United States v. Louis F. Pirani

bankruptcy court permis courts, also diction to state Congress explicitly sibly upon relied the settled nature of the declined to create right adjudication in declining reopen estate Apex’s bank Chapter 11 issues in bankruptcy court in case. The act ruptcy reopening a closed short, all instances. In agree bankruptcy case typically is ministerial courts that have found that a debtor’s de presents issues, a limited range of adjudicate sire to an issue bankruptcy including whether further court, administration rather than forum, an alternative of the estate appears to be warranted.9 constitutes grounds insufficient on which (In Specialty Lopez Corp. Restaurants reopen a bankruptcy case. E.g., In re 22, Lopez), re 283 B.R. BAP Dabbs, Cir. (Bankr.N.D.Ala. 72 B.R. 2002). bankruptcy Given the court’s un 1987); Carter, In re 38 B.R. disputed findings that the estate had (Bankr.D.Conn.1984). been fully administered and that the outcome of The judgment is affirmed. class action would have no adverse affect on the estate or Apex’s for creditors,

mer no further administration of appears estate necessary. to be

Finally, we note that longer “[t]he time between the closing of the estate

and the reopen motion to ... the more

compelling the reason for reopening the America, UNITED STATES of Case,

estate should be.” In re 937 F.2d at Appellee, 1018. We no find error in Plaintiff — bankruptcy court’s ruling Apex did present compelling reason to reopen its bankrupt PIRANI, Louis F. Defendant— cy case more than years seven after was Appellant.

closed. No. 03-2871. Apex protests adjudication state court will deprive it of the fresh Appeals, Court of start which the 1990 bankruptcy entitles Eighth Circuit. it, right and that adjudi its as a debtor to cate dischargeability bankrupt issue Submitted: March 2005. cy court respected. should be We dis Filed: April agree. Apex’s fresh start is effected through the enforcement of the plan injunction; its discharge the state fully

court competent to determine

whether the plan injunction apply

to the appellees’ addition, claims. as

evidenced grant juris- its of concurrent decline, do, case, 9. We Apex urges as us to to view but in fact We denied motion. fur- note, reopen the district court’s deciding, decision case ther without that if the bank- adjudicating as an ruptcy abstention from the under- court's were decision characterized abstention, lying dischargeability issue. The district likely jurisdic- We would lack making here did not from Apex's appeal. abstain tion to hear See 28 U.S.C. 1334(d). reopen Apex’sbankruptcy decision whether to Perroni, Little argued, Arnold

Samuel brief), James, (Patrick on the Rock, R. AR Defendant-Appellant. Dreeben, Little argued, Michael R. Coleman, (Karen Attor- D. Rock, AR Office, Rock, AR, ney’s brief), Little on the mentary evidence that Pirani had an inter- Plaintiff-Appellee. crafts, est in both he was charged with two making counts of materially false state- LOKEN, Judge, Before Chief ments to federal investigators in violation HEANEY, WOLLMAN, MORRIS 1001(a). § of 18 trial, U.S.C. After a ARNOLD, MURPHY, BYE, SHEPPARD jury convicted him of both counts. RILEY, MELLOI, SMITH, COLLOTON, At sentencing, the district court2 app BENTON, GRUENDER Circuit then-mandatory lied Judges, banc. en Guidelines, Sentencing using the Novem 1, 2000, ber Guidelines in effect when Pira- LOKEN, Judge. Chief ni’s offenses were committed. Pirani ar case, In this apply Supreme gued that his total offense level should be recent Court’s decision in United 6, the base offense level under U.S.S.G. U.S. -, 160 § (2000), 2F1.1 governed which most (2005), L.Ed.2d 621 to a sentencing error fraud convictions. The court defendant Louis F. Pirani failed found, however, adjustments that upward, preserve in the district Having court. for the amount ($114,000), of loss more carefully the divergent analyses considered than minimal planning, and obstruction of circuits, of our sister we follow decisions of justice would increase the total offense First, Fifth, the and Eleventh in circuits1 § level under 2F1.1 producing holding that a remand for resentencing is guidelines sentencing range of 21 to 27 required unless the defendant meets prison, in months a range the court consid his burden to demonstrate error ered high” “too for Pirani’s offenses. The prejudice under controlling Supreme court further found that “defendant’s con precedents, is, Court that a “reasonable trial, duct as at established which consist that, probability” district court would ed of false giving to agents statements of imposed a more favorable sentence and knowing FBI IRS they that were under, advisory sentencing guidelines conducting an investigation,” established regime by mandated Booker. As Pirani § of 18 violation U.S.C. 1505. Application burden, has not met that we affirm. § stated, note 14 to 2F1.1 “Where the indictment or forth setting information Background I. count ... of conviction establishes an of During a investigation federal into alle- fense more aptly by covered another gations County deputy Crittenden guideline, apply guideline rather than sheriffs stealing money were § seized at 2F1.1.” The court invoked this cross ref drug points, interdiction FBI' and IRS erence and assessed Pirani total offense agents deputy former interviewed Louis F. '§ level of under (2000), 2J1.2 U.S.S.G. Pirani. Pirani an denied ownership inter- justice obstruction of provision govern in a est ski boat an airplane, and ing assets the § violations of 18 1505. U.S.C. That investigators doubted he could produced afford a guidelines sentencing range of based on legitimate his sources of income. 10 to 16 months in prison. The court the investigation When doeu- imposed uncovered a ten-month “split” sentence and United States v. Antonakopoulos, 1. F.3d 2. The HONORABLE SUSAN WEBBER (1st Cir.2005); Mares, United States v. WRIGHT, Judge, Chief States United District 511(5th Cir.2005); Arkansas, v. Rod- Court for the of District Eastern. (11th Cir.2005). riguez, 398 F.3d 1291 to sever power Then, invoking its prison months five into unconsti- statute that render provisions See U.S.S.G. home detention. five months excised” tutional, “severed Court (2000). § 5C1.1 Reform Sentencing of provisions two and sen conviction his appealed Pirani 3553(b)(1), the § 18 U.S.C. Act of 1984: court committed tence, arguing manda- Guidelines made the provision and erred trial evidentiary errors 3742(e), provi- § and 18 U.S.C. tory; offense his to determine § 2J1.2 applying re- appellate of establishing standards sion Af mandatory Guidelines. level under 2003, “make which, as revised view court, of this panel to a argument ter oral mandato- sentencing even more Guidelines its decision Court issued Supreme at 765. 125 S.Ct. had been.” than it ry — U.S. -, Washington, Blakely v. (assuming no remedy this The effect (2004). Pirani L.Ed.2d Congress) is by legislation responsive re-sentenc case for his to remand moved sen- in which system advisory Guidelines violated the district ing, arguing to “take account continue tencing judges Blakely rights under Amendment his Sixth other together [the] the Guidelines charged and conduct finding that his by in 18 U.S.C. enumerated sentencing goals” the elements satisfied at trial proved review sen- 3553(a), appeal and courts § affirmed panel The justice. obstruction “unreasonableness.” tences that use concluded Pirani’s conviction 764-66. his violated cross-reference 2F1.1 mandated advisory Guidelines jury trial right Amendment Sixth sentencings, to all federal apply Booker requiring remand subject to defendant whether or vacated en banc court resentencing. triggered the enhancements one of rehearing granted opinion and panel’s that invalidat- issues the Sixth Amendment issued Supreme Court After en banc. regime. mandatory Guidelines ed the Booker, sup requested we in its decision pro- that this confirmed Booker Court issue “whether on the briefing plemental sentencing applies in federal change found er sentencing court committed the district In appeal. direct now on to all cases so, ], if whether light [Booker ror in cases diverse determining how these under warranting relief error plain it is resolved, provided the Court be should 725, Olano, 507 U.S. ... States United ap- the courts to guidance significant 1770, 508 123 L.Ed.2d 732-37, 113 S.Ct. peals: (1993).” to applies rule this new fact [The not does review] on direct pending cases Sentencing Issues

II. every sen- we mean that believe applied Court Supreme Amendment rise to Sixth gives tence principle every Amendment the core Sixth do believe that Nor we violation. under imposed Blakely enhancements a new lead to appeal will Sentencing Guide- re- mandatory expect federal we That is hearing. because (other con- prior ordinary pruden- than a “[a]ny apply fact viewing courts lines— example, viction) support doctrines, necessary determining, tial which author- raised below maximum the issue was exceeding whether sentence test. “plain-error” by plea it fails the whether facts by established ized involving because, cases admitted It is also must be jury verdict guilty or a violation, whether Amendment jury a Sixth be- to a proved or by the defendant or whether resentencing is warranted at S.Ct. doubt.” yond a reasonable review, will instead be sufficient to B. for unreasonableness de- An by court, error the trial even

pend upon application of the harmless- affecting one right, constitutional is for error doctrine. is, feited —that preserved for appeal— “by the timely failure make assertion of 125 S.Ct. at 769. turning Before right.” Olano, United States v. question error, of plain we must consider 725, 731, U.S. 113 S.Ct. 123 L.Ed.2d preliminary two by issues raised Pirani— (1993). preserve To an error for ap whether the misapplied district court pellate review, objection timely must be then-mandatory Guidelines, an issue that and must “clearly grounds stat[e] the important is still because the statute as objection.” Williams, excised “requires judges Booker to take Cir.1993); Fed. account of together the Guidelines 51(b). R.Crim.P. Errors not properly pre other sentencing goals,” 764; served are only reviewed for plain error preserved whether Pirani the issue of 52(b) under Rule of the Federal Rules of Booker court, error in the district so that Procedure, Criminal as construed in' Olano error doctrine not apply. does and its progeny. The plain error principle applies when, here, even as the error re ’ A. sults from a change in the law that oc curred while the case was pending on ap Pirani argues that the district court peal. States, See Johnson v. United misapplied the cross reference U.S.S.G. 461, 467-68, 2F1.1(2000) § because, his conduct while (1997). L.Ed.2d 718 proved as might trial have constituted a argues Pirani that the § violation of 18 U.S.C. the indict doctrine does not apply this case be ment did not establish that his offense was cause preserved he his claim Booker when aptly more 2J1.2, covered U.S.S.G. h'e “raised legal numerous and factual ob application 14 required. note Like the jections in the district court Presen- court, disagree. The two tence Report, challenging proposed question counts in did not allege expressly application of various sentencing enhance justice obstruction of or a violation of ments, including the cross reference.” § 1505. But alleged, the facts including However, objections these allege did not those incorporated count, from prior Booker Booker changed legal errors. charged Pirani with making false state significance of a Guidelines enhance ments to FBI agents and during IRS mandatory ment —from to advisory—not course of a government investigation at a whether a particular facts of case Pirani, time when himself in' law enforce make the applicable. enhancement In this ment, knew the investigation. of In these regard, we agree with the First Circuit: circumstances, the district court did not argument “The that a Booker error oc clearly in finding err that the indicthient curred is preserved if the defendant below established an offense aptly more covered argued Apprendi Blakely or error or that guideline, another invoking the cross the Guidelines were unconstitutional.” 2F1.1, §in reference and Pira United States v. Antonakopoulos, 399 ni accordance with 2J1.2. Accord 76; F.3d at Sayre, see United v. States Kurtz, (2d United States v. (8th 237 F.3d 154 Cir.2005) (Gruen F.3d.599, 400 602 .2001). Cir der, J., concurring).

055 1770, 856, 732-36, 113 as articulated Coffey, F.3d S.Ct. v. 395 States Johnson, 466-67, 520 at 117 S.Ct. (8th Cir.2005), grant U.S. reh’g en banc 860-61 1, 2005), 1544: ed, (Apr. Nos. 04-2176/2247 objection at an an of this court held an court can correct

panel appellate before sufficiency govern trial, of sentencing to error not raised at there must be (3) (1) error, (2) was suffi drug quantity plain, of and ment’s evidence that is claim of Booker error If rights. cient all three preserve affects substantial met, followed panels have an court appeal. appellate Other are conditions v. Selwyn, notice ruling. this See United its discretion to then exercise (8th Cir.2005); (4) error, only 1066-67 if a forfeited the error Sdoulam, fairness, F.3d seriously integrity, v. United States affects Fox, Cir.2005); proceed- judicial or of public reputation (8th Cir.2005). 1018, 1026-27 ings. contrary this court’s These decisions are proving of defendant has burden that a suffi en banc decision unanimous error, government has whereas the objection preserve not ciency-of-proof did proving harmless error. burden Apprendi a claim of error. United States Olano, 734-35, at 113 S.Ct. 1770. U.S. Diaz, 683 n. 4 Cir. plain-error under the “Appellate review 2002). are the extent these decisions To doctrine, course, is circumscribed they are opinion, this inconsistent with 52(b) power our under Rule exercise controlling precedent.3 States, v. United sparingly.” Jones 373, 389, 2090, 144 U.S. L.Ed.2d he argues pre Pirani further (1999). at claim Booker error sen served his stated, in attorney argu tencing when his It undisputed is the first ing impose court should not two- that the two are Olano factors satisfied here. than minimal level enhancement for more (understandably) committed sending talk planning, you “when about applying error the Guidelines as Booker is, I the burden of people prison, believe mandatory, plain, the error is beyond a reasonable proof obvious, should be clear or time. this “[W]here Many urged doubt.” defendants at the law time trial was settled adopt courts to this strict standard of at the clearly contrary law time mandatory proof applying Guide appeal—it be enough that couple lines. Because Pirani did not this ‘plain’ appellate at the time of consider to Ap Johnson, with a reference specific statement ation.” prendi Blakely or or the Sixth Amend 1544. The crux of the inter-circuit ment, very differ preserve he did application conflict in the comes question of district court ent whether the and fourth third Olano factors—whether construing in Booker the committed error the Booker error affected the defendant’s mandatory invoking when Guidelines in a rights” “substantial manner that “seri Thus, fairness, the we integrity, cross-reference 2J1.2. affects or ously the judicial question plain public reputation proceedings.” review this error. C. 1. thorough governed opin-

Plain error review is The Fourth Circuit in a Olano, in by four-part pending appeals the at ion concluded that all test of government’s rehearing Coffey. granted petition We in 3. have the en banc which the district court committed Sixth Amendment would not implicated be “if by Amendment error a manda imposing- the Guidelines as currently written could tory, judge-found guidelines enhancement be read as merely advisory provisions that must remanded be because of plain Booker recommended, rather than required, the e rror. Hughes, United States v. 401 selection particular sentences in re (4th Cir.2005). F.3d 540 Noting that “the sponse to differing sets of facts.” 125 proper focus” of prejudice the error (Stevens, J., Court); for the is on what inquiry happened at origi the accord 125 J., S.Ct. at 764 (Breyer, for the nal sentencing proceeding, might not what Court). happen remand, on the court criticized In

contrary deciding decisions other circuits for whether a defendant has considering satisfied remedy third factor, mandated in Olano the. we Booker approach agree because that with “would es Circuit Fourth sentially require to disregard prejudice us inquiry Sixth focuses what sentence error altogether.” Amendment Id. at have imposed would been absent the error. 551. Having defined the Booker error in But the error as defined Booker can be fashion, this the court concluded excised in two different ways, by either rights defendant’s were substantially af limiting enhancements in a mandatory fected if an enhancement increased the guidelines regime to those consistent with mandatory sentence, Guidelines and that verdict, the jury byor retaining enhance satisfied the fourth Olano factor because ments upon based judge-found facts but the defendant was sentenced a longer applying them in an advisory guidelines prison term than “the maximum sentence regime.4 If the Court in Booker had jury authorized verdict.” Id. at portions excised of the Sentencing Reform 555. The Sixth Circuit and the Ninth Act, the option latter would not be avail adopted Circuit have approaches similar able. But the Court modify did stat error issue. See ute, meaning that the district court could Oliver, (6th States v. 379-80 have avoided Booker by declaring error Cir.2005); Ameline, United States v. 400 the Guidelines advisory (contrary to the Cir.2005), reh’g en plain meaning of the time), statute at that granted, banc 401 F.3d 1007 Cir. guidelines determining sentencing 2005). range in the manner we now upheld, circuits, most and then imposing Like other .disagree we “reasonable” sen with the Fourth circumstances, Circuit’s tence. In these agree definition plain- First, Second, Fifth, Seventh, error issue. The Booker merely of a Eleventh enhancement sen- Circuits that the third fac Olano tence on the judge-found tor basis turns facts. on whether Pirani has demon The constitutional error from strated a arose reasonable probability that he combination of the enhancement and a would have received a more favorable sen mandatory regime. Guidelines tence with the Booker error eliminated every Justice agreed that the Sixth making the advisory.5 Guidelines As Nothing suggests Booker standard; derance evidence accord Mares, judges required are to find 402 F.3d at sentence-enhanc- 519 & n. 6. ing beyond facts a reasonable under doubt the 75; Antonakopoulos, 5. See F.3d at United 399 advisory regime. Guidelines See U.S.S.G. Williams, 450, States v. 399 F.3d n. 12 459 & 6A1.3, comment., prescribing prepon- the (2d Cir.2005); Mares, 521; 402 F.3d at United 552 error); (2002) (Apprendi 860 v. L.Ed.2d States in United explained Judge Posner 55, Vonn, 535 122 U.S. v. is States United [Hughes ] overlooked

Paladino, “what (2002); 90 John 1043, the 152 L.Ed.2d imposed have S.Ct. would judge if the 461, 467, 117 States, 520 U.S. thought had v. United he if son even sentence same (1997). (in The 718 1544, event L.Ed.2d advisory which 137 merely guidelines “plain- Amend said that repeatedly no Sixth has have been Court would there would be discretion is violation), sentence and the error review ment 63, Vonn, at regime, there 535 U.S. post-Booker reviewing court.” under lawful violating to defendant.” In addition to the prejudice 122 S.Ct. 1043. is no Cir.2005). (7th plain error delegating 471, principle, F.3d this district courts question prejudice has modified Circuit Second to re Congress to the intent contrary by remand- inquiry error plain prescribed expanding sentencing disparity duce the district cases to error ing Booker Thus, Fifth like the Cir review. appellate the circum- “consider, on based to courts Circuit, reject we Eleventh and the cuit original sen- time of at the stances contrary as approach remand limited resentence, after consid- tence, whether court appellate as an obligation to our statutory currently applicable ering the factors fourth Olano the third apply in Booker.” explicated requirements appeal. record on existing upon based 103, 120 Crosby, 397 F.3d v. States United 522; Rodriguez, Mares, See has Cir.2005). Circuit (2d The Seventh F.3d 1304-06. it re- except approach, adopted this until jurisdiction tains instruct Court has Supreme he [whether] remand limited “states prejudice plain error proving ed imposed different would “demand[s] easy” and not be too “should merely were guidelines he known had Benitez, relief.” get strenuous exertion Paladino, at 484. advisory.” like the Accordingly, 2340. S.Ct. at creative, that this conclude we Though circuits, we hold Fifth, First, Eleventh Court’s Supreme violates approach whether may consider that, before appeals courts Booker that command the fourth under discretion our exercise doctrines,” in prudential “ordinary apply Booker forfeited review factor Olano test.” ‘plain-error’ cluding “the must show “reason error, the defendant added). times Four (emphasis at 769 appellate on the based probability,” able nearly unani or a unanimous years, recent error he whole, for the as a record applied has Court Supreme mous more sen favorable have received would concluded test of Olano error tence. not be reviewed would unpreserved not affect substantial did it either because the fair seriously affect or did not rights factor, third Olano addressing the judi reputation ness, public or integrity, amicus brief and supplemental Pirani’s v. Beni States United cial proceedings. simply ar- support in his submitted briefs tez, 74, 124 S.Ct. the Booker which cases in that all gue (2004); United States Cot L.Ed.2d viola- Amendment a Sixth included 152 error 625, 122 S.Ct. ton, 535 U.S. Cir.2005). 1299-1306 Paladino, F.3d 483-84 Rodriguez, 398 Cir.2005); States v. tion should be remanded under error cised its in a discretion manner favorable reject review. that We contention because Pirani satisfying the ten-month sen- misperceives the nature of Booker error. in part tence with home confinement. All imposed by sentences a district court Pirani was convicted of an offense re- mistakenly (though that understandably) flecting a serious breach of duty by a believed the mandatory Guidelines be public official sworn to uphold and enforce contain Booker error. the result Whether the law. Nothing in the suggests record ing sentence included what Pirani calls a probability reasonable that violation, is, Sixth Amendment that an en court would have imposed hancement upon judge-found facts, based more lenient sentence plain'error prejudice absent Booker error.6 inqui In these affect ry. not, itself, But it does circumstances, establish a Pirani has not carried his that, probability reasonable but for Booker burden of demonstrating prejudicial plain error, the defendant would have received a error under Olano. As the Eleventh Cir- more favorable under an advisory cuit said in Rodriguez, “where the effect of guidelines regime. question That is inher the error on the result in the district court ently more fact specific. See Antonako is uncertain or indeterminate —where we poulos, 399 F.3d at 80-81. would have to speculate appellant has —the not met his burden of showing a

Pirani’s reason- arg-ue brief does not able probability that the the district court result would would have have imposed a been more favorable different but for sentence under the adviso the error.” ry guidelines regime F.3d at by Booker. 1301. mandated event, appeal record would Because Pirani has failed to establish not support this contention. The sentence e reasonabl probability of prejudice, we imposed was at the bottom of the obstruc need not consider the fourth factor, Olano tion-of-justice guidelines range. But sen whether to our exercise discretion to re tencing at the bottom range is the view a plain error because it “seriously for many judges, norm insufficient, so it i's fairness, affects the integrity, or public more, without to demonstrate a reasonable reputation judicial proceedings.” John probability that the court' would im have son, 520 U.S. at 117 S.Ct. 1544. In a posed a lesser sentence absent the Booker cases, number of we have granted plain Here, error. the district court applied the error review when district court ap 2J1.2, § cross-reference to U.S.S.G. which plied the wrong mandatory guidelines avoided 2F1.1 enhancements that would range because of clerical or other errors. produced a mandatory guidelines Warren, See United States sentence the court high.” considered “too Cir.2004); The court then its exercised discretion to Weaver, Cir.1998); F.3d impose sentence, minimum noting that Comstock, were United States v. “[t]here factors weighed against (8th Cir.1998). imposing sentence, minimum but the These decisions reflect Court believes that the proper fairness, minimum sentence concern integrity, is appropriate.”. The court further exer- public reputation judicial proeeed- During lengthy sentencing hearing, prejudice if the district court had expressed district court twice opined her dislike of produced by the sentence the Guidelines. But surprising is not mandatory Guidelines was unreasonable. A given' complexity applying the Guide- general court's dislike of the Guidelines in lines in this case. It would be relevant to not relevant. a ser- asked Graham exam, prosecutor the a defen- when seriously affected ings are be- question Each questions. nine- ies of prison time in additional spend must dant of Louis Pirani’s opinion your gan, “Would Accord illegal sentence. of an on account you if change for truthfulness (“It reputation is miscar- a Paladino, at 483 of various instances knew,” ended with and give to remand] [justifying justice of riage gov- in the addressed alleged misconduct that increases illegal sentence an person a not did chief. Pirani case in ernment’s an to just as it is convict his punishment, ar- trial but at questions object these person”). innocent appeal. on plain error gues hand, pres error, on other the A Booker er plain that it argues first Pirani If the mandato situation. a different ents to ask these the prosecutor ror allow the applied, properly were ry guidelines one particularly questions, guilt-assuming the advi under illegal not is itself the of guilty he was which assumed Booker, only the regime mandated sory of courts A number charged offenses. arriving in court used the district process that questions prosecutor have condemned circumstances, In these at sentence. the offense guilt of defendant’s assume the akin seems more inquiry fourth-factor contrary to the accused’s being tried Cotton, the Su where v. States to United See United of innocence. presumption its discre to exercise Court refused preme Guzman, error- Apprendi to review tion Cir.1999). questions issue But the in drug quantity charge failure the last Only plain error. not here were petit to the issue submit that dictment charge obliquely referenced even real threat “[t]he jury —because owning air an lied about knowingly Pirani reputation ‘fairness, public integrity, and an offi during to federal authorities craft respon ifbe would judicial proceedings’ investigation: cial un- overwhelming and dents, despite in Louis Pira- they your opinion of Q. were Would evidence controverted if change truthfulness were drug conspiracy, reputation ni’s vast volved said that Pirani has for those that Louis you knew prescribed a sentence receive he, brother, was the sole owner drug offenses not his committing less substantial rec- object Pirani’s own airplane was never an [when] an error that because $9,300 in cash 634, 122 paid that he ords show 535 U.S. at trial.” ed to half of the counting his possi not Thus, plane, not foreclose do er payment? be Booker down bility that there Olano factor meet the third rors abstract, phrased question fourth. See audience, time, or mention of without Cir.2005). Bruce, 719-20 It takes alleged statement. for the place of a fact a hypothetical, form of Issues III. Conviction an- Graham’s prosecution. known to I that until swer, allegations are “These error stem of trial Pirani’s claims me that that convinced something receive cross-ex government’s from primarily up,” truthful, add just doesn’t they were Gra Linda witness of defense amination presumption consistent exam, as was opined Graham direct ham. On the truth properly left in innocence truthfulness reputation for to Pirani’s jury. by the determined the matter be buttressing her opinion community, practice, not endorse the do While we good “was son knew her stating that she to this objection timely suspect Pirani. On cross was with when he hands” sustained, searched, but had no reason to question would been be con- cerned. We review the issue was forfeited at trial does district court’s fairness, evidentiary integrity, rulings on the .or clear abuse of dis- cast doubt cretion. See judicial United States v. Montano- public reputation proceed- of that Gudino, 501, (8th Cir.2002). 309 F.3d ing. argues Pirani first that the evidence was argues Pirani further that the dis because, taped irrelevant while the conver- error in allow plain trict court committed sation tended to show knew of Graham, he ing question prosecutor investigation, that fact an was not element witness, her of reputation opinion about offense, charged of the unlawful mak- character. The contention is Pirani’s ing false of statements. Like district premise. false de Although based on a court, disagree. To meet its burden of questions fense counsel asked have proof, government prove had to general reputation, Gra about Pirani’s knowingly Pirani made a false material opinion ham’s answers offered her of Pira- minimum, statement. At a the recorded ni’s she trust to character—someone could prove conversation tended to that Pirani take care of her son. When accused knew his false statements to the interview- trait, of offers evidence a character agents government ing were material to a government may with rebut cross exami investigation. in inquiring specific nation into “relevant stances conduct.” Fed.R.Evid. argues Pirani tape next that the 404(a)(1), 405(a); v. see United States have pro should been excluded because its (8th Monteleone, 1086, Cir. substantially outweighed bative value was 1996). acknowledges Pirani this principle prejudice. the risk of unfair See Fed. failing but criticizes the district court for tape R.Evid. 403. The includes Pirani and preliminary pro to conduct sidebar or expressively others swearing during a ca ceeding prosecutor to be sure the had a officers, among sual conversation culminat sufficient factual for the misconduct basis in ing Pirani’s declaration that he had no implied questions. or assumed in the We to worry investigation. reason about the urged of this in procedure use profane We doubt Pirani’s bravado came Krapp, States v. surprise jury, as a much less colored Cir.1987). However, in United its view he had committed whether Bruguier, 161 F.3d 1149-50 Cir. event, charged. offenses the pro 1998), plain failing there was no error in fanities did not create a risk unfair employ questions it because the dealt with prejudice substantially outweighed government’s in the events addressed tape’s probative value! There was no case-in-chief, and we have no reason abuse the district court’s substantial think that fac government counsel had no evidentiary discretion. implied tual basis for his assertions. judgment district AFFIRMED. Let this court’s mandate Finally, argues Pirani that the forthwith. issue district court discretion abused its when tape-recorded admitted into evidence HEANEY, Judge, dissenting. Circuit in conversation which Pirani to a stated cooperating officer that he had read about This is not a error case—one investigation newspaper, preserve knew which defendant failed to questioned had officers who been Sixth Amendment error.7 case, Judge Bye's If this were a error I would without reservation in concur 55 structing 18 U.S.C. justice, violation of

Rather, preserved here the defendant indictment, way objections lodged he in the even were It that under court. follows though substantive crime was not — -, 24-25.) (Id. Pirani charged.9 main- (2005), we 160 L.Ed.2d have convict- tained that he could not been to remand this no alternative but justice on the ed of obstruction of based resentencing regime under a matter (Id. 30.) facts the indictment. muster. constitutional passes court determined it would use then cross-reference, justice obstruction of Pirani, F. Crittenden former Louis objections pre- that “all are and stated Deputy, charged was with County Sheriffs (Id. appeal.” of at purposes served for false statements making of and convicted 33.) objection to investi- Pirani then reiterated his to who were federal authorities8 deputies being as if he were convicted of gating allegations that Crittenden sentenced money per- jus- keeping drug for of obstruction of were seized the substantive crime Sentencing tice, sonal use. The United States that specifically arguing “the elements (hereinafter Guidelines) (Id. man- Guidelines § met.” at not been [of 1505] of 6 false 35.) a base offense level for dated convictions. Guidelines statement sentencing pro- point another in the At provision contained a cross-reference also ceeding, pondering the district court was apply court to required application of certain en- sentence another, if higher guideline offense level that, acknowledged hancements. Pirani aptly facts of the crime more fit anoth- Guidelines, pursuant to facts er Based on the adduced guideline. required use preponder- court was to (but proven jury), at trial to in determin- ance-of-the-evidence standard district court determined Pirani’s ing predicate the factual for enhance- akin statement conviction was more

false the court to ments. He nonetheless asked Thus, justice. to employing obstruction of beyond-a-reasonable-doubt employ the provision, the cross-reference the district any standard for determinations applied justice the obstruction of prison imposition in the would result level of 12 and effective- Guidelines offense (Id. 21.) sentence. ly sentencing range Pirani’s increased from to 6 months to 10 to months. consistently This court has held that a preserves defendant his Sixth Amendment there dis- sentencing, At was extended by objecting for issue review factual cussion of whether cross-reference to predicate Guidelines enhancements. justice guideline proper. obstruction of Coffey, In United States v. 395 F.3d 856 First, objected Pirani to the district court (8th Cir.2005), the convicted defendant was justice sentencing him for obstruction of conspiracy possess or distribute alleged in the because crime was not (Sent. 16-17.) grams intent to distribute 50 or more indictment. Tr. at government stating presentence report crack. His recom- responded by (and increasing necessary to convict Pirani of ob- mended his offense level facts thoughtful alleged clear in the but dissent. that facts indictment proven jury beyond a reasonable 1001(a). 8. 18 U.S.C. support doubt are not sufficient guidelines mandatory enhancement under a course, argument post- 9. would Of this fail Booker, system. See Supreme Court has now made thus, mandatory his sentencing range) ifas Guidelines offense level based on a drug responsible he were for 2.7 kilograms of higher amount than jury finding, and jury crack. The did not find him responsi- the defendant objected. Our court re- higher amount, ble for this did nor he manded the ease for resentencing “be- admit responsibility objected He it. cause Fellers raised this issue at sentenc- presentence report’s drug quantity cal- ing,” id. at but provided no further culation, arguing that “there was insuffi- elucidation on the objection. nature his cient evidence to calculate quantity of United States v. Selwyn, drugs for his F.3d 1064 offense.” Id. at 859. We (8th Cir.2005), held that objection this sufficiently States v. Sdou pre- lam, served the issue for F.3d 981 appellate Cir.2005), review. Id. followed at 861. with similar results. The defendant Selwyn was offense, convicted a drug Fox,

