*4
ord ultimately does not establish that the
COLLOTON, Circuit Judge, concurring.
thought
court
the sentence im
I concur in Judge
opinion
Benton’s
posed
inappropriate.
The district
court,
I
comports
believe
with
recognized
court
that the Ex Post Facto
our
governing precedent
court’s
concern-
applied
changes
Clause
to
in the sentenc
Even
(S.
waiver.
were Harrison’s claim ing guidelines,
22-23),
Tr.
and the court
subject
error,
however,
to review for
authority
course had
to consider a
I do not believe the district
imposi-
court’s
departure greater
downward
than either
,affect[ed]
tion “seriously
sentence
party
sought.
States,
See Burns v. United
fairness, integrity
public
or
reputation
115 L.Ed.2d
judicial
(1991).3
proceedings,”
required
as
before a
The
explained
to Harri-
argues
was)
The
in Wil-
surely
dissent
decision
our
"illegal
Harrison's
is not an
sen-
Michelsen,
son conflicts with United
States
purposes
enforcing
tence” for
appeal
an
(8th Cir.1998). Michelsen,
son that had range, carriage justice warranting relief under sentencing guideline applicable 52(b). need had to consider the Federal Rule of Procedure but that “also Criminal any you from punish you and deter LAY, dissenting. Judge, Circuit (S. 29). Tr. other criminal conduct.” my belief court concluded: “So it’s respectfully I has dissent. months, being low end of the legal technicality in invoked a order to appropriate sentencing guideline, unjustifiedly illegal affirm an severe (Id). your case.” majority’s reliance waiv- sentence. ignores the totally Supreme er Court’s believed, I district court Whatever the opinion in United States v. a greater absence of conclude that 123 L.Ed.2d 113 S.Ct. seriously af- in sentence did not reduction (1993). addition, the district court and fairness, integrity public repu- fect the authority impose this court lack the ques- It judicial proceedings. tation of illegal sentence. Harrison deserved tionable whether *5 all, departure given at his rec- downward Illegality I. of the Sentence prior drug convictions based on ord of nine majority that holds Harrison waived incidents between separate at least six sentence, right object his his to to which to years 1991 he 29 31 1989 and when was imposed the applica- was under retroactive ¶¶ (PSR 34-39)4, old, proba- a of violation in tion of the ¶¶ a 2003 Guideline violation of (PSR 1992, 34-37), a adjudicated tion in Ex Facto con- ¶ Clause. The (PSR 2001, 40), in shoplifting conviction cludes Harrison is therefore barred from age 44 for and his instant conviction an on appeal. such pursuing intent distribute 1.49 possession with to However, the directive con- ¶ constitutional (PSR 21). kilograms of cocaine. Cf. tained in the Ex Post Facto cannot Clause 773, Hutman, 339 F.3d United States orders Con- be waived. Constitution (8th (concluding 776 after a sur- (and states) Bill of gress “[n]o vey depar- that “a downward precedent ex Law shall be post Attainder or may status ture from career offender 3; I, § Art. cl. passed.” U.S. Const. relatively young for defen- appropriate a Accordingly, § cl. 1. see also id. career”). a But dant with brief criminal Commission, Sentencing which craft- U.S. parties agreed to a accepting that pursuant to Sentencing ed the Guidelines departure, I a think delegated authority, created Congress’ history category of more than one criminal § 1B1.11. This Guideline tells the U.S.S.G. under the would have been “unreasonable” federal courts this case. See 18 U.S.C. circumstances of 3742(e)(3). in guidelines § use manual effect Accordingly, even were sentenced, review, I that the defendant is error date matter before us the court determines that has demonstrated unless appellant do not believe post limit ex facto clause would violate the the district court’s decision Constitution, in months, resulting thus the United States to 20 reduction in the manual effect on a months case it is use imprisonment in term of 168 conviction, appears that all of the offenses presentence report four reflects that imprisonment five for sale of cocaine and a term punishable convictions were were possession cocaine. were for exceeding year. convictions one each associated with Based on sentences 810 “procedural” right date that the offense of conviction is not a mere can committed. Because an amendment carelessly. be shed United States Sentencing poten- (10th Cir.2004)
