Lead Opinion
Fabian Muyaba, Joseph Mudekunye, and three co-defendants were charged in a 39-count indictment stemming from their tax-fraud conspiracy. Muyaba, Mudekunye, and one co-defendant were convicted in a joint jury trial. Muyaba challenges the sufficiency of the evidence to support his convictions; the district court’s applying two Sentencing Guideline enhancements; and its ordering part of his sentence to run consecutively. Mudekunye challenges its failure to sever his trial from Muyaba’s; and his sentence as being procedurally unreasonable. We AFFIRM in part and VACATE and REMAND in part.
I.
From 2004 to 2007, Mudekunye and Muyaba worked as tax preparers at Reliable Tax Services in Dallas, Texas, where they participated in a conspiracy to file fraudulent tax returns. In 2007, Muyaba began operating Efficient Tax Service, where he and Mudekunye prepared tax returns in a similar, fraudulent manner.
At both Reliable and Efficient, Mudekunye and Muyaba falsified tax returns in several ways, inter alia: changing their clients’ filing status (“single” to “head of household”); and claiming losses for nonexistent businesses. Upon receiving their tax refunds, the clients were charged size-able and misleading fees.
To avoid IRS detection, Reliable submitted returns using a different Electronic Filer Identification Number each year. Defendants also hid their fraudulent operations by denying their clients copies of their returns, despite repeated requests. Consequently, until they were contacted by the IRS, many clients were unaware their tax returns contained false information.
Following a Government investigation, Mudekunye, Muyaba, and three co-defendants were charged in the 39-count indictment. All were charged with conspiracy to prepare fraudulent tax returns, in violation of 18 U.S.C. § 371. Mudekunye and Muyaba were each charged with multiple counts of: aiding and assisting in the preparation of fraudulent tax returns, in violation of 26 U.S.C. § 7206(2); aiding and abetting, in violation of 18 U.S.C. § 2 and 26 U.S.C. § 7206(2); and identity theft, in violation of 18 U.S.C. § 1028(a)(7) and (c)(3)(A).
At the conclusion of the Government’s case-in-chief, Muyaba’s motion for judgment of acquittal was granted for three counts. A jury found Muyaba guilty on seven of ten counts; Mudekunye, six of 12.
Muyaba was sentenced, inter alia, to 120 months’ imprisonment: 60 on count 1 (conspiracy); a consecutive 24 on count 33 (preparation of fraudulent tax forms); and 36 each on counts 27-28 and 30-32 (same offense), to run concurrently with each other, but consecutive to the sentences for counts 1 and 33. Mudekunye received,
II.
Muyaba’s, then Mudekunye’s, claims are addressed. Analysis of one or more claims for each is restricted because their review is only for plain error.
A.
Muyaba presents two challenges to his convictions; four, to his sentence. Each fails.
1.
Muyaba preserved his sufficiency challenge by moving, pursuant to Federal Rule of Criminal Procedure 29(a), for judgment of acquittal at the close of both the Government’s case-in-chief and all the evidence. Accordingly, review is de novo. E.g., United States v. Simmons,
a.
For his sufficiency challenge to his conspiracy conviction, Muyaba contends: the evidence did not show he worked at Reliable; and, therefore, the Government did not establish his involvement in the tax-fraud conspiracy there. The Government had to prove beyond a reasonable doubt that “defendant either positively or tacitly agreed with another person to accomplish a common and unlawful plan, and that during the existence of the conspiracy, one of the conspirators knowingly committed an overt act in furtherance of the conspiracy”. United States v. Bourgeois,
The evidence established that Muyaba worked as a tax preparer at Reliable; had a cubicle there; was engaged by many clients when they visited it for tax-filing help; and was one of several of its tax preparers who fraudulently prepared returns. A rational trier of fact could find, beyond a reasonable doubt, that Muyaba was part of the conspiracy.
b.
Muyaba also makes a sufficiency challenge to his conviction for aiding and assisting in the preparation of false and fraudulent tax forms at Reliable. The Government had to prove, beyond a reasonable doubt, that Muyaba “willfully aided, assisted, counseled, or advised another in the preparation or presentation under the internal revenue laws of a document that is fraudulent or false as to any material matter”. United States v. Clark,
Muyaba insists some of the trial testimony was “incredible and unworthy of belief’. As noted, the evidence’s being sufficient does not require the removal of all doubt, e.g., Anderson,
2.
