court did district proved jury beyond to a fendant or finding. until after Gonzalez-Huerta Not doubt.” Id. at 756. As for the reasonable did appeal filed notice the Su had his Court, in can question, second what be indicate, Blakely Court issue preme “an- holding,” “remedial referred as its case, Washington state the context of question by finding remedy swered] “statutory maximum sentence” for of the federal provision guide maximum Apprendi purposes manda- that makes the Guidelines statute on judge may impose solely line sentence a 3553(b)(1) (Supp.2004), § tory, 18 U.S.C.A. jury the facts reflected basis of hold- constitutional incompatible [its] the defendant. verdict admitted ing.” specifically, Id. the Court More must provision “conclude[d] September Gonzalez-Huer- On excised, one other severed and as must brief original appellate ta filed assert- his 3742(e) (main section, statutory § ed. and that, light ing pertinent part Blake- depends upon which Supp.2004), Sentencing Guidelines ly, “the federal mandatory nature.”1 Id. at Guidelines’ severable.” unconstitutional [we]re result, held, was 756-57. The the Court Following Br. 4. the issuance of Aplt. effectively adviso- the Guidelines sup- “make[ ] to file parties we directed the words, ry.” In other Id. Gonzalez-Huerta now plemental briefs. held, requires court erred “[i]t the district asserts 3742(e) applicable departures Guidelines sets standards of re- from 1. Section forth range. including de novo appeal, review view Finally, ranges, see er’s issuance. the resolution of court to consider 3553(a)(4) (Supp.2004), § but pending U.S.C.A. cases on direct that do review in the sentence the court to tailor permits a may involve Sixth Amendment violation well, statutory concerns as light of other hinge upon application of the harmless- 3553(a) § Id. (Supp.2004).” see error doctrine. holding

In its remedial Application requires of these directives a how its decision was to be Court outlined reviewing type court to first determine the applied: error(s) As issue. Booker makes apply today’s holdings must [W]e clear, pending a case on —both direct review at holding our the Sixth Amendment time of opinion’s po- issuance can interpretation remedial the Sentenc- (a) a tentially involve Sixth Amendmеnt review, all direct ing Act—to cases on resulting violation from the district court’s (citations omitted). fact not That does enhancement of the defendant’s sentence every that mean that we believe sen- (b) upon facts, judicially-found based a vio- gives tence rise to a Sixth Amendment i.e., holding, lation remedial Booker’s every Nor do we that violation. believe the district court’s treatment of the Sen- new appeal will lead to a mandatory as tencing Guidelines rather re- hearing. expect That is because we (c) discretionary, than both. After de- apply ordinary pruden- viewing courts error(s) termining type alleged doctrines, determining, tial for example, issue, reviewing court must then deter- raised whether the issue was below and mine whether the defendant raised the “plain-error” whether it fails the test. issue(s) and, turn, below the standard of because, involving It is also cases that be applied review should to the al- violation, a Sixth Amendment whether error(s). leged resentencing is it warranted whether will be sufficient to instead review III. may depend sentence for reasonableness Turning to appeal, Gonzalez-Huerta’s upon application the harmless-error undisputed is that he has asserted one doctrine. error, i.e., that Booker-related the district 125 S.Ct. at 769. in his applied Sentencing case At can least four directives be drawn in a than Guidelines rather dis- First, from this Booker is to be language. (what cretionary majority fashion re- cases, applied retroactively to such as Gon- fers to “non-constitutional Booker er- zalez-Huerta’s, pending di- were on ror”).2 The next one question, and the on rect review at time of Booker’s issu- heavily en banc is which our review most Second, every ance. case pending focused, is what standard of review to at the direct review time of Booker’s issu- error. apply alleged ance will a Sixth Amendment sen- involve Generally apply of two speaking, one tencing require violation or new sentenc- Third, arising ing “ordinary standards review errors hearing. prudential test, doctrines,” including criminal cases. Which standard review expected applied apply depends upon to be will whether or not pend- are cases objection ing timely on direct review at the time of Book- defendant asserted agree majority nor in nature. the error stitutional structurаl asserted Gonzalez-Huerta neither con- sentenced, Sentencing Act If the the Federal the district court. the error objected, the United States made Sen timely application defendant “nonforfeited,” mandatory. tencing See generally considered 3553(b)(1). Further, § it is apply the “harmless error” safe in turn U.S.C. and we time, say including in Federal Rule of Crim- one outlined that no standard 52(a). court, Procedure and the district inal Olano, 507 predicted absolute sea- could have (1993). stan- Under that change 123 L.Ed.2d in federal dard, “[ajny ... does not affect error by ultimately wrought be the disregarded.” be i.e., must holding, in its Booker remedial Fed.R.Crim,P. 52(a). did If the defendant “the of excising provision and the severing error, it timely object general- to is the the federal statute that makes “forfeited,” and in turn ly we considered 756, 125 at mandatory,” S.Ct. so Guidelines outlined “plain the error” standard apply advisory. as to the Guidelines render of Procedure in Federal Rule Criminal Thus, overwhelming in contrast to the ma 731, 52(b). Olano, at 113 S.Ct. 507 U.S. cases, jority plain error it is unreason 52(b), ap- a Rule court 1770. Under my view conclude that Gonzalez- able (1) error, (2) peals may an that is correct Huerta could and should have raised the (3) plain, and that affects substantial Ohio, issue below. See O’Connor v. 385 (4) seriously error only but the rights, 252, 93, 92, 17 L.Ed.2d 189 U.S. 87 S.Ct. fairness, integrity, public the or (1966) affects (refusing punish criminal defen proceedings. reputation failing anticipate for a new consti dant Cotton, 631, 625, 122 535 States v. U.S. recognized during pen- tutional rule (2002). 1781, Al- 152 L.Ed.2d 860 S.Ct. dency appeal); of his direct United States 52(a) 52(b) “re- (2d and Rule though Cir.1994) (“If Rule Viola, 37, F.3d 42 v. is quire[ inquiry,” kind of there same ] failing penalize we were to defendants difference between them: important one challenge precedent, entrenched we plain error cases defendant “[i]t an insisting upon would omniscience on be who rather than the Government bears part of defendants about the course persuasion respect prej- burden judges. we as the law that do 734, Olano, udice.” 507 U.S. 113 S.Ct. duty only Imposing such would encour- 1770. objections ab- age appeals.”), and frivolous v. rogated grounds, on other Salinas Unit- difficulty we in this case is face 52, States, 65-66, 118 ed S.Ct. by error asserted Gonzalez-Huerta 469, (1997); generally see 139 L.Ed.2d 352 neatly not fit within either of these- does Benitez, Dominguez sure, To categories. Gonzalez- two 159 L.Ed.2d U.S. assert the error Huerta did not below (2004) primary one (noting of the raising it time on instead is first 52(b) underpinning Rule is “to en- policies If appeal. were to consider courage timely objections”). It therefore fact, classify easy to the error it would be un- disingenuous, me as as well as strikes straight- then to a “forfeited” and move fair, to Gonzalez-Huerta’s error like treat application plain error forward stan- 52(b). errors, so, majority plain the vast of other To do dard outlined Rule however, require in turn to sat- of this ignore the realities error,standard.3 isfy typical plain At time Gonzalez-Huerta was case. (10th Cir.2005), Labastida-Segura, In United States to fit case also fails 23 L.Ed.2d 284 Gonzalez-Huerta’s (“Our plain judgment framework must on our neatly within the be based own noted, plain reading As er the record what for another reason. and on seems to us probable impact ror cannot be corrected unless affects to have been the Olano, issue). Here, however, rights. defendant’s substantial the” error Gon- S.Ct. 1770. most proceedings “[I]n zalez-Huerta’s cases,” “that must this means were conducted the district court under It prejudicial: have been must have affect what we now know was the mistaken as- pro sumption Sentencing ed the outcome the district court Typically, applied in ceedings.” appellate Id. were to be fashion. Thus, applying court error test is able there was no opportunity incen- tive, of an post-Booker, to make a reasonable determination as there now for Gon- prejudicial error’s effect on the district zalez-Huerta or the government pres- by reviewing record ent proceedings arguments evidence outside of the States, E.g, v. United bounds allowed appeal. Johnson Guidelines.4 See 470, 1544, 461, Barnett, 516, 520 117 137 v. United States F.3d 398 528 (6th Cir.2005) (“Under that, de (concluding post L.Ed.2d 718 the new -Book- framework, spite deciding district error of er the empow- court’s district court is i.e., error, materiality, greater the issue of Gaudin ered with discretion to consider 3553(a) provided § perjury prosecution