to a Guideline has Groves, 1178, 1182 F.3d 369 tial increase a defendant’s (reversing remanding a defendant’s prior crime committed sentence under the Guidelines on ex amendment, ex facto clause grounds “sentencing because court if a violated defendant is sentenced un- impose is not authorized to an unconstitu in the Guidelines at the der effect time tional as a sentence —such when those Guidelines violates the Post Facto Clause—and than produce sentence harsher one such a sentence is illegal”); therefore see permitted under the Guidelines in effect also Lightsey, United States v. at the time the crime is committed. (11th Cir.1989) (same). 304, Frank, United States v. While it is that an well-settled individual (8th Cir.2004) (internal quota- citations and appellate rights can his or waive her omitted); tion marks see also U.S.S.G. exchange plea agree for the of a benefits § (identifying statutory 1A1.1 authori- ment, see, Garrido, e.g., United States v. Guidelines); ty for creation of the Miller v. Florida, Cir.1993), 423, 435-36, (wherein (1987) never possesses authority impose L.Ed.2d Supreme unanimous Court that a illegal held re- sentence that violates the Ex Post sentencing guideline vised state Clause, was void Facto even where a defendant *6 defendant, as to applied the whose offense agrees illegal to the in plea sentence the occurred before the revised law’s effective agreement. See United States v. Michel date). sen, n. 872 & 3 that, (recognizing notwithstanding Ex a volun Post
The Facto Clause enshrines a tary knowing appellate and waiver of binding constitutional mandate that is and, extension, rights, upon Congress by a defendant implicitly preserves the his Sen- or tencing right appeal Commission and all courts at- her to a sentence on tempting implement to grounds the Guidelines. It If illegality).5 not this were Wilson, 5. generic, United States v. procedural right appeal 800- while the to (8th Cir.1999), waived, appears the right prohibit- to state con can be the substantive trary. post I am not confident that Wilson rests ex facto on laws cannot. As Michelsen states, reasoning. right correctly appeal sound Wilson states the to a sentence on grounds constitutionally guaranteed illegality knowing "procedur even a survives and right may voluntary rights. appeal appellate al” to waiver of See waived a crimi Yet, F.3d at nal defendant. at 872. To the extent that and Id. the Wilson Wilson Michelsen create a court refused conflict within our own to consider Wilson’s substantive circuit, appeal this issue warrants post argument appeal, citing ex facto further the rehearing. general rule that a explicitly defendant who rate, voluntarily exposes and any factually himself or herself to a At Wilson is from distinct may Wilson, challenge sentence not the instant case. the defendant's appeal. majority Id. at 801. The attorney sentencing hearing makes stated at the supra majority an identical mistake. See he or she had reviewed the Inves- Presentence (citing opinion tigation (PSIR) at Thomp Report 4-5 United States v. it and "believed [was] son, (8th Cir.2002); Wil correct and accurate in all matters.” son, 800-01; Here, 184 F.3d at attorney and United States v. F.3d at 799-800. Harrison's (8th Cir.1995)). Nguyen, 46 F.3d sentencing made no such at the concession on, general Indeed, bearing hearings. This rule has no and ever since the PSIR in this released, trump, special procedure cannot the review case attorney Harrison and his Second, 52(b). argued articulated in Fed.R.Crim.P. have that the PSIR's recommendation illegal clearly that waiver must be the true, parties agree could states then Yet, response in product of intent. Id. contracts.6 comment that Ex the Government’s the applied the sentencing If is inapplicable Post Facto Clause in a harsher resulting wrong Guideline Guidelines, the court itself district stated would than the correct Guideline sentence record, “Well, it on the hasn’t been —it imposed,7 then Harrison’s sentence have But hasn’t been raised. I toss out for and is the Ex Post Facto Clause violates intellectually hungry.” are Tr. those who court lacked illegal, added). (emphasis at 21 This statement authority to the sentence. impose from the district court is definitive. Accordingly, I vacate would The reasons that because resentencing pursuant and remand for “judge explicitly ... the ex post raises in at the that were effect Guidelines court,” facto see open supra Harrison the offense. time committed 3, then it can majority opinion ignore at judge’s subsequent statement that Analysis Federal Rule of II. Under Facto issue “hasn’t been—it 52(b) Procedure Criminal Tr. hasn’t at This been raised.” holds that Harri- majority opinion makes no sense. The fact that the sen- argument. son waived the ex tencing court and counsel for Govern- clearly majority in so wrong. pontificated This issue ment about the holding principles contradicts of Olano. sentencing hearing on March 1—while de- fense counsel remained silent —does 52(b), a court of Under Fed.R.Crim.P. change legal of this issue. status appeals power has the to address errors majority’s attempt to reconstruct object in party did not as appear of this case so facts court. consciously defense counsel waived an ob- limited; an power 1770. This 5.Ct. grounds clearly jection on ex al- may only correct the appellate court *7 his Harrison did not waive erroneous. if that leged error that occurred below on the first (a) (b) rights intentionally. Although, plain, error affects substantial judge was day sentencing, of the district (c) inadvertently rights, and forfeited. was issue, facto hinting potential post at the ex 732,113 Id. at S.Ct. clearly the counsel was unaware of defense A. Forfeiture Versus Waiver judge’s questions. At implications the most, forfeiture, not this is inadvertent explained, the court “forfei- As Olano waiver. timely ture is the failure make the evidence of majority’s strongest right,” of a “waiver assertion whereas statements, down to two both relinquishment the or aban- waiver boils ‘intentional ” interpretive require gigantic of which right.’ donment of a known Id. (citations omitted). demonstrates leap to conclude that either Olano agreements Post seriously do not violate the Ex Facto of "career status overre- offender" court, presented history. may More- probably Harrison's criminal with and Clause rests the over, agreement plea not con- any Harrison’s does type issue that be the constitutional provision stating his that he waived tain sponte. sua be allowed raise court should rights. appellate (conducting a Part at 7-9 7. See II.B. infra plea required approve 6. Because courts are analysis). harshness agreements, obligation plea the to ensure that relinquishment by an intentional of Harrison’s record made Harrison his counsel— First, post right. during ex the first point at a time after the day hearing (February the sentencing mentioned the Ex Post Facto Clause ex- 24), judge and before the ever mentioned plicitly relinquished he or waived his —'that the words “ex facto or the 2002 right under Ex Post the Facto Clause. It Guidelines,” judge asked attor- the surprising is not that the record should be neys much he how discretion had to statement; devoid of such a reading fair counsel requested downward. Defense of the record reveals defense counsel departure one-level downward in criminal remained mute because he did simply not history. any Without mention of the dif- comprehend was going what Guidelines, ferently worded 2002 defense hearing. Defense counsel’s confused si- judge’s request counsel assumed that lence cannot be an transformed into ex- (more pursuant was made limiting) press or intended statement the Ex 2003 version of the is not Guidelines. This inapplicable.9 Post Facto Clause was evidence of an intentional waiver—it Once the resumed on March evidence an inadvertent forfeiture. judge finally Ex mentioned Second, points the majority February Facto Clause name. The Government '26 when defense counsel filed amended began to offer an to the court on departure motion reiterat- issue, explained judge clearly but the request at the hearing. made first the issue was not before the court. Again, point, at this no one mentioned the As this exchange transpired between the 2002 Guidelines or the Ex Post Facto judge prosecutor, and defense counsel re- obviously Clause. Defense counsel re- mained silent. After the ex peated request he thought because explicit, issue became defense counsel nev- judge needed clarification again specified precise er extent allowed under the 2003 version. Counsel departure being sought. comprehend did what not was at, getting and that is inadvertent forfei- It ais stretch to rule that waiver of the ture, relinquishment.8 not intentional guarantee Post Facto can Clauses’ oc- Conspicuously lacking cur definitively from the where that issue “not opinion is any express court, statement in the raised” before the as the record context, If taken out zontally yet requesting record shows only single also — lodged conflicting that defense counsel history category departure criminal because *8 vague requests regarding depar the extent of clear); yet the ex is not issue Tr. at upon specifically ture and relied law case that (asking impose on court March 1 to a sentencing judge's authority endorsed the to guideline sentence at the end low of the depart downward than more one offense lev range, specification omitting ap- but a e.g., Support el. See Def. in Brief of Motion plicable range). Departure (requesting for Downward at 6 that justice the court "reduce his sentence as and Contrary 9. patently the Government's in- requesting specific fairness dictate” but no brief, transcript correct claim in its from level); offense Def. Am. Motion for Down sentencing hearing contains conces- no Departure Request Argu ward and for Oral that, fact, by sion defense counsel the new (submitted February ment at and guideline depar- controlled extent requesting departure a category of "one level ture in this merely case. Defense counsel V”); category category from VI to atTr. conceded that the 2003 Guideline amendment (basing departure request on the United "came about in November of Tr. at 2003.” 666, 668, Greger, States v. explicitly allows a sentenc —which 20. ing judge vertically both and hori- undisputed policy It that the engage in a version. it defies reason to states. But hold, § as the and further contained in statement U.S.S.G. 4A1.3 double-charade does, (2003) can waiver departures such limits the downward for failure to by defense counsel’s achieved history criminal career offenders one gