*1 Holder, Jr., Eric H. States Attor- United Fisher, America, R.
ney, Appellee, Assistant United John UNITED STATES of Attorney, Washington, DC. v. WHREN, Appellant. Michael A. WALD, WILLIAMS, TATEL, Before No. 95-3193. Judges. Appeals, Opinion for the PER District Columbia Court filed Circuit. CURIAM. 30, Argued Jan. 1997. May 6, Decided 1997.
PER CURIAM. presents ques No. 96-3083 the threshold filing-fee provisions
tion whether Litigation Act
Prison Reform of 1995
(“PLRA”) apply proceedings under 28 presents § 2255. No. 96-5200 question respect
same to 28 U.S.C. publish opinion 2254. We order to
express circuits, agreement with our sister uniformly inappli PLRA held the proceedings.
cable to such See Smith v. (4th 1126,
Angelone, 111 F.3d 1129-31 Cir.
1997); Singletary, v. Anderson F.3d 801
(11th Cir.1997); Simmonds, United States (10th 737, Cir.1997); 742-45 Naddi (9th Hill, Cir.1997); 106 F.3d Cole,
(5th Cir.1996); States, Santana v. United (3d Cir.1996); 755-56 Martin v. States, 855-56 Cir.
1996); Keane, (2d Reyes v.
Cir.1996). publish disposition
We need of appellants’ appeals,
merits of which will issue separate orders.
Nancy Page, Attorneys, U.S. R. Assistant DC, Washington, were brief. HENDERSON, GINSBURG, and Before TATEL, Judges. Circuit
Opinion for the Court filed Circuit Judge GINSBURG.
Concurring opinion Judge filed Circuit HENDERSON.
GINSBURG, Judge: In are asked to decide a criminal ease we whether defendant whose to have remanded the district court for re- may raise for time there the first challenge a sentence is unrelated the reason the remand. We hold newly-raised not do so unless his objection sentence based error so or it for him. Background
I.
on four
Michael Whren was convicted
One, possession with
intent
counts:
grams more of
distribute 50
or
cocaine base
(the
Two,
count);
distribution
grams
with
intent
to distribute 50
1,000
of a
more of cocaine base within
feet
(the
count);
schoolyard
Three, posses-
school
Four, possession
marijuana;
sion of
and
phencyclidine,
Pursuant
to the
POP.
a/k/a
Guidelines,
Sentencing
prison
was
168 months
sentenced
serve
pay
a
assessment
$150.
offense level for
distribution
The base
drugs
count,
quantity of
determined
involved,
which, considering Whren’s
was 32
history, produced a sen-
Category II criminal
months. The base
tencing range of 135-168
schoolyard
count was
offense level for
Wright,
Lisa B.
Assistant Federal Public
32 for the
the same
Defender,
appellant,
argued cause
be-
plus
two-level enhancement
involved
Kramer,
whom
Federal Public De-
A.J.
drugs “directly
protect-
involved
cause the
fender,
DC,
Washington,
was on
briefs.
¶ 2D1.2(a)(l). An
ed location.” U.S.S.G.
Danello,
of 34
an offender with
U.S. Attor-
offense level
Elizabeth H.
Assistant
history
Category
produces
II
ney, argued
appellee, with
criminal
the cause for
Holder,
range
Jr.,
Attorney,
of 168-210 months. Whren
whom Eric H.
U.S.
Fisher,
Trosman,
court’s
dispute
the district
determina-
R.
John
Elizabeth
Congress:
Report
the correct base offense
Feder-
tion that
was
Cocaine and
1995),
Sentencing Policy (February
al
level for his violation
stat-
Sentencing
which the
The district court
then
Commission asserts
ute.
sentenced
justification
large
there is no
to the maximum of 168 months on the
disparity
prescribed
between the
and to
minimum 168
distribution count
*3
count,
a crack
cocaine offense and that for a
schoolyard
on
sen-
months
the
the
powder
involving
similar
cocaine.
concurrently.
offense
tences
be served
urged
grant
Whren also
the court to
a down-
arguing,
appealed
Whren
to this
departure in light
ward
of
educational
things,
among other
that
the distribution
prison.
argued
efforts
Whren next
that he
count
it is a
should be vacated because
lesser
should
receive the two-level sentence en-
schoolyard
of
included offense
the
count.
normally
out
hancement
meted
for a convic-
that,
acknowledged
Whren
because
he
statute,
schoolyard
under
tion
the
see
schoolyard
for the
the sentence
2D1.2(a)(l),
§
presence
U.S.S.G.
because his
conviction, vacatur of the distribution count
(He
a
near
school was fortuitous.
was driv-
upon
would have no
his overall sen-
effect
arrested.)
by
ing
stopped
when he was
tence other than to reduce his
assess-
Finally,
argued
that
district
the
ment
$50.
give
court did not have
him a
discretion
court affirmed
on
Whren’s convictions
pass
schoolyard enhancement,
on the
then it
Two, Three,
Four,
Counts
as did the
grant
offsetting
should
him an
downward
—
Court;
-,
Supreme
U.S.
116 S.Ct.
departure because
not run
his offense did
(1996).
1769,
resolve material issues on—-when under Federal of Criminal all Of Rule 52(b) single in in is fresh mind —and record Procedure thereby minimizing scope proceeding, belatedly even an raised if it consider issue i.e., proceeding, first second should the prejudicial obvious both and and therefore that, note had result in a remand. We also arguably “plain rises to the level of error.” sentencing argument Whren his Olano, 725, 734, 507 U.S. the district first time before 1770, 1777-78, L.Ed.2d S.Ct. appeal, in remand his this court but (1993); Saro, see only if would have reversed his sentence (D.C.Cir.1994) (error 283, 286 must be “so plain have shown it was a could plain judge prosecutor the trial were Myles, error. it, countenancing in derelict even absent the (D.C.Cir.1996). In this second timely detecting defendant’s assistance would be both anomalous inefficient it”). error, Relief is available for how- place having in á position better ever, only relatively in those rare “circum- neglected to raise a relevant justice miscarriage stances which a trip either court or the district first would otherwise result.” the court than he would be in he Frady, 456 U.S. 163 n. 102 S.Ct. neglected had raise it the district (1982). 1592 n. L.Ed.2d court. *5 In this case the district did hold, therefore, We a resentenc- plainly failing err in to on its notice own remand, ing by a occasioned unless the argument that the enhance appeals expressly otherwise, directs apply ment should not to Whren’s offense may new consider such presence his because near at the school arguments newly or new facts as are made time of his arrest was fortuitous. We had by appeals’ relevant the court of decision— already rejected in United or reasoning whether the result. McDonald, 868-70 Jennings right- While we think the court was (D.C.Cir.1993). Nor the district court ly might that a concerned defendant not have plainly sponte err in not departing sua down at raised an issue his ground purpose ward that the of the because it was not then to material — schoolyard enhancement would not be served resentencing find at that the be- issue had legal this case. If there is no clear rule— come material —the solution tailored to that expressed prior whether in a decision or problem is for district not to resen- governing issue, then the dis tence the defendant de novo but to consider elsewhere — trict court’s plain decision cannot be a error. newly relevant issue. A defendant Merlos, should not held to be have waived an issue (D.C.Cir.1993) (jury equating instruction he did have a to reason raise it his at “strong “beyond belief’ with belief a reason original sentencing; but neither de- should a plain able doubt” not error at because time of fendant to be able raise an issue for first appellate trial no court had held instruction time resentencing if he did have reason erroneous). point Here was far from but failed it in nonetheless to raise the earli- clearly only appellate established. -The au approach er proceeding. Under our a defen- thorities Whren could may argue support muster at position McDonald, of his were dicta in appeals’ has decision breathed life issue, (passenger carrying drugs F.2d at 870 previously into dormant but he subway speeding by train “might or school revive in the round second an issue he departure”), warrant and in just allowed to in the That die first-. what (3d Rodriguez, to n. belatedly tried do when he Cir.1992) (downward sentencing arguments departure in an would effort to low- be sentencing range permissible hypothetical involving er his from 168-210 “defen months just speeds to 135-168 months. He had much dant who in a train as school reason, sale”). ability, way and no less to make the same other vehicle on the to a narcotics arguments original sentencing hearing. at his But it is not a error for a trial court not court, ion.* was clear to the it of the court of dictum follow mere Warren, is clear to me and should have been clear
appeals. See United counsel, (D.C.Cir.1994). According- whose failure to raise defense 657-58 merger argument first failing at plainly err in meritorious trial court did not ly, the sentencing necessitated the remand. argument. sponte notice sua aside, scope of counsel the mandate defense III. Conclusion raising the fortuitous knew that the time long past. proximity issue was She failed above, judgment given the reasons For argue first point and on the district court is reasonably request a appeal. could not She Affirmed. particular apple, third at that .however bite declining it tantalizing, after twice. HENDERSON, KAREN LeCRAFT Judge, concurring: but see no need I concur the affirmance analysis or announcement extended rule on remand.
of a new appellate panel remanded for the
The first resentencing on count two result
ministerial count
ing from vacatur of the one cónvict * were, panel’s resentencing discussion in its concluded that section 841 offenses fact, The first 860(a) entirely paragraph, one takes one sentence of included lesser offenses of section appel- government agrees wit: offenses. Consequently,pursuant argument. lants' Appellants their convictions for contend that agreement parties, remand to the will 841(a)(1), pro violation of 21 entry judgment District Court an amended con with intent distribute scribes *6 on Counts and Two. One base, substances, including cocaine trolled Whren, (1995) be vacated because that section de added). (emphasis remanding panel could offense of scribes lesser-included have, succinctly directly and more than more 860(a), proscribes with in did, simply court to vacate instructed controlled substance within tent distribute a and sentence count one and conviction Appellants rely one thousand feet of a school. Williams, reimpose fact the sentence count two. The F.Supp. 8- on United States precise (D.D.C.1992), language its opinion, that its is less does not affect without aff'd (D.C.Cir.1993), my meaning view. which the District