in a rather than sub the factors in 18 U.S.C. sentence.”); mitting jury, determining proper it to the there was no basis Unit- (2d sup Crosby, for reversal “the ed v. because evidence States 397 F.3d 115 ”); Cir.2005) (“It porting materiality ‘overwhelming’ was will ... impossible be to tell California, Harrington v. what considerations for both sides counsel applied avoiding plain requirements.” court the harmless error standard to issue and Gonzalez-Huerta, who, Heldeman, 220, 224, a defendant like as- v. F.3d United States (1st 2005). serted non-constitutional Booker error. The 2005 WL at *3 Cir. that the in La- difference is defendant Blakely example, bastida-Segura supplemental appellate was sentenced after For his brief, Blakely-based argues and thus was to assert a able that "[u]nder scheme, challenge [mandatory to the Guidelines. Id. at 1142. No- guideline] ... the old the however, tably, the defendant in Labastida- court was not [district] allowed consider Segura accurately predict remedy did the jurisdictions a ‘Fast that some have Track’ ultimately adopted by be Su- that would program illegal reentry defendants that Booker, i.e., object preme Court in he did not substantially allows them receive lower by asserting before the court district than are defendants in sentences available to advisory applied be Guidelines should in an jurisdictions program.” Aplt. without such a Instead, rather than fashion. he Suppl (citing atBr. United v. Armen States provisions asserted that the unconstitutional ta-Castro, (10th Cir. were not Id. Guidelines severable. 2000)). post-Booker advisory Under Nevertheless, court this treated the non-con- scheme, however, guideline he notes that “a stitutional error as if it had been Booker sentencing required court is to consider 'the below, applied raised stan- harmless error sentencing dispar need to avoid unwarranted dard, and remanded case for resentenc- among ities defendants similar records ing. Id. at 1143. guilty who have been found of similar con " duct,’ and thus it would be reasonable for Although point, perhaps it is unclear court, in this on remand to the district court case given, holding in Labastida- disparity produced Segura, “reduce 'Fast adopt approach will similar to that Circuit, i.e., sentencing lowering” programs by his recently Track' announced the First "offering] opportu almost claim he "did not have treat colorable since preserving nity program.” in the district court as the Boolcer from such a Id. benefit exceedingly difficult for” Gonzalez- to the brought might have they they known that that his sentence would had Huerta “to show judge’s attention impose judge to a non- urge the have different the district had could been sentence.”); advisory, him under rather sentenced [an] Jaber, No. F.Supp.2d mandatory, than the Guidelines frame CRIM.02-10201-NG, 2005 WL 528; also United States work.” Id. see (D.Mass.2005) account, into un- (taking *15 Paladino, 481-82 3553(a), that the § the fact defendant der Cir.2005) (noting difficulty assessing salary not take a profit and did was on sentencing error because the effect of a drug the fact that organization, from the point ... of a “sentencing is the choice in no criminal con- engaged the defendant by Congress, range within a established years prior his during the two duct one”); normally and is a broad arrest, and fact defendant’s (recognizing impossible “the id. at *482 post-conviction, pre-sentencing record was proving burden of though “hospi- even his wife was “perfect,” imposed judge a different sen dysfunctional,” his residence talized judge thought guide tence had the foreclosed, unable find a and he was was mandatory”); Labastida-Segura, lines Ranum, meaningful job); States v. harmless error (applying F.3d at 1143 (E.D.Wis.2005) F.Supp.2d Booker standard to non-constitutional er formerly (concluding factors forbidden concluding impossible ror Guidelines, to be considered under what sentence would have been determine family age, as a ties and such defendant’s imposed by the district court under an mental and responsibilities, physical, and framework). advisory Guidelines condition, may now be consid- emotional majority past quickly The moves this ered, -Booker, 3553(a)); §to post pursuant prejudice problem, suggesting only Kalar, Advisory: Booker see also Steven G. might to if there are state- be found exist Patch, 8, Breyer Champion 29 15 Into the sentencing ments in the record from the (Mar.2005) (suggesting “prohibit- with the expressing dissatisfaction discouraged departure” ed or factors listed believed, at sentence it Guidelines tai- Chapter 5H of the Guidelines “are time, required impose. Focusing it was equitable analy- lor-made for the broader evidence, prejudice analysis on such Booker). under apply sis” that will now however, ignores reality of the pre- Likewise, there was no reason the dis- beyond sentencing landscape. It is Booker give trict court to consideration to serious circuits, including that the federal dispute than sug- whether a sentence other own, “repeatedly sentencing our instructed by the gested appropriate, Guidelines was impose sentences pre-Booker courts any there incentive for the district nor was applicable mandatory Guidelines within the the operation court to voice concerns about and range, exceptions, limited ... with Barnett, F.3d of the Guidelines. See consistently constitutionality оf upheld the sum, In at 528-29. because the entire mandatory and their na- legal framework which Gonzalez-Huer- ” Barnett, at 528. ture .... 398 F.3d flawed, sentencing ta’s occurred was there turn, law case sub- well-established “[t]his way prove, is no for him to for us stantially undermined need incen- assess, accurately the likelihood that pre-Booker tive courts imposed court would have a differ- district objections note and reservations in had it had the dis- their ent sentence it known words, the then- sentencing defendants under cretion to do so. In other “it would 529; outcome, Id. at see Guidelines.” but this issue need not be Heldeman, 2005 WL also addressed. Nor need we address those (“we recognized at *3 that a have presumed errors that should prejudi- may judge [pre-Booker] well not district cial cannot make defendant expressed his or her reservations be- have specific showing prejudice. Normal- guidelines them hope- cause made ly, case, although perhaps not in every less”); Paladino, 482-83, (sug- the defendant must make a specific that, e-Booker, gesting pr “[a] conscientious showing of prejudice satisfy the “af- judge” guidelines was “one who took the fecting rights” prong of Rule seriously private her] whatever his [or 52(b). views”). Thus, I agree the Sixth 507 U.S. at S.Ct. 1770 (emphasis improper,” “[i]t Circuit would be added). language This recognizes two ironic, cruelly indeed for us now “re- possible exceptions to the “normal” formu quire defendants such as” Gonzalez-Huer- lation of the prong. third first these produce ta type “to this of evidence—-that exceptions i.e., errors,” is for “structural provide courts no reason to had the so-called “special category of forfeited our pr e-Booker case order law—in errors that can regardless be corrected to establish that their substantial their effect on the outcome.” Id. at Barnett, been affected.” 398 F.3d at 1770; Barnett, 113 S.Ct. see 398 F.3d at manner); (interpreting Olano IV.' also Dominguez see States Beni tez, provides way itself out of Olano L.Ed.2d recognizing prejudice (noting

thicket struc entitle, (or component “third tural errors can a- prong”) so-called defendant error test can be in relief “without regard modified to [their] effect on Cotton, cases: extreme the proeeeding[s]”); 535 U.S. at 632, 122 (suggesting S.Ct. 1781 need not decide whether We referring in Olano was to phrase “affecting rights” structural er is rors). always synonymous “prejudicial.” Although Gonzalez-Huerta con with (citation omitted). may be a tends the error at issue is structural in spe- There nature, category I agree majority cial errors that can that it is of forfeited leaves, however, regardless be corrected their not.5 That on still the sec- of effect majority any showing preju 5. The states that "structural errors conviction’ without of must, minimum, dice.”). Likewise, at a be constitutional er the Third Circuit and this Maj. Op. Although suggested at as rors.” 734. the Su much. See United Stevens, 239, (3d preme language Court has sometimes used States v. F.3d 244 Cir. 2000) suggesting only (stating that constitutional errors can that nonconstitutional errors errors,” qualify e.g., "generally as "structural a Neder cannot amount to structural de States, Lewis, fect”); United Appx. 119 S.Ct. 21 Fed. (1999) ("Under cases, (10th Cir.2001) decision) (unpublished L.Ed.2d our a (concluding constitutional error is either structural or it is that non-constitutional errors can not.”), reversal) expressly (implying, Fourth Circuit has held warrant automatic with concluding, qualify directly that can also out a non-constitutional errors that violation of 8(c) error). as structural errors. See States v. a United Cur Fed.R.Crim.P. structural belo, Cir.2003) (hold assuming, arguendo, Even that structural er decision, that, errors, ing, ain 2-1 “whether rors can I violative include non-constitutional not, by of the Constitution or the error here would still is conclude that error asserted structural, and such errors 'invalidate the Gonzalez-Huerta is structural in nature. Numbers on Post- recognized in tract on March 15: exception Ola- potential ond 2005) (avail- (Mar. 14, no, i.e., presumed Sentencings that “should be Booker errors cannot make http://www.ussc.gov/Blakely/book- if the defendant able prejudicial data, showing prejudice.” of specific According that 030305.pdf). er— Obviously, lan- 1770. 113 S.Ct. approximately percent post- of all 36.0 something meant refer guage was advisory Booker sentences were below errors. See Domin- other than structural Further, range. approximately Guideline Benitez, (noting at 2339 guez post 13.7 of -Booker sentences percent all errors, “re- that, for structural other than advisory were below Guideline way in to preju- tied lief for error is some government- than a a reason other Barnett, effect”); 398 F.3d at 526- dicial sponsored from Extrapolating reduction.6 data, appears it reasonable to assume Barnett, I con- Circuit Like the Sixth all many as 13.7 perhaps percent that asserted Gonzalez- clude that the error plain-error Booker defendants our exception. this second Huerta falls within cases, approximately set one out (“We are convinced defendants, re- every seven such case which to appropriate that this anis they if ceive a below-Guideline sentence presume prejudice under discretionary were sentenced Olano.”). begin To Court’s decision words, regime. In other there is Guideline with, the reasons out- apparent, it every suggest that one out of some data above, making the task of lined that prejudiced seven of such defendants were im- prejudice nearly specific showing mandato- application pre-Booker and others possible for Gonzalez-Huerta Further, ry regime. con- Guideline i.e., him, similarly to “set” situated analysis fine' those defendants our prior were defendants who sentenced who, Gonzalez-Huerta, pre- like received a Blakely. Notwithstanding Booker and very at the of the Booker sentence bottom fact, data post-Booker the available applicable range, appears Guideline safe probabili- say us to with reasonable allows actually percentage assume near-certainty, ty, perhaps some by mandatory prejudiced application “set” within this were defendants con- higher. Guidelines is therefore by application of man- prejudiced fact prudent course of clude “most datory regime. On March Guideline is to unique action” in these circumstances Sentencing States Com- exception pre- apply the second Olano Analysis Policy issued mission’s Office prejudice. Id. at 529. sume compiling post- data memorandum Although provides ample support Olano sentencings as the close-of-busi- Booker 15, prej for of the application presumption Linda D. Max- ness on March 2005. Comm’n, field, I is another Sentencing approach, Data Ex- udice believe there U.S. post percent post -Booker were Notably, percentage of -Booker sen 13.0 all sentences advisory guideline range other falling for reasons below the Guideline below tences government- government-sponsored de than a downward for reasons other than Maxfield, Sentencing parture); ‍​‌​‌​​‌​‌‌​​​‌‌​‌​‌​​​​​‌‌‌‌‌​​​‌​​​‌‌​​‌​​​​​‌​‍steadily rising Linda D. U.S. sponsored been reduction has Comm’n, Sentenc- See D. Numbers on Post-Booker since the issuance Booker. Linda Comm’n, 28, that, 2005) Maxfield, (Feb. (noting Febru Sentencing ings as of Bata Ex 2005, percent -post-Booker ary 12.0 of all 3: on Post-Booker tract on March Numbers (available (Mar. 2005) guideline range were Sentencings at sentences below government-sponsored http://www.ussc.gov/Blakely/booker— reasons other than a that, departure). 030305.pdf) (noting downward as of March

755 of case that additional provides “presumption prejudice” source law approach ap other Our court and circuits support. to pears achieve much the same result as recognized “supervening-decision doctrine, the supervening decision albeit Santiago, See v. doctrine.” analysis modifying the under the third (2d Cir.2001) F.3d (noting 215 238 prong plain of the error test rather than when is supervening that source of error by channeling the case into the harmless law, judicial decision that settled it alters error framework. the third appropriate modify prong to In comparison slavishly applying the plain govern of the error rule so traditional formulation of the third persuasion); bears the ment burden test, plain adopting “pre- Washington, States United F.3d sumption prejudice” approach will un- (D.C.Cir.1994) (recognizing doubtedly result in more of relatively noting and it “reflects doctrine plain-error set of small Booker being cases unfair, that it principle would be and even remanded for resentencing. The costs as- contrary to the efficient administration of result, however, sociated with that are

justice, expect object defendant view, in my minimal particularly in com- existing appears where so clear trial law parison the benefits of ensuring that any possibility as to foreclose of suc subjected defendants are not to unneces- cess.”); see also Anixter Home-Stake sary improper deprivations and of their Prod., 77 F.3d Cir. liberty. See States v. United Serrano- 1996) in (applying similar doctrine civil Beauvaix, (1st Cir.2005) F.3d case); Zeigler, States v. F.3d (“Given J., (Lipez, concurring) what is (10th Cir.1994) 486, 494 (appearing to ap stake poten- decisions—the government ply approach similar where tial additional years months even objected to sentence for defendant’s prison believe that the increased ad- time on on appeal intervening first based —I ministrative burdens are a price tolerable effectively decision Williams, pay.”); United Statеs v. circuit precedent). overruled This doc (2d 2005) (“A Feb.23, Cir. trine, appears which rooted in to be Ola-n event, resentencing is a normally brief tak- o7, recognizes that defendant clearly “[a] ing less than a day requiring the duty object [something] has no defendant, counsel, attendance of firmly is based established circuit au Barnett, personnel.”); and court thority,” and thus “cannot said to have (“In (Gwin, J., concurring) sum- a right’ by making objec ‘forfeited an mary, unnecessarily tion, restrictive er- since at of trial legal the time no Viola, analysis ror will result substantial addi- right existed.” 35 F.3d at 42. tional work for falling scope within this court will save the Cases this doc * * * no are district courts almost time. trine treated a manner similar to 52(a),” “harmless error Rule believe more efficient to remand review under thereby requiring government case to the district court for re-sentencing. “the [to] Otherwise, adopt show the error did affect a rule that results rights.” defendant’s substantial Id. expenditure appellate The an inordinate of Support practice following 7. for the can also be attack doctrine drawn the its invalidation” O'Connor, Supreme from where the Court Supreme during pendency the the Court of that an held Ohio state defendant's "failure to appeal. his direct U.S. at practice object long to a Ohio which had 252. right strip [could allowed of not] him his