In challenging two enhancements to his offense level, Muyaba contends: the one for leader-or-organizer does not apply to him; and the one for obstruction-of-justice was applied incorrectly because he did not commit perjury at trial. The district court’s findings of fact for sentencing are reviewed for clear error; its application and interpretation of the Guidelines, de novo. United States v. Creech,
a.
Guideline § 3Bl.l(c) provides: “If the defendant was an organizer, leader, manager, or supervisor in any criminal activity ..., increase [his offense level] by 2 levels”. Its commentary states:
To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants. An upward departure may be warranted, however, in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization.
U.S.S.G. § 3B1.1 cmt. n. 2.
The court applied the two-level enhancement based upon finding that Muyaba “was an organizer and a leader in the Efficient Tax Service”, serving as its owner, and the employer of at least one other person, Mudekunye. In contesting this enhancement based upon his role at Efficient, although he is silent about his work there, Muyaba maintains the district court clearly erred because “he didn’t play as big a part in Reliable as the others”. The enhancement was based upon Muyaba’s role at Efficient, not Rehable.
b.
In challenging his obstruction-of-justice enhancement for perjury at trial, Muyaba maintains: his testimony about Amber Redden was his “belief’, which is insufficient to be classified as a lie; and evidence of Muyaba’s wife having removed his office documents following his arrest is
If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels.
U.S.S.G. § 3C1.1. Additionally, “the court should be cognizant that inaccurate testimony or statements sometimes may result from confusion, mistake, or faulty memory and, thus, not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice”. U.S.S.G. § 3C1.1 cmt. n. 2; see also United States v. Greer,
Muyaba testified he had no access, post-arrest, to documents at Efficient; however, other evidence showed his testimony was false because his wife had then retrieved those documents. Additionally, Muyaba testified that he believed one of his clients, Redden, had employed Muyaba’s brother in Missouri to complete her return. Redden’s testimony, however, was that she did not know Muyaba’s brother, and had watched Muyaba complete it.
In addition, there were manifest inconsistencies in other portions of his testimony. In applying the enhancement, the court adopted the presentence investigation report’s (PSR) discussion of Muyaba’s inconsistent trial testimony. For example, he testified he never worked for Reliable, even though, as discussed supra, significant evidence established that he did. Muyaba also denied completing and signing fraudulent returns; however, that testimony conflicts with extensive evidence of fraudulent claims on returns he completed and signed. The court ruled: the inconsistencies in Muyaba’s testimony were “material to whether he was guilty ... of the counts ... against him, and ... his statements on these issues [did] not result from confusion, mistake, or faulty memory, but [were] instead a willful and deliberate attempt to obstruct justice”.
3.
Muyaba also contends the district court erred in ordering that his sentence for count 33 be consecutive to those for counts 27-28 and 30-32. He maintains: the sentences for each count should have been grouped and ordered to run concurrently because, under Guideline § 3D1.2, those counts charged him for the same offense, violations of 26 U.S.C. § 7206(2) that were for “substantially the same harm”.
Because Muyaba did not so object at sentencing, review is only for plain error. E.g., United States v. Ronquillo,
a.
The PSR grouped all counts as “Closely Related”, including the six counts for violations of § 7206(2) (27-28 and 30-33). Because one count of conviction was for conspiracy to prepare fraudulent tax
If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment In all other respects, sentences on all counts shall run concurrently, except to the extent otherwise required by law.
U.S.S.G. § 5G1.2(d) (emphasis added).
For Muyaba, the count carrying the highest statutory maximum sentence was count 1 (conspiracy to prepare fraudulent tax returns), with a statutory maximum of 60 months’ imprisonment. Each of the other counts (fraudulent-tax-return preparation) had a statutory maximum of 36 months. Therefore, if the court had imposed concurrent sentences for all counts of conviction, Muyaba’s total sentence would have been 60 months’ imprisonment, well below his advisory range of 97 to 121 months, and in contravention of Guideline § 5G1.2(d).
b.