In United States v. 396 F.3d 1018 drug “[n]o quantity was stated in the Cir.2005), the defendant was convict- indictment or found by jury.” the Selwyn, ed of conspiracy to distribute metham- 398 F.3d at 1066. objected He phetamine. to The the jury found him basis responsi- for the ble for drug between 50 grams quantity and 500 court’s find methamphetamine, ings, presentence but the which we held preserved the Sixth report attributed roughly kilograms 1.8 to Amendment issue for appeal. Id. at 1067. him. He objection “filed an to Sdoulam, this rec- In a defendant convicted of two ommendation and argued objection methamphetamine-related object offenses during the sentencing hearing before the ed to the district court’s calculation of district court.” Id. at 1026. The Fox pseudoephedrine .quantity. Citing Coffey court did question not the specificity of Fox, and the court case remanded the objection,10 defendant’s nor did it cite resentencing, noting that the “circuit has to Coffey.11 Nonetheless, it found that held that when a objects defendant ato objection defendant’s quantity District Court’s determination of drug “preserved determination this sentencing quantity at sentencing, pre defendant issue, pursuant and to defen- [the serves Booker-based challenge to his is dant] entitled to a new sentencing pro- sentence and is to a entitled new sentenc Fox, ceeding.” 396 F.3d at 1027. Similar- ing Sdoulam, proceeding.” 398 F.3d at in ly, Fellers, States United v. 995. (8th 1090 Cir.2005), the defendant was guilty found majority The conspiracy disregards to now distribute Iwhat and possess and with intent to several other judges distribute be- on the believe court tween 50 and 500 grams of to methamphet- circuit, be settled in law this and asserts amine. Again, presentence report that cases such Coffey and Fox are , suggested increasing defendant’s “inconsistent with” a footnote in United 10. Although not appellate true, contained in the Ante at technically 550. This is but decision, a review of the district court misinterpreted. be Coffey, Fox followed sentencing transcript in Fox reveals that the Coffey. sense issued after objected defendant to use preponder- Fox, however, Nothing suggests that the drug ance-of-the-evidence quan- standard for indeed, Coffey; decision was based on there is tity questioned determinations and the veraci- single Coffey not a any citation to or other ty of the supporting drug witnesses quantity (save itself) case support Booker of the Fox larger jury's finding. than the panel's preservation-of-error analysis. majority The states that the and Fox other panels have “followed” Coffey. the decision in the crime the elements all prove not 4n. Diaz, F.3d States the indictment. listed in not “they are (en banc), thus Cir.2002) (second empha- Diaz, n. This F.3d at 683 at 550. Ante controlling precedent.” added). The sis surprise. of a as somewhat comes our government the state of alter that the Obviously, can a claim court en banc decisions, of an the elements proving prior failed overturn has law circuit than a defen- different quite to is a footnote offense rely on not ought Drug his sentence. challenge dant’s this. accomplish “element of is not an typically quantity held Diaz majority contends required is government that the crime” did objection sufficiency-of-proof “a in Diaz. not one and was jury, ato prove error.” Apprendi a claim preserve Serrano-Lopez, See, e.g., Diaz, at 683 n. (citing Cir.2004) (“It at 550 is Ante charged were 4). Diaz, indictment, defendants sets the statute, not the re prov- offenses of several that must be offense and convicted elements did As we jury doubt. conspiracy. a reasonable drug beyond to a en lated not such drug quantity drug quantity, explained, findings as make can quantity unless an element the defen court sentenced yet the district of a sentence imposition lead does statu beyond the that were terms dants stat- applicable otherwise than the greater maximum,12 which defendants tory Diaz, maximum.”); F.3d 680 utory rule Apprendi’s violated contended at 2001 available (2002), Br. at Gov’t a penalty for the that increases “any fact no there was (affirming that 34096384 WL statutory prescribed beyond the crime drug quantity to respect finding with jury jury, a be submitted must maximum case). Thus, appellate the when in Diaz’s Ap doubt.” a reasonable beyond proved chal- as a objection Diaz’s described court 466, 490, Jersey, U.S. v. New prendi regarding proof government’s to the lenge (2000). L.Ed.2d 120 S.Ct. offense, objection his the the elements of their not raise did the defendants Because in- must the district before dis the claims before Amendment Sixth the Sixth from different a matter volved was limited court, court’s review our trict ap- pursued on argument he Amendment had that he Diaz asserted error. in dis- the was rooted as that peal, issue court, district the before issue raised findings. Foot- drug quantity court’s trict disagreed: our court in a footnote not broad does stand 4 in Diaz note raise in fact that he contends did Diaz Sixth Amend- preserving on prohibition district court ob- way before the of an issues claims sentencing Apprendi ment de entitling him to sen- proof thus at government’s sentencing, jection however, that us, cited appears to It been tencing. It has review. novo other, and in circuit or in district court our proposition his contention that to- as such majority’s characterization claim, but Apprendi-style not an day is error.13 did government that the a claim rather In Blakely, at 2537. ted conduct. Supreme Court’s decision 12. After Diaz, sen- maximum issue involved the - -, Washington, Blakely v. of conviction. the statutes authorized tence (2004), term L.Ed.2d 403 Diaz, at 682. 296 F.3d something of "statutory took on maximum” guideline meaning: the maximum different Palmer, In United States by jury-proven or admit- authorized sentence Cir.2002), attempted raise a defendant Fox, Fellers, Coffey, preserves hancement the Sixth defendants Amend- consistently all chal- Selwyn, and Sdoulam sentencing ment for appeal. issue proof related to lenged v. Akpan, drug quantity calculations and court’s 2005), Apr.14, WL 852416 Cir. in their sentences.14 In increase resultant Fifth Circuit was faced with a similar issue apprised these defendants doing, so defendant, Okoro, involving a case that it could not increase district court fraud, who was convicted of mail health- on the basis of admitted their sentences fraud, filing care false tax returns. objection An to a drug-related conduct. argued Okoro that his sentence violated report’s basis for a sentence presentence government Booker. The contended that informs the court that enhancement preserve Okoro had the issue failed dispute.” on the Fed. must “rule through objection sufficient the dis- 32(i)(3)(B). objec- When R.Crim.P. disagreed trict court. The Fifth Circuit challenges supporting tion the evidence the government: with enhancement, upon it is incumbent the dis- preserve Okoro did not ... fail to his the disputed trict court to rule whether challenge Booker to the district court’s support is sufficient to the en- evidence loss calculation. Our review Okoro’s mind, objec- my To such an hancement. pre-sentencing objections to the Presen- it is tion notifies the district court that (“PSR”) required sentencing Investigation Report to make determi- tence then in manner that comports objections during nations his his re- is, law; imposing repeatedly objected veal that Okoro except where the defendant enhancements the district court’s determination of a factual basis admits to the enhancement’s range of financial loss between five and sup- government proves or the facts ground ten million on the dollars jury beyond to a porting the enhancement figure proven had not been trial. a reasonable doubt. consistently urged also Okoro district court confine its determination that a suggesting

I am not alone alleged of loss to the amount in the challenge to the basis a sentence en- 1999) (refusing Apprendi appeal, in his Cir. to consider the defen claim second preserved by argu claimed he had the issue challenge dant's to his sentence when issues ing appeal in his first that the district court scope related to it were not within the drug quantity erred in its determinations. remand). court's disagreed, While our court I do not believe proposition that an evi- Palmer stands for 599, Sayre, 14. United States v. 400 F.3d 600- dentiary challenge preserve is insufficient to (8th Cir.2005), impact 01 & n. 3 has no on First, sentencing Sixth Amendment claim. panel Pirani's case did not decide because waiver, the issue in Palmer was forfeiture, rather than type objection matters to what of related importantly, aof claim. More though, appeal, we preserves sentencing in the defendant's first Amendment is- Sixth resentencing our remand to without limited contrast, cases, sues. In each of these like erroneously imposition applied of an en Pirani's, involved Sixth Amendment sentenc- drug quanti was unrelated to hancement that ing defendant's sen- error: increases Jones, 473, ty. See United States v. 160 F.3d tence based on conduct that was neither ad- (8th Cir.1998) (remanding 482-83 the Palmer proven jury. express to a I no mitted nor resentencing defendant's case for without the opinion the result would be here on whether imposition aof role-in-the-o£fense enhance simply the error was that the the same if ment). Thus, Apprendi issue the defen under district court sentenced the defendant appeal attempted dant to raise in his second See, that the Guidelines were mandato- the belief e.g., was available for review. United not Behler, 772, (8th ry, imposed no States v. 187 F.3d 776-77 enhancements. jury larger than the drug quantity of a never ex- Although Okoro indictment-. finding). Amend- the Sixth plicitly mentioned Blakely until his ment, or Apprendi, short, Fox, progeny and their Coffey, Appellate Procedure] of Rule [Federal correctly because the Sixth are decided letter, that his are satisfied 28(j) sentencing pre- error was Amendment the dis- adequately apprised objections preserved It was also in each case. served raising a that Okoro trict making being convicted of here. After to. the loss objection Amendment Sixth statements, being objected to Pirani false government did calculation because convicted of ob- as if he sentenced were beyond a reason- prove jury not that crime was justice because structing between loss was .doubt able He further alleged the indictment. million dollars. to ten five em- that the court should argued stan- beyond-a-reasonable-doubt ploy 852416, 376, 2005 WL Akpan, finally sentencing, and asserted dard at (footnote omitted); accord United at *11 its government had not met bur- that the McDaniel, 540, 546-47 States v. of obstruction proving den elements Cir.2005) (6th (noting that a defendant could Pirani have justice. What more Amendment sentenc may preserve Sixth increase in his challenged He done? by objecting application ing issue conduct, and uncharged based on enhancements”); sentencing “various to send him the district court not implored Kosinski, 2005 States v. WL beyond prison proven based on facts 2005) (un Mar.22, 647777, at *8 Cir. Even the Fifth a reasonable doubt. decision) (“Although Kosinski published Circuits, majority sees which the Eleventh objection Amendment not raise Sixth did analysis plain-error fit to follow its court, object to he did in the Booker, likely have found Pirani’s would made the factual determinations preserve the matter objections sufficient to court, briefs Before this he filed judge. Akpan, for review. See United States arguments Amendment based with Sixth at *11 WL — Blakely Washington, first 2005) (finding objections Apr.14, Cir. -, L.Ed.2d 403 court’s loss calculation were to the district (2004), as those cases and then on a Booker claim de- preserve sufficient that the were decided. We are satisfied Blakely, or spite Apprendi, no mention judicial fact-finding pre objection below to the district Amendment before Sixth re issue for served the Sixth Amendment court); 403 F.3d Dowling, States v. United view.”); Fed. Story, (11th Cir.2005) 1242, (holding that a (6th Cir.2005) (unpublished Appx. may preserve his Sixth Amend- defendant decision) argument a defendant’s (finding sentencing by objecting ment issue posses that a Guidelines enhancement of a sentence based on evidence imposition apply a firearm not because sion of should jury beyond a reasonable proven to testimony trial it based on unreliable was doubt). the Sixth preserve was sufficient to majority my assessment of issue); accepts sentencing Amendment United cf. objec- Garcia, Pirani’s respect the record with to WL 2005) tions, “[b]e- finds them insufficient (holding Apr.13, Cir. this statement couple cause Pirani did not adequately preserved that a defendant Apprendi to or by specific sentencing claim ob with reference Sixth Amendment Amendment.” Ante or the Sixth court’s determination Booker jecting to the district it suggests precision, staying in Booker that with technical is true Nothing at 550. used; requirement must be the substance to Booker’s magic reviewing words objection important. is what is Cer- apply “ordinary courts must prudential Pirani tainly, expected we could not have doctrines, determining, example, Blakely or lodge objection based below, to whether the was issue raised court, as neither with the district Booker ‘plain-error’ whether fails the test.” Pirani eases were decided when Booker, those 125 S.Ct. at 769. I doubt this Moreover, time, at that sentenced. effect, will approach have the desired Apprendi the law of our circuit was least the district court level. enhancements in a manda- require did not stringent prerequisites The more im- to tory guidelines system proven to be rule], posed by plain error as com- [the doubt. See jury beyond a reasonable pared to harmless error [the are rule] (“Use Diaz, judicially at 682 296 F.3d designed encourage to a defendant drug quantity as a basis for determined objections during proceeding raise however, long so sentencing permissible, they corrected, might where be rather not ex- as the defendant’s sentence does strategically objection than withhold an statutory maximum sentence ceed contrast, By as a basis of appeal. quantity an indeterminate available for require possible a defendant to raise all see drug, simpliciter.”); the offense objections despite at trial settled law Alvarez, also States v. 320 F.3d contrary would encourage frivolous (8th Cir.2002) (noting 766-67 arguments, impeding proceeding and “squarely rejected” Ap- Diaz the view that wasting judicial resources. prendi required facts that increase a de- Baumgardner, United States v. guideline range proven to be to a fendant’s (8th Cir.1996) (citation 1308-09 omit- doubt). jury beyond a reasonable Particu- ted); see also United States v. Gonzalez- regard to Pirani’s to be larly request Huerta, 727, 750, 2005 WL on the basis of facts found be- sentenced (10th Cir.2005) (en banc) 807008, at *19 objection yond a reasonable doubt and his J., (Briscoe, concurring part and dis- being sentenced on the basis of a crime part) senting (characterizing as “disin- indictment,15 charged in the this is genuous” practice ap- and “unfair” the entirely with Federal Rule of consistent plying plain error review to Booker claims 51(b)’s statement Criminal Procedure my because it was “unreasonable in view a claim of error party preserve “[a] to conclude that Gonzalez-Huerta could ... of the action informing the below”). and should have raised the issue party the court to take.” wishes was to majority goal seems to feel The stated of the Guidelines strictly system create “a that diminishes sentenc- requiring defendants assert objections at 759. ing disparity.”16 Amendment Sixth govern- significant disparities argument, ed for the that exist in 15. At oral counsel for the agreed my suggestion ment that an ob- charging, prosecuting, and de- jection being sentenced for matters not by made the executive branch of our cisions charged is a Sixth Amend- in the indictment justice system. generally criminal See Gerald argument. ment Heaney, Reality W. Guidelines Sentenc- The of 2000); ing, (Spring Ger- St. Louis L.J. my per- on several I have noted occasions Heaney, Reality Sen- ald W. Guidelines sonal view that while the Guidelines tencing: Disparity, No End To 28 Am.Crim. greater sentencing uniformity have led to (1991). among judges, they account- L.R. 161 district have not since, out, the court itself ap- points circuits is undermined when goal This expressed court twice its dislike of determining in different standards ply sufficiently sentencing guidelines, remarked preserved a whether defendant sentencing possibility an alternative sentencing challenge his Sixth Amendment court, Mr. Pirani to the high,” further under- “too and sentenced in and is the district guideline sentence available. It question differ on the lowest mined when circuits that, might even be this record itself plain with Booker claims on of how to deal creates a sufficient likelihood that Hopefully, Supreme review. a given court would have Mr. Pirani lower promptly resolve these differ- Court will regime that a ences, manner true to the sentence under the Booker and do so in a resentencing remand for is warranted un- concern for basic essence of Booker’s See, previous e.g., der our cases. rights of the defendant under Sixth (8th Warren, Amendment. Cir.2004). least, very At the record ARNOLD, MORRIS SHEPPARD supports delay a short to ask the district SMITH, with whom Circuit Judge, Circuit imposed court whether it would have a joins, dissenting. Judge, different sentence. opinion