75 Third, resources, yet majority questions “pre- district the the saves the

court little.”). sumption prejudice” approach of because “placing appellant the on the is one burden reserva majority expresses The three distinguish- of the characteristics essential “presumption the of adopting tions about error,” plain from ing error harmless my view, of none prejudice” approach. “[sjhifting appellee the burden the First, persuasive. those are reservations seriously this blur distinction they years that “in the twelve since assert precedent.” would be inconsistent our with Olano, [Supreme] in the Court its decision Maj. Op. at 736. reasons Again, the this of again category has mentioned never discussed, already apparent is that this it to applied alone presumed prejudice —let neatly case and others it do not fit like Maj. Op. factual scenario.” analogous the the within either harmless error or true, it is Although at 13. this statement is framework, and plain error thus demand Supreme has equally true that the еxception. some of The type meaningful repudiated language the in expressly never “presumption prejudice” fact that the of discussing category presumed Olano the of approach may “blur be- th[e] distinction” cannot, majority prejudice. the Further, not, my in tween the two standards is my view, any in that has point to case view, reject a meaningful basis on which to come the Court since Ola- Supreme before approach, particularly the since “pre- the compelling presented no has such sumption prejudice” approach originat- of that “presumed case for application Indeed, ed with the Court and not the if error prejudice” exception. the courts, ap- lower federal and because the now asserted Gonzalez does fall obviously proach for an exceed- seriously then I is suited exception, within this Moreover, ingly narrow cases. the question any ever will. As for case post- alleged inconsistency “pre- the the majority overlooks various between sumption have applied prejudice” approach Olano circuit cases that and our error, prejudice” approach precedent regarding ma- “presumption plain Barnett, errors, e.g,, jority other F.3d at point any does not cases similar cases), hand, (cataloging well as one it point nor can have applied cases cited above which in rejected cases “pre- which supervening-decision sumption doctrine. prejudice” approach.

Second, majority suggests that be- sentencing judge cause in some cases “the (cid:127)V. [may expressed unhappiness with have] of the Guidelines on nature With this modification of burden of record,” “establishing that non-consti- persuasion respect prejudice tutional affects turn to place, application plain Booker error now of the Maj. impossible Op. not an task.” error prongs test. first two discussed, i.e., (1) test, 14. already plain For the there reasons was an error may plain, the fact that a of such cases dis- seriously handful cannot not, view, my puted light basis case.8 In exist reasonable the remedi- rejecting preju- holding apparent al it is “presumption treating dice” approach. district court case erred in Every applied government circuit that has fied. The in this case likewise analysis agrees to Booker error has agreed prongs that the first and second prongs first are and second of the test are satis- test satisfied. (1936)). mandatory than the Guidelines 80 L.Ed. 555 question rather is whether advisory. Although here, this error standard is satisfied where there is a “plain” at the time of reasonable probability Gonzalez-Huerta’s that, (since had the district court yet applied Booker had not been Guidelines in an advisory time), rather than man at that it is the at the issued law datory fashion, Gonzalez-Huerta would appellate time decision that is rele- have received lesser sentence than Johnson, vant here. See 520 U.S. at actually imposed. one (holding “where of trial law at time was settled and Brown, In United States 316 F.3d clearly contrary to the law at the time Cir.2003), we noted that appeal enough the error be the federal circuit courts “have not hesitat- —it ‘plain’ at the time of appellate consider- ed to exercise their discretion to correct” ation.”). Thus, in light of the remedial plain errors arising from sentencing where holding in plain. the error is now application “correct of the sentencing Barnett, E.g., likely 398 F.3d at 525-26. laws would significantly reduce the length of the sentence.” Although we did Applying presumption of prejudice not quantify what would a “sig- constitute above, approach outlined prong the third nificant reduction” in length of a sen- test, i.e., plain of the whether the tence, a review of relevant sug- case law plain error affected substantial rights, gests that any almost reduction in the specifically, also satisfied. More very amount of actual incarceration is sufficient possibility real district court to meet E.g., definition. Glover v. may case imposed a lower sen- States, 198, 203, 531 U.S. 121 S.Ct. advisory regime, tence under an Guideline 148 L.Ed.2d 604 (concluding, combined with the near-impossibility of appeal context of from denial of 28 U.S.C. Gonzalez-Huerta demonstrating on the ex- motion, § 2255 any “that amount of actual isting record likely that the district court jail time” resulting from district court’s so, have done presume allows us to misapplication of the Guidelines ... “has prejudiced by Gonzalez-Huerta “was significance” for purposes of assessing imposition of a sentence under the prejudice); United v. Villegas, States Barnett, Guidelines.” 398 F.3d 355, 365, 03-21220, No. 2005 WL Further, nothing there is in the (5th Cir.2005) 627963, at *7 (concluding record that presumption.9 would rebut this that, because district court’s error in- That leaves the fourth plain Guideline-suggested creased sentence error test. Under that prong, we must months, at least five the error seriously exercise our discretion to “correct a fairness, affected the integrity, public forfeited error affecting judicial reputation of proceedings); United ‘seriously fairness, if the error (3d affect[s] Syme, States integrity Cir.2002) or public reputation (reaching similar conclusion Olano, proceedings.’” where district court’s error increased de- (quoting 113 S.Ct. 1770 United States v. guideline fendant’s minimum Atkinson, months); Paladino, seven see also Barnett, 9. Like the Sixth Circuit in I do not specific” aware of "clear and evidence in possibility "discount ... in other indicating the record that the district court cases the evidence in the record will be suffi- imposed would not have a lower sentence presumption prejudice.” cient rebut the advisory guideline regime. under an Id. Here, however, 398 F.3d at 529. am 758 months). (“It than 471, miscarriage Doing is rather 57-71 so