Muyaba also claims ineffective assistance of counsel (IAC) because: his counsel did not object at sentencing to the sentence for count 33 being consecutive (deficient performance); and Muyaba was prejudiced because he accordingly received 24 additional months of imprisonment. E.g., Strickland v. Washington,
We “resolve [IAC] claims ... on direct appeal only in rare cases where the record allow[s] us to evaluate fairly the merits of the claim”. United States v. Higdon,
B.
Mudekunye claims: his trial should have been severed from Muyaba’s; and, on two grounds, his sentence was procedurally unreasonable.
1.
Although Mudekunye moved to sever prior to trial, he did so only with respect to co-defendant Niehelle Henson not with respect to Muyaba. Nevertheless, he contends the district court erred by not severing his trial from Muyaba’s, and claims resulting prejudice. Because this issue is raised for the first time on appeal, review is only for plain error. E.g., United States v. Misher,
Severance vel non is within the discretion of the district court: it should be granted “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants”, and limiting instructions to the jury will often cure any prejudice resulting from a joint trial. Zafiro v. United States,
As discussed, a generalized showing of prejudice is insufficient. E.g., United States v. Solis,
2.
Mudekunye contends his sentence was procedurally unreasonable because the court erroneously applied two sentencing enhancements for the same conduct. Because Mudekunye failed to raise this objection below, plain error review applies. See United States v. Hernandez-Martinez,
a.
Under the Guidelines, if a § 2T1.4(b)(l) enhancement is applied at sentencing, a § 3B1.3 enhancement should not be. U.S.S.G. § 2T1.4(b)(l) cmt. n. 2. The Government concedes that the district court erred in applying both enhancements and that this error was clear. The application of the § 3B1.3 enhancement resulted in a total offense level of 28. Combined with Mudekunye’s criminal history category of I, the application of the enhancement resulted in an advisory sentencing range of 78 to 97 months. The correct Guidelines range is 63 to 78 months. See U.S.S.G. Ch. 5 Pt. A (Sentencing Table). The incorrect Guidelines range (78-97 months) and the correct Guidelines range (63-78 months) overlap by one month as the top of the correct range and the bottom of the incorrect range are the same: 78 months.
b.
To satisfy the third prong of plain-error review, the error must have affected the defendant’s substantial rights, which ordinarily requires the defendant to show that the error “affected the outcome of the district court proceedings.” United States v. John,
There is a second line of precedent relevant to this case. These cases hold that when the correct and incorrect ranges overlap and the defendant is sentenced within the overlap, “we do not assume, in the absence of additional evidence, that the sentence affects a defendant’s substantial rights.” Blocker,
Mudekunye’s case does not neatly fall into either line of precedent. The correct and incorrect sentencing ranges overlap by one month, but he was sentenced well outside the one month overlap, 19 months above the correct range. No published cases have addressed the same fact scenario, but in an unpublished case, United States v. Carrizales-Jaramillo, we remanded for resentencing in a similar situation.
It is not apparent from the record that Mudekunye would have received an above-Guidelines sentence of 97 months if the district court had calculated the Guidelines correctly. See John,
c.
Even where a defendant’s substantial rights are violated, our court retains discretion to correct the reversible plain error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Puckett,
III.
For the foregoing reasons, we AFFIRM on every ground with the exception of Mudekunye’s sentence which we VACATE and REMAND for resentencing.
Notes
. Because we vacate and remand for resentencing, we need not address Mudekunye's argument that his sentence was procedurally unreasonable because the sentencing court treated the Guidelines as mandatory and ignored mitigating factors.
Dissenting Opinion
dissenting in part:
I dissent only from the majority’s, under plain-error review, requiring resentencing for Mudekunye (part U.B.2.). It has been almost 20 years since United States v. Olano,
This is vividly reflected in the majority’s analysis and holding for Mudekunye’s sentence, through which it seeks to apply the Supreme Court’s and our precedent. It’s time for our court to step back, re-examine, and simplify this important and all too often complex aspect for applying plain-error review to sentences imposed under the advisory Guidelines. Accordingly, I urge our court to review en banc this part of the majority opinion.
In vacating Mudekunye’s sentence, the majority emasculates the plain-error standard of review by applying it in a manner inconsistent with the Supreme Court’s and our precedent. In an area of law it admits is unclear, the majority effectively creates a new rule: where defendant’s imposed sentence lies outside the correct advisory Guidelines sentencing range, defendant must be resentenced in district court. This rule is neither supported by precedent nor justified under plain-error doctrine. The majority’s strained insistence on resentencing reflects that, within our circuit, plain-error review, in this context, has been weakened to the point of toothlessness, thereby defeating its many im
I.
From 2004 to 2007, Mudekunye and Muyaba, with others, were tax preparers at Reliable Express Tax Services, in Dallas, Texas. Mudekunye was one of two primary preparers. In 2007, Muyaba began operating Efficient Tax Services, where he and Mudekunye conducted a similar business. Throughout, Mudekunye, Muyaba, and others, participated in a tax-return scheme, falsely claiming (frequently without their clients’ knowledge) dependants, business expenses, filing status, and tax credits; they also charged exorbitant fees against their clients’ refund checks.
Mudekunye, Muyaba, and three co-defendants were charged in a 39-count indictment. A jury found Mudekunye guilty on six counts, including conspiracy, preparation of false income taxes, and identity fraud; Muyaba was found guilty on seven similar counts. Mudekunye was sentenced, inter alia, to 97-months’ imprisonment; Muyaba, to 120.
The district judge who sentenced Mudekunye had presided at his trial. For Mudekunye’s offense level for computing his advisory Guidelines sentencing range, the district court adopted the calculation in the presentence investigation report (PSR): a criminal history category level I and an offense level 28, resulting in an advisory sentencing range of 78 to 97 months. As discussed in the majority opinion at 289, in determining that offense level, the district court erroneously applied two Guidelines sentencing enhancements for the same conduct. But for this error, Mudekunye’s offense level would have been two levels lower, resulting in an advisory sentencing range of 63 to 78 months — with a one-month overlap at 78 months between the correct and incorrect ranges.
In sentencing Mudekunye, the district court considered: trial evidence; 18 U.S.C. § 3553(a)’s sentencing factors; adopted PSR fact-findings; the Guidelines’ being advisory; and Mudekunye’s request for a sentence at the bottom of the advisory sentencing range. The PSR included information that Mudekunye filed fraudulent tax returns from 2003 until late 2008, for an IRS tax loss of $3,426,916 (a “conservative estimate” because it did not include a variety of falsely-claimed credits). In the light of those many factors, the district court concluded a 97-month sentence was “appropriate” and stated: “In addition, this sentence happens to be within the guideline range.... ”
II.
Undisputed is the standard of review— plain error. For understanding how our court has strayed from the limited role intended for such review, it is helpful first to recall its history through the landmark Olano decision in 1993.
A.
Plain-error review is grounded in Federal Rule of Criminal Procedure 52, which took effect in 1944 and concerns application of harmless and plain error. For harmless error, the original Rule 52 provided: “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded”; but, “[pjlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court”. Fed. R. Crim. P. 52(a)-(b) (1944).
The harmless-error portion of the Rule has not been substantively amended; the plain-error portion has been and now pro
The plain-error portion of the Rule codified the doctrine that had previously existed only in common law. Id. That doctrine provided: “[I]f a plain error was committed in a matter so absolutely vital to defendants, [appellate courts are] at liberty to correct it”. Wiborg v. United States,
Although the plain-error doctrine was, in the beginning, somewhat loosely defined, the Supreme Court was consistent in its limited use to reverse verdicts. The Court generally believed it appropriate where there was either a clear lack of evidence supporting a jury conviction or an erroneous jury instruction. See, e.g., Wiborg,
Eight years before Rule 52(b) went into effect, the Court, in United States v. Atkinson,
As noted, Rule 52(b), enacted in 1944, codified the plain-error doctrine. Between 1944 and 1982, the Court applied Rule 52(b) in a manner consistent with the doctrine that predated its taking effect. See, e.g., United States v. Park,
As also noted, at its inception, Rule 52 did not define the phrase “affecting substantial rights” — nor does it do so now. The Court, however, in Kotteakos v. United States,
In United States v. Frady,
The Court subsequently noted that the “miscarriage of justice” standard articulated in Frady was synonymous with that from Atkinson (“seriously affect the fairness, integrity or public reputation of judicial proceedings”). United States v. Young,
As noted, in Olano, the Court in 1993 clarified and made uniform “the standard for ‘plain error’ review by the courts of appeals under Rule 52(b)”. Olano,
In 1993, in Olano, in reversing a circuit court’s employing plain-error review to overturn convictions, the Court held the presence of alternate jurors among a deliberating jury was not reversible plain error. Olano,
The Court explained that forfeited error occurs when defendant fails to make a timely objection to a court’s deviation from a legal rule; on the other hand, “waiver is the intentional relinquishment or abandonment of a known right”. Id. at 733,
That four-prong framework provides: first, there must be error; second, that error must be “plain” — “clear or obvi
In any event, Olano clearly established that remand may be appropriate only where the reversible plain error impacts this discretionary fourth prong, i.e., seriously affects the fairness, integrity, or public reputation of judicial proceedings. Olano,
B.
For Mudekunye, those first two prongs of plain-error review (an error in applying the two enhancements that was clear or obvious) are not at issue. The majority’s application of the third and fourth prongs flies in the face of each prong and is contrary to both the limited role for plain-error review and the discretion and flexibility accorded it.
1.
Under Olano’s third prong, for reversible plain error, the clear or obvious error (“plain error” upon analysis of the first two prongs) must “affect substantial rights”, generally meaning defendant must demonstrate that the error “must have affected the outcome of the district court proceedings”. United States v. Mares,
For Rule 52(a) harmless-error review, the Government bears the burden of showing the error was harmless beyond a reasonable doubt; however, for Rule 52(b)’s plain-error review, it is the defendant who bears the burden of persuasion with respect to the prejudice (third) prong. Ola-
In sentencing Mudekunye, the district court was very thorough. It received evidence, including testimony, concerning the tax-loss amount attributable to Mudekunye’s conduct ($3,426,916), and found that the calculations used in the PSR were reasonable and accounted for a complete loss to the Government. In addition, the court heard testimony from two witnesses concerning Mudekunye’s personal history and characteristics, and considered letters pleading for leniency on his behalf. Moreover, Mudekunye requested a sentence at the bottom of the calculated advisory Guidelines sentencing range (78 months), contending he did not do “anything that would suggest that his sentence should be any higher than that”.
After considering the facts contained in the PSR, Mudekunye’s objections, character witnesses, and his request for a 78-month sentence, the district court imposed a 97-month sentence, which the court described as “reasonable” based upon “the evidence that I have heard at trial and those [sentencing] matters I’m required to take into account under Section 3553(a)”. The court added: “I believe this is the appropriate sentence in this case given all of the facts and circumstances and that this sentence is sufficient but not greater than necessary to comply with the statutory purposes of sentencing after reviewing all of the factors required to be considered”. It then stated: “In addition, this sentence happens to be within the guideline range and that range does not exceed 24 months”. (Where defendant is sentenced within an advisory Guidelines sentencing range, and if that range exceeds 24 months, the court must provide the reasons for imposing that sentence. 18 U.S.C. § 3553(c)(1). In any event, as shown above, those reasons were given.)
Here, in holding that Mudekunye’s substantial rights were affected, the majority fails to consider his burden of persuasion (the majority correctly states the rule, but ignores it, Maj. Opn. at 289). In essence, the majority attempts improperly to satisfy Mudekunye’s burden for him. Defendant’s burden, under the third prong, requires
the defendant to show that the error actually did make a difference: if it is equally plausible that the error worked in favor of the defense, the defendant loses; if the effect of the error is uncertain so that we do not know which, if either, side it helped the defendant loses.
Mares,
As for the majority’s attempting to satisfy Mudekunye’s burden for him, his opening brief does not even begin to show his substantial rights were affected. In an argument of just over one page, Mudekunye concedes the error was not preserved in district court and asserts only that, nevertheless, “this error must result in a new sentencing hearing”. Re-stated, his brief simply asserts: he was sentenced under the wrong advisory Guidelines sentencing range; and, therefore, he is entitled to resentencing.
Moreover, Mudekunye did not file a reply brief. Accordingly, he did not reply to the Government’s thorough briefing on why he failed to show reversible plain error and why, even if he had, we should not exercise our discretion to correct it.
In short, it is the majority, not Mudekunye, who references the record evidence: “It is not apparent from the record that Mudekunye would have received an above-Guidelines sentence of 97 months if the district court had calculated the Guidelines correctly”. Id. at 290. Along this line, Justice Cardozo admonished that a judge “is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness”. Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921); see also United States v. John,
Properly placing that burden upon defendant — -as is clearly required — yields a different result. Mudekunye shows only that he was sentenced under an incorrect advisory Guidelines sentencing range; but, being sentenced outside the correct range does not, ipso facto, affect his substantial rights. Post-Booker, an advisory Guidelines sentencing-range calculation is just “one factor that a district court must consider in its [18 U.S.C.] § 3553(a) analysis.... ” Davis,
A more complete (and proper) evaluation of the record shows that Mudekunye has not met his heavy burden of persuasion. The majority either glosses over or chooses to ignore: Mudekunye’s asking for a sentence at the bottom of the (now incorrect) advisory sentencing range and the district court’s instead deciding to sentence him at the top of that range; the court’s clear statement treating the Guidelines as advisory only; the correct and incorrect advisory ranges overlapping one another; the district court’s adopting the facts and findings of the PSR; and the district court’s stating that Mudekunye’s sentence “is the appropriate sentence in this case given all of the facts and circumstances” and “[i]n addition ... happens to
The majority at 290 considers “vague” these “appropriate sentence ... given all of the facts and circumstances” and “happens to be within the guideline range” statements, because the district court did not add that it would impose the same sentence even if it were not within a correct range. Id. But words have meaning; and, as an appellate court, we must presume that the sentencing court meant what it said. It would go beyond frustrating the purposes of the judicial process for our court to guess at what the sentencing court did, and did not, “mean”. In the light of the foregoing, Mudekunye, at best, can show (and does not even attempt to do so) only that the impact of the error is perhaps uncertain' — in which instance he has not established that the error affected his substantial rights. See Jones,
As stated, the majority appears to conclude that, in this instance, remand would not be required had the district court either: (1) been more explicit in its desire to impose the 97-month sentence regardless of the advisory Guidelines; or (2) calculated both the correct and incorrect sentencing ranges before imposing sentence. Maj. Opn. at 290. In doing so, the majority cites United States v. Lemus-Gonzalez,
For starters, neither Bonilla nor Le-mus-Gonzalez applied plain-error review; in each instance, the issue was preserved in district court. Moreover, the majority’s conclusions based upon these cases are nonsensical. First, I am at a loss for what else the district court here could have meant in saying that the sentence was appropriate “given all of the facts and circumstances” and “happens to be within the guideline range”. Second, the majority essentially requires a sentencing court to: (1) recognize its error sita sponte; and (2) create two sentences — one desired and one conditional — with the conditional to be used only if the desired sentence is not free from error. In my view, that places an unnecessary and unrealistic burden upon the district court.
2.
Even assuming Mudekunye’s substantial rights were affected, his sentence should not be vacated. As discussed, the fourth, and discretionary, prong of plain-error review provides: even if defendant has satisfied the first three prongs, we retain discretion to correct the error and should do so only if it “seriously affects the fairness, integrity or public reputation of judicial proceedings”. Olano,
As noted, this is a discretionary, not mandatory, prong, and informs our court that remand “should be employed in those circumstances in which a miscarriage of justice would otherwise result”. Olano,
In addressing the fourth prong, the majority notes our court’s discretion to correct reversible plain error, and then states: “The substantial disparity between the imposed sentence and the applicable Guidelines range warrants the exercise of our discretion to correct the error”. Maj. Opn. at 291. It states no more, other than citing United States v. Gonzalez-Terrazas,
Here, the majority utterly fails to conduct any sort of fact-intensive inquiry. See Puckett,
A more thorough (and, in my view, correct) review of the record mandates that, under our discretion, resentencing is not required. See Young,
In the light of Mudekunye’s criminal conduct, this is not the appropriate instance for us to exercise our discretion and require resentencing; in the light of the entire record, the district court’s error did not rise to the level of being “particularly egregious”. Frady,
Regardless, the point remains: in failing to conduct a fact-intensive inquiry, the majority fails to conduct plain-error review. See also id. at 291 (Smith, J., dissenting) (“[Gjranting relief under the fourth prong is wholly discretionary and ... must be done on a case-by-case basis ... [;] we are not tethered to what other panels of this court have done in deciding whether to exercise their discretion in other cases, similar or not”.).