I concur in all of the court’s A Mr. question harder for me is whether of it that holds that Mr. except portion justice miscarriage Pirani will suffer a Pirani is not entitled to error relief. given if here the district court would have fully him it a shorter sentence had been oppor I that the court misses believe It requirements aware of Booker. highly practical in tunity adopting might reasonably argued be that since the in States v. Pa resolution reached United imposed sentence that was is not unrea- ladino, Cir.2005), where hardly sonable under it could be a the court remanded the case to allow justice. miscarriage given But we have he sentencing judge certify whether regime error relief under the former had given would have a different sentence a applied wrong where district court merely as adviso guidelines he treated the see, guideline, e.g., United States v. Weav- ry. rejects as an Our this solution er, Cir.1998), I authority, improper delegation of its present sufficiently think that the case is mark. A this characterization misses the similar to these cases that it falls within is not remand the instant circumstances unjust To it it put simply, their rule. is simply delegation anything; is person deprived to be substan- gather relevant to deter device facts tial time of his prized right, his most liber- mining question to a that it is answer ty, misapprehen- of a fundamental because duty question our to answer. That of law a sion court of the United States. giv whether the district court would have pres had it been en different sentence I respectfully therefore dissent. enough cient to foresee Booker. The an BYE, question Judge, concurring part, swer to that is hard to divine Circuit present Why dissenting part. record. not find out? In responding question, to that the district majority I II dissent'from section doing job; court would not its be our opinion, respects all other I concur. response job. to do our would enable us (referring phrase “three-ring circus” three-way circuit been split)

The court’s reluctance to remand is es- has case, pecially dispa- difficult to understand in this used to describe the federal circuits’

563 handling pipeline begun of Booker cases. lower courts have to carve a rate nonetheless, descriptive, phrase a niche for the presumption. Such See United to charac probably appropriate Serrano-Beauvaix, it is more 50, States v. 400 F.3d split three-ring as a circus with (1st Cir.2005) terize J., 59 (Lipez, concurring) attempting each to daz unique twelve acts (discussing situations where “[c]ourts have Yet, logic. compelling zle us with its de that, presumed prejudice for errors act, unique nature of each like spite nature, very their a make demonstration facial hair on the conspicuous bearded difficult”). prejudice of exceptionally un lady, prevails-the one common theme presumption These courts have found a of difficulty assessing preju deniable prejudice appropriate “in cases where the by any particular defendant. dice suffered inherent nature of the error it ex [make] Shelton, States v. 400 F.3d See United ceptionally difficult for the defendant (11th Cir.2005); 1325, 1332 United States demonstrate that the of the lower outcome (2d 103, Crosby, 117-18 v. 397 F.3d Cir. proceeding would different had the [be] 2005); Hughes, United States v. 396 F.3d error not occurred.” United v. States (4th Cir.2005), 374, n. amended on 381 8 (6th Barnett, 516, 398 F.3d 526-27 Cir. (4th Cir.2005); rehearing by, F.3d 540 401 2005) (citing United v. Reyna, States 358 Mares, 511, States v. 402 F.3d 522 United (5th Cir.2004) (en 344, banc); F.3d 351-52 (5th Oliver, Cir.2005); v. 397 United States Adams, 276, United States v. 252 F.3d 287 (6th 369, Cir.2005); n. F.3d 379 3 United (3d Cir.2001); United v. Riascos States (7th Paladino, 471, v. 401 F.3d 482 States -Suarez, (6th Cir.1996)). 616, 73 627 F.3d Cir.2005); Dazey, United States v. court, (10th 1147, example, applied pre Our Cir.2005); 1291, sumption prejudice plain of to a situ error Rodriguez, Smith, Cir.2005); Coles, ation in Rush v. United States v. F.3d 918 (D.C.Cir.2005). Cir.1995) (en banc). There, Timothy Rush, African-American, appealed an from difficulty faced When with such Su- an jury rights adverse verdict on his civil us in certain preme Court informs instanc- against police action two officers whom he presumed prejudi- es an error should be against claimed used excessive force him. Olano, cial.17 appeal Id. at 919. The revolved around 725, 735, 123 L.Ed.2d 508 only the dismissal of the African-American (1993). The Court left undetermined the juror, who the dismissed after of bounds which errors should and should snowstorm caused her to be unable to prejudi- not be considered presumptively attempting attend trial. Id. at 920. In cial, 735-39, id. juror’s absence to the remain explain the presented opportuni- has not been with an ill- jury, der of the the court made some ty pre- to elaborate on the bounds of the regarding advised comments racial solidar However, lack sumption. of such ity. Applying Id. at 921. validity Olano’s opportunity does not affect- the standard, sitting our court en banc presumption, lower as the courts particular facts of the duty to address such determined on power Indeed, duty prejudice in the response potential to this case the bounds. outcome; (3) catego- recognized separate their effect on the 17. The Olano court three (1) ry prejudi- categories category presumed that should be of errors error: specific specific cial the defendant cannot make a where the defendant must make a if (2) showing prejudice; special category showing prejudice. 507 U.S. at regardless of errors that can be corrected S.Ct. 1770. However, though judge a range. even great so that no jurors the minds of may declined to exercise discretion have prejudice was showing of actual specific under the manda- select a lower sentence at reached required. Id. 923. necessarily im- tory regime, this does impracticali of the holding “[b]ecause this duplicate judge would the sentence ply the what, any, this if effect ty determining advisory regime, for two rea- under the had on the racially-divisive remark First, judge strictly ap- a because sons. jury....” Id. mandatory guidelines a case plying the determining impracticality Like heartland, re- an offense’s falling within a trial actually when prejudice suffered on the jurist’s private of the views gardless remarks to racially divisive judge makes range, would adequacy guideline if jury, impractical, impossible, it is to the other defen- pick a sentence relative actually by prejudice suffered gauge Paladino, falling range. within such dants mandatory under a a defendant sentenced Thus, judge the fact a 482. advisory guideline re opposed to an guidelines in the manner Con- applied the prejudice duty showing gime. in- Sentencing and the Commission gress a majority seeks to which the bestow implicit an cannot be viewed as tended tto asking is like a defendan defendant a sentence within the acquiescence to divine-being of a or the prove the existence advisory regime. under an guideline range than our planet of life on a other existence Second, fell position where either does not exist own. The evidence mandatory regime not a reli- under the is human beyond the defendant’s mere or is prejudice suffered able indicator of explain capabilities, any attempt thus resentencing under an seeking a defendant showing, a defendant meet this how advisory regime because overlooks explicit an statement on the record without sentence will now be fact defendant’s sentencing judge, nothing is more by the discretion to judge’s greater affected casuistry. empty an exercise in than under 18 consider the other factors U.S.C. 3553(a). Barnett, § Admittedly, often re plain error review speculate, an court to but quires appellate Pre-Booker, Supreme Court made conjecture judicial is at least based this correctly guideline clear the calculated evidentiary concrete considerations. upon range trumped all other factors under 18 up present, In a such as the set situation 3553(a). § United States v. Book U.S.C. — change in the federal sen by the dramatic er, U.S. -, -, 738, 750, framework, very tencing we have little (2005) (citing v. 160 L.Ed.2d 621 Mistretta way of concrete and reliable indicators States, 361, 391, 109 488 U.S. by a prejudiced a defendant was of how (1989)). 647, 102 L.Ed.2d 714 Post-Book mandatory application judge’s mistaken er, correctly guideline range calculated suggested guidelines. Some equal weight carries with the presumably judge 3553(a) can sentence under tell how will factors. other See United advisory regime by looking Ranum, to where the F.Supp.2d 985-86 (E.D.Wis.2005) guideline fell within the (finding guidelines defendant’ sentence are range the district court factors just one of a number of ip ava ilable considered). In other regime. But see United States under to be mandatory (D.Utah Wilson, words, viewpoint sug F.Supp.2d (espousing those this 2005) giv be unlikely give (stating guidelines a defendant should gest judge in all weight and followed if his sentence fell en considerable a reduced sentence circumstances). the most unusual guideline ends of the upper the middle (1st Cir.2005), because, of the 81 for one Thus, to consideration in addition give equal thing, prior Blakely must to there was no reason range the court guideline sentencing factors such as Rarely, to such information. for provide consideration deterrence, incapaci- instance, just punishment, sentencing judge a vocal as rehabilitation, for the tation, and the need Dyck, in the court United States v. 287 the nature and circum- (D.N.D.2003) to reflect sentence F.Supp.2d (dissenting history and the and sentence). the offense stances of fact, In upon imposition of of the defendant. See characteristics light prevailing political of the climate 3553(a). § many judges would have been re guide luctant to vocalize criticism of history and characteris- assessing