F.3d 482-83 an person illegal sentence in justice give conceivably could have resulted a reduc- punishment”); United increases his up tion Gonzalezr-Huerta’s sentence Smith, 1154, 1160 267 F.3d v. States clearly to six Under established months. (D.C.Cir.2001) (“we have con- no trouble seri- precedent, potential reduction is cluding misapplication that a burden “fairness, enough integri- ous to affect the serving in a proof defendant that results ty public reputation proceed- adversely affects longer sentence See, ings.” e.g., Knight, States v. United integrity judicial pro- of-the fairness and (3d Cir.2001) (“applica- 266 F.3d v. Martinez- ceeding.”); United States guideline result- range tion of incorrect (2d Cir.1998) (“one Rios, 662, 678 143 F.3d in a that is ing sentence also within a more hard-pressed think of would be range rights”); correct affects substantial than injustice deprivation senseless Osuna, v. 189 F.3d United States liberty for several months as a citizen’s (10th Cir.1999) (ordering resentenc- error.”); ... United [an] result cf. where, plain error case dis- ing absent (5th 177, 192 Phipps, v. 319 F.3d States error, trict court’s defendant’s Cir.2003) (refusing plain error correct would have 46-57 guideline range been erroneously long ran where the .sentence months); months rather than 51-63 Unit- sentence); concurrently longer a valid (8th Weaver, v. 161 F.3d ed States Brown, to cor- (refusing 316 F.3d Cir.1998) (rejecting government’s assertion likely operated plain rect error affect that “error did not [defendant’s] favor). defendant’s bеcause ... he rights of the nature of the error Because fell range received within the Guidelines here, impossible quantify pre- it issue applied ... which have would absent sen- cisely how much Gonzalez-Huerta’s error”); Spears, v. 159 F.3d United States might tence have been reduced-had (7th Cir.1998) (remanding in an applied district court the Guidelines juvenile offenses were in- wrongly where because, advisory That is as al- fashion. cluded, resulting wrong history criminal discussed, the en- ready the error affected category: district court looked “[t]he legal applied by tire the dis- framework range wrong sentencing deter- when trict court counsel Gonzalez- when mining have [defendant’s] sentence. We sentenced, Huerta was and thus the record plain determined this to constitute er- .appeal simply adequate to allow on Martinez-Rios, ror.”); v. reasonably us to estimate what sentence (2d Cir.1998) (con- 143 F.3d im- likely the district court that, it cluding although unclear in an posed applied had it correcting error whether would have advisory said, That all fashion. it is not at level, re effect remand was assume, particularly unreasonable quired analysis); under United light of fact that Gonzalez-Huerta was Ford, States very appli- at the sentenced bottom Cir.1996) (holding where district court that, range, cable Guideline had the dis- history miscalculated points “[t]he criminal trict court discre- decided exercise its clearly [defendant’s] affected sub suggested tion and deviate from the points stantial because extra might range, Guideline have done so to be at a [defendant] caused sentenced imposing equivalent to that a sentence severe guideline range”); the more imposed which would have been (51-63 Cabral-Castillo, months next-lower Guideline States (5th Cir.1994) (remanding prong test, sentence where fourth plain of the error there are, view, in my defendant was sentenced under a mistaken least five flaws the majority’s First, reasoning.10 range majority 255 months even the between 188 and sentence, ignores all but prior precedent, our though defendant’s actual and circuits, that of other months, recognizing that for- proper range fell of 151 within the feited sentencing (including errors months); simple States v. Robin (7th Cir.1994) (“A misapplications son, provisions) of Guideline 20 F.3d can, do, fairness, and often the affect in- guideline incorrect sentence based on an tegrity, public reputation judicial pro- affecting constitutes an sub Second, ceedings. relatedly, and the ma- plain stantial and thus constitutes jority (yet fails again) acknowledge the Plaza-Garcia, error.”); dramatic change (1st Cir.1990) (re law 914 F.2d wrought by and suggests instead manding erroneously- both sentence within that “mandatory the district court’s appli- ranges un applied and correct Guideline cation particu- [was of the Guidelines not] plain der error doctrine because sentence larly egregious.” Maj. Op. at 738. Were “may well have been influenced the correct, that I strongly characterization recommendation”). [erroneous] suspect the Court would not now putting Even aside estimates of how vacating judgments the hundreds much Gonzalez-Huerta’s sentence could of criminal pending cases that were before reduced, I reasonably agree have been it on direct review at the time of Booker’s with the Sixth that the revolution- Circuit Moreover, issuance. had the Supreme ary remedial holding, nature Booker’s in agreement Court been with that charac- alone, standing warrants exercise of terization, easily it could have said inso like our discretion in cases Gonzalez-Huer- holding, Booker’s and thereby remedial ob- specifically, ta’s. More conclude “it circuit-by-circuit wrangling viated the fundamentally unfair would be to allow occurring application is now over sentence, imposed un- [Gonzalez-Huerta’s] plain test to non-constitutional Book- regime, der a Guidelines Third, by suggesting er errors. that a in light develop- stand of this substantial imposed sentence within the Guidelines in, of, ment applicable and alteration fairness, implicate integrity, does not Barnett, legal framework.” 398 F.3d at public reputation proceed- (“[A] 530; Crosby, see 397 F.3d at 115 ings, majority give full effect to fails legal sentence error in unreasonable Booker’s opinion, remedial instead the method of is cause for its selection preference pre- demonstrates because, cases, many concern it will be Booker, mandatory regime. Guideline We impossible judge to tell whether fairness, integrity, judge should have imposed the same sentence had the reputation concerns not whether judge not compelled impose felt imposed long-standing sentence was sentence.”). guidelines, whether but rather sen- Although majority imposed concludes that tence satisfies those same con- satisfy changed failed to cerns when reviewed under the has majority suggests position 10. "[i]t "several courts subscribe to the is miscar- appeals collapsed the third and fourth riage person justice give illegal prong analyses.” Op. Maj. at 736. I dis- punishment...." his sentence increases view, agree. my the circuits that have Paladino, 401 F.3d at 482-83. light simply found error in of Booker States, 398 Humphress v. United Fourth, by suggesting that Gonza See law. (6th Cir.2005) satisfy Book- (holding the fourth lez-Huerta cannot within imposed his apply retroactively because does not to initial er effectively Guidelines, majority motions); McReynolds § 2255 v. United discretionary sen usurps States, (7th Cir.2005) the function 479, 481 afforded to district tencing that has been (same); Price, see also United States words, the In other courts Booker. 2005) (10th (holding F.3d 844 Cir. that majority to afford the district refuses retroactively); Blakely apply Bey not does its to exercise opportunity in this case an (10th States, 399 F.3d v. United sentence Gonzalezr-Huerta discretion to 2005) Mar.1, that Booker (holding Cir. view, because, the majority’s in the simply in a could not raised second or succes- be originally imposed Guideline sentence motion). Moreover, in § 2255 sive the impropriety ap of this The reasonable. integrity allegedly preserving name of the succinctly by the outlined proach sentences, majority ef- the of established Hughes, in States v. Fourth Circuit United many fectively perhaps as “condemn[s]” 2005): n. Cir. every one out seven defendants say us enough It is not to cases, including possi- plain-error “set” by the court is imposed sentence district Gonzalez-Huerta, illegal “to an bly serve the error. irrespective reasonable sentence,” i.e., longer a sentence than that de- of reasonableness determination imposed have been which would only not on an evaluation of the pends advisory an district court under Guideline imposed also the actual sentence but Paladino, regime. 484-85. determining employed method it. my agree colleagues cannot who Moreover, declining to notice the resentencing conclude that a remand to performing be tantamount this case “would not advance fairness sentencing function ourselves. This is judicial proceedings” integrity but district never so because the court was likely injure reputation “would more upon under impose called improve the courts it.” Hartz Con- than That the regime. advisory guideline an currence, Specifically, at 1. the concern is imposed might here particular sentence remanding like Gonzalez- say voiced cases is not be reasonable court, resentencing broader Huerta’s for under an adviso- now vested with district discretion, im- not have ry guideline regime could “would serve might posed different sentence from permit district court to deviate simply also have been reasonable. We guidelines in the of an exercise idio- th[e] fairness,” how the district court would do know syncratic personal view had it been have sentenced [defendant] thus would result less uniform sen- operating scheme under remedial tences. Id. I submit concerns run these announced in Booker. in Book- counter the mandate set forth er, i.e., defendants, including afford Fifth, majority suggests although the appeals pending those were on di- whose granting to Gonzalez-Huerta would relief review at the time of Booker’s issu- rect question call into the “tens of thousands ance, the sen- opportunity having imposed federal under the [of] sentences” tencing his discretion judge exercise or her implementation, Guidelines since their advisory guideline regime, sub- there is no that was indication Booker ject appellate abuse of that retroactively, and at review for applied meant stan- expressly two so held. discretion under “reasonableness” least circuits fairness, integ- Judge dard. Does it advance the Briscoe. Because defendants like rity, reputation of the if public courts Gonzalez-Huerta were sentenced under a ignore system we the Booker mandate and remove in which parties and the court very sentencing from the district court the were laboring under a fundamental mis- law, gave difficult, discretion the it? take it is impossible, resulting may That a sentence on remand for us to assess what a district court would may be less “uniform” and deviate from have done in the proper exercise of its prior guideline sentence are not valid discretion. That legal flawed framework concluding reasons for effectively eliminated incentive liti- agree all occurred at gants might should present have had to evidence not. contrary, To objections be corrected. the fact and make that would have been sentencing judge may impose relevant to the exercise of a district court’s argu- different sentence on remand is an regard discretion. With to each of these for, against, considerations, ment rather than I agree Judge with Bris- remand. coe’s dissent. all prongs Because four of the respectfully Where I depart from the case, error test are satisfied in this I would reasoning of majority both the and Judge