C.
Because the majority vacates Mudekunye’s sentence due to the district court’s erroneous application of two enhancements, instead of one, it does not address Mudekunye’s contending, in the alternative, that the sentence is greater than necessary. Maj. Opn. at 291 n. 1. Because Mudekunye’s first challenge to his sentence fails, it is necessary to address his second: that his sentence was proeedurally unreasonable because the district court, according to Mudekunye, treated his advisory sentencing range as mandatory and ignored mitigating factors — his history and characteristics.
Mudekunye contends he preserved this second procedural challenge at sentencing by, as noted supra, requesting a below-range sentence. That, however, does not constitute the contention presented here. United States v. Garciar-Bahena,
The record reflects that the district court expressly treated the Guidelines as advisory and considered, inter alia, defendant’s history and characteristics. Accordingly, Mudekunye does not get past the first prong of plain-error review: he fails to show error by the court in its consideration of § 3553(a). See United States v. Smith,
D.
This is yet another instance revealing the confused status and application of our circuit’s precedent for plain-error review. See Davis,
The following provides a vivid example of our confused precedent. As noted, in Price (2008), our pr e-Booker line of cases applied an objective test for whether defendant’s substantial rights were affected by a misapplication of a sentencing-Guidelines enhancement: if, on remand, “the judge could reinstate the sentence, we held, we would find no [third-prong] prejudice under plain error review”. Price,
As recent opinions show, our court has become increasingly “generous with remand” in addressing sentencing errors under plain-error review. As Ellis reminded and cautioned:
Not every error that increases a sentence need be corrected by a call upon plain error doctrine. It bears emphasis that all defendants’ appeals challenging a sentence rest on the practical premise that the sentence should be less. The doctrine of plain error serves powerful institutional interests, including securing the role of the United States District Court as the court of first instance, as opposed to a body charged to make recommendations to appellate courts. And even if an increase in a sentence be seen as inevitably ‘substantial’ in one sense it does not inevitably affect the fairness, integrity, or public reputation of judicial process and proceedings. To conclude that not correcting the error claimed here casts doubt upon the fairness, integrity, or public reputation of the proceeding drains all content from the doctrine of plain error.
Ellis,
In the sentencing context, plain-error review has been watered down by years of, in my view, incorrect application. Post-Booker, our court has, as discussed by the majority, applied at least two per se rules with respect to sentencing errors and our review under the plain-error standard. The first is: when defendant’s sentence falls within an incorrect advisory Guide
Along those lines, in applying plain-error review post-Booker, our court has generated significant variance in measuring the severity of a sentence-increase necessary to affect defendant’s substantial rights where the Guidelines were erroneously applied. See, e.g., Blocker,
Here, the majority effectively maintains that any sentence erroneously outside the correct advisory Guidelines sentencing range affects defendant’s substantial rights. That position will hamstring our court’s discretionary role in future sentencing cases under plain-error review, thus guaranteeing that the fourth prong will be “illusory”.
Moreover, the majority’s interpretation of plain-error review in this instance puts an unnecessary and excessive burden upon district courts. As noted, in setting a low threshold for reversible plain error, the majority undermines a basic premise of plain-error review: “to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them”. Puckett,
III.
For these reasons, I respectfully dissent from Mudekunye’s being resentenced and urge our court to consider en banc the proper (more simple and flexible) application of posNOicmo and post-Booker plain-error review.