In line sentence. See United States v. Helde there is no limitation tics of the defendant (1st Cir.2005) man, concerning the back- on the information (recognizing judge may a district well not character, person of a and conduct ground, expressed his or her reservations be have may pur- consider which guidelines hopeless); made them cause appropriate sentence. poses imposing Douglas Kelley, A. Minnesota see also (citing at 760 18 U.S.C. Caught a Constitutional 3661). Judge Federal previously factors Accordingly, § (2004) 27 Hamline L.Rev. 427 Crossfire, ordinarily sentencing irrelevant deemed guidelines plight such of the Chapter (discussing under 5H of the Honorable Rosenbaum, age, Judge, education voca- M. as the defendant’s Chief Unit James skills, mental and emotional condi- tional District for the District of ed States Court tions, condition, Minnesota). employment rec- physical futility expressing ord, family responsibilities, ties guideline to deviate downward from desire are now valid consider- charitable service range pronounced light is even more imposing a sentence. ations for a court law, in pre-Blakely sentencing our which Ranum, F.Supp.2d at 985-86. We twenty-three twenty- out of we overturned cannot know how consideration factors departures five and affirmed downward affect a defendant’s sen- such as these will forty-four forty-six upward depar out of speculate is tantamount tence and Yirkovsky, v. tures. See United States sentencing function at the performing the (8th Cir.2003) J., (Heaney level. Williams v. United appellate See dissenting) (highlighting statistics from States, 193, 205, 2003). Therefore, July while May 2000 to (1992) (“[I]t is not the role 117 L.Ed.2d 341 unambiguous a district court’s statements judg- its appellate of an court to substitute may affirmatively prejudice, establish that of the court as to ment for of comment does not establish absence particular of a sen- appropriateness fact, in the absence of rea antithesis. tence.”). 3553(a) other soned deliberation factors, sentencing judge her not even Perhaps only reliable indicator the term of may predict be able to self by. prejudice actually suffered the de- impose upon re- imprisonment she would unambiguous remarks on fendant would be uncertainty, this sentencing. Because of indicat- sentencing judge record contrary, proof in the absence of him a ing give she lower would preju defendant was presume must to do so. Relief had she the discretion error, approach best however, by the as this error, on diced depend from should not underpin Rule promotes policies which sentencing judge, the vocal nature of the 52(b). Antonakopoulos, jury ly demand defendants to have underlying plain error “en policies sentencing beyond and reduce timely objections applicable find facts courage reasonable, by demanding strenu would face a cold re wasteful reversals doubt unpreserved get exertion to relief ception. judges ous "While some Dominguez Beni error.” United States argument, other simply dismissed the 2333, 2340, tez, 74, 124 159 ridiculous, 542 U.S. S.Ct. rejected it as judges would (2004). regard, In this the L.Ed.2d 157 have admonished while still others would to a plain-error attempts standard strike lawyer wasting for the court’s time. proper functioning “the of between balance lawyer’s so much of a effectiveness "When adversary system, efficiency manag or her upon reputation is based his justice.” litigation, and the demands of ing credibility, why any would advocate risk Barnett, 516, 532 States v. 398 F.3d United diluting any arguments meritorious (inter (6th Cir.2005) (Gwin, J., concurring) majority something overwhelming of omitted). every “If error quotation nal frivolous. The judges would have deemed reversal, trial courts would resulted majority punish out to now sets defendants re-trying of time spend inordinate amounts failing objec for the court with burden cases that involved insubstantial errors.” only a matter of tions deemed frivolous Conversely, Id. rule that never consid “[a] “Frankly, ‘it unfair to ago. months seems ered errors unless there had been a trial failing fault to raise at [the defendant] objection ‘would result in counsel’s inevita [sentencing] objection upon based a objections bly making long laundry a list of rule that not announced until after the ” rulings plainly supported by that were [sentencing] was concluded.’ ” existing precedent.’ (quoting Id. John Serrano-Beauvaix, 50, States v. States, 461, 468, 117 v. son United U.S. (1st Cir.2005) J., (Lipez, concurring) (1997)). L.Ed.2d I am S.Ct. Barone, (quoting United States v. unnecessarily rigid plain er concerned (1st Cir.1997)). 1284, 1294 championed by majority ror standard appear presumed It would therefore preserve this To error disrupts' balance. prejudice exception prejudice to the re- client, lawyer, a under a conscientious quirement prong plain of the third of error reading majority opinion, fair of the must Booker-type review was tailor-made for er- laundry objections of now raise list be Thus, majority rors. to the contrast court, fore the district even to those issues First, adopts approach which of the appellate deemed all courts to be well- Circuits, adopt Fifth and Eleventh I would settled. approach thoroughly articulated fact, As a matter of the issue necessitat Applying Circuit in Barnett. this Sixth ing plain our error discussion was once Pirani, approach government on this See, e.g., well-settled. presumption cannot overcome the record (2d Guevara, 120 n. 4 Cir. prejudice. 2001) (listing Apprendi that held circuits regard prong plain In to the fourth apply guidelines). did not While review, which allows the court policies should concern ourselves about the plain exercise its discretion to correct a 52(b), underlying forget Rule we must not fairness, seriously error if it affects the objection to what we now consid judi- integrity, public reputation or Blakely er Booker or error was discour majority compares proceedings, cial aged by equally pervasive doctrine error, namely the situation here to United States v. Cot- prohibition against frivo ton, 625, 122 arguments. actuality, pre-Blake- lous In S.Ct. (2002). comparison tence remand to the district court for Such L.Ed.2d 860 Cotton, resentencing. Supreme undeserved. its discretion to exercise

Court declined fourth error re- prong

under the pres- failed to government

view where drug quantity grand evidence

ent expressed rule

jury in violation of the 466, 120 Jersey, v. New 530 U.S. Apprendi DISTRICT, MINIDOKA IRRIGATION (2000). 2348, 147 L.Ed.2d 435 Cot- Plaintiff-Appellant, ton, 122 S.Ct. 1781. The 535 U.S. integrity stated the fairness Court INTERIOR, DEPARTMENT OF OF justice system was not threatened criminal STATES; THE A. UNITED Gale Nor drug the evidence of by this error because ton, Secretary Interior; of the John essentially overwhelming and quantity was Keys, III, W. Commissioner of Recla uncontroverted, grand jury surely thus mation; McDonald,* Re J. William amount. requisite have found the would Reclamation, gional Director of De 633-34, Thus, 1781. Id. at fendants-Appellees. Cotton, drug quantity prop- had the been No. 03-35697. grand jury and al- erly presented the outcome would leged the indictment Appeals, United States Court of actually happened in have mirrored what Ninth Circuit. original proceeding. Argued and Feb. 2005. Submitted cer- The same cannot be said April Filed 2005. The outcome of tainty present case. Rehearing Pirani’s sentence absent the district court’s As Amended on Denial of mandatory July En Banc application erroneous of the necessarily mirror guidelines would not happened original sentencing

what at the process

because has

changed allowing the district court con- previously factors deemed irrelevant.

sider Cotton,

Therefore, we do not know unlike be, un-

what the outcome would and such

certainty strikes at the heart of the fair-

ness, of the integrity public reputation Paladino,

judicial system. 401 F.3d at 483

(“It miscarriage justice give increases

person illegal sentence just it is to convict an punishment,

his as person.”).

innocent I would therefore ex- to vacate Pirani’s sen-

ercise our discretion * Underwood, cessor, 43(c)(2), R.App. Dennis as Commissioner Pursuant to Fed. P. Gale A. Reclamation; predecessor, and J. William McDonald is for her Norton is substituted Interior; Keys, predecessor, Lujan, Secretary his John W. as substituted for Manuel III, Regional Keys, prede- Director of Reclamation. W. III is substituted for his John

Case Details

Case Name: United States v. Louis F. Pirani

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Apr 29, 2005

Citation: 406 F.3d 543

Docket Number: 03-2871

Court Abbreviation: 8th Cir.