remand to court the district for resentenc- premise Briscoe is with the that analyzing ing. whether substantial have been af- by imposed fected a sentence in plain error LUCERO, Judge, dissenting. Circuit turns on who has the burden to demon- join I Judge Part V of Briscoe’s dissent- strate “that the error must have affected ing opinion. my judgement It is the proceed- outcome the district court Court’s remand of pro- for further Fanfan Cotton, ings.” United States v. ceedings precludes approach by the taken 152 L.Ed.2d 860 my colleagues speaking esteemed in the (2002). Briscoe, Judge Like the Sixth Cir- majority. If the had concluded that responded cuit shifting the burden diffi- the fourth of Olano could not be culty by presuming that defendants were met, there would have remained no basis prejudiced by Booker error. United upon which to remand Fanfan’s case for Barnett, States v. 398 F.3d proceedings allowing further govern- (6th Cir.2005) (presuming prejudice be- ment, defendant, and potentially cause “the inherent nature of the error benefit of holding. Booker’s remedial This exceptionally made it difficult for the de- very action saps any the Court intellec- fendant to demonstrate that the outcome vigor tual from majority’s categorical of the lower court proceeding would have preclude decision to exercise of our pru- been different had the error not oc- obligations dential under Booker/Fanfan. curred”). contrast, By majority, like the I agree with the dissent when there the Eleventh Circuit leaves the burden on opportunity was no for the defendant or prove prejudice, defendant to and con- government develop a record rele- cludes that a defendant must lose where it vant to post-Booker discretionary sentenc- is unclear from the record whether he was ing, that even in non-constitutional cases prejudiced. Rodriguez, United States clearly fundamental implicated. fairness is Cir.2005) (“[I]f agree I also analysis with much of the the effect of the error is uncertain so that my which, either, other dissenting colleagues as to the we do not know side it loses.”). third ably expressed by Olano factor as helped the defendant extreme; rather, “plain review” obligation our error neither I would follow full infor- only by availing ourselves of the adopt approach I Second would mation a limited remand to the district ap- That Circuit. and the Seventh Circuit provide. only court Not is a limited would Judge New- was described proach well pragmatic approach, most remand the panel man decision (2d Cir.2005): that it agree Second Circuit Crosby, F.3d 103 power: appellate is within our “since suppose might “Some appellate authority has the to re- court court in a case appellate choice for an resentencing, mand harmless absent impos- error in presenting procedural that does unpreserved ing disregarding is between sentence satisfy analysis, think an plain error requiring the error new sentenc- lesser appellate necessarily has the However, the choice is not so limit- ing. power remand for determination 3742(f) provides: ‘If the ed. Section resentence, re- permit and to whether determines appeals court of that — Crosby, 397 at 117. sentencing.” imposed violation ..., the case law court shall remand taken approach What recommends sentencing proceedings with for further by the is that and Seventh Circuits Second as the court considers such instructions likely recognizes impossibility appropriate.’ ... conclude [W]e based on a record creat- proving prejudice sentencing proceedings’ the ‘further proceeding, ed in pre-Booker sentencing a generally appropriate pre-Book- injustice purport but not to solve that does pending on direct sentences er/Fanfan by the imposing impossibility the same district review will a remand the Rather, it government. leaves the burden court, required of a purpose for the required on the defendant as is lim- only for the more resentencing, but review, permits error but the defendant purpose permitting the sentenc- ited allows the construct a relevant record and to re- ing judge to determine whether weigh the district court the evidence sentence, fully informed the new now of its discretion. Because the exercise so, if sentencing аnd to resen- regime, more the sentencing appropriately court is tence.” venue than is ours to the fact- conduct finding necessary any to evaluate new evi- 117; v. Pala- Id. at see also United States Cir.2005) parties, dence the and is most (“what offered dino, an determining capable light whether indo Booker cases appellate should it this evidence and its new discretion in which it for us determine is difficult sentence, a imposed would have different is, prejudicial whether the was while necessary. remand is retaining jurisdiction appeal, order a sentencing the permit limited remand to A that in court’s determination district (if judge to whether he would determine the have exercise of its discretion would resentence) reimpose required origi- his imposed non-trivially a sentence different sentence.”). nal conclusively original that the demonstrates a developed at trial sentence affects defendant’s Where record rights, thus satisfies the third Olano system operating under a a mistake Moreover, of a district factor. for the reasons stated of law as to the exercise dissent, discretion, a analysis Judge and where Briscoe’s court’s he have im- judge’s no decision that would prejudice on that can be based non-trivially es- posed than we fulfill a different sentence guess, more can educated plaguing origi- range. Although tablishes that the error lines we can infer that fairness, the district court did not impose wish to a seriously nal sentence affects the sentence, higher say cannot whether integrity, public reputation the court would imposed have a lower sen- Conversely, any error in se- proceedings. tence the exercise of its discretion. lecting original sentence would not be Adding uncertainty to that is the fact that if prejudicial court deter- Gonzalez-Huerta any declined to offer mit- remand, reviewing par- mines on after evidence, igating captured by pre- proffers and argument, ties’ of evidence report. apparently He that it would imposed essentially have have done so under the present discretion- advisory same sentence under an Guide- ary regime, as he argue desired to regime. lines presence of a “Fast program Track” opposition, majority complains In jurisdictions other allows defendants there approach collapses that the Second Circuit “to substantially receive lower sentences factors, the third and fourth con- Olano than are juris- available to defendants in trary precedent. (Slip dictions without such program.” Aplt. 16.) (“if op. at these courts find third Supp. Br. at 10. He appeal informs us on satisfied, prong they conclude that that, had his sentencing occurred under fourth is met as a post matter of -Booker sentencing regime, he course”). claim, argued would have majority that the district court is impose a should sentence to lower “reduce mistaken. What occurs “as matter of ” disparity produced by Track.’ ‘Fast course” under limited remand is that Id. Gonzalez-Huerta received a sentence the district court determines that it would very at the bottom of the range, sentence, impose different then there the district court did not evi- longer any no doubt as to whether the dence, before it other than that contained fairness of proceedings seriously PSR, in the presents affected. hold to principle would argument on appeal that he have illegally where defendant is sen- made to influence the district court’s dis- prejudice tenced and established reasons, cretion. For these I would re- district court’s conclusion that it would mand this case so that the district court imposed non-trivially different sen- may, on consideration of additional tence, then our discretion under fourth arguments evidence or that the defendant effectively at an end. The government may proffer, or the determine reasonable conclusion that can follow from whether to resentence in light of Booker. such a state of affairs is that the funda- prop- The division on this court over the integrity mental fairness and of the courts approach er to Booker pending cases di- clearly are implicated. This conclusion rect replicated among review is the various does not “collapse” the third and fourth circuit ranging courts. This wide circuit prongs. split disparate results treatment of

Applying approach to the facts of criminal throughout defendants the nation. case, I would hold that the record justice Such uneven administration of cries before us is ‍​‌​‌​​‌​‌‌​​​‌‌​‌​‌​​​​​‌‌‌‌‌​​​‌​​​‌‌​​‌​​​​​‌​‍insufficient to policy by determine with out for a uniform declaration confidence Court. whether Gonzalez-Huerta was prejudiced by the plainly district court’s application

erroneous of the Sentencing

Guidelines. Gonzalez-Huerta was sen-

tenced at very bottom of the Guide-

Case Details

Case Name: United States v. Gonzalez-Huerta

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Apr 8, 2005

Citation: 403 F.3d 727

Docket Number: 04-2045

Court Abbreviation: 10th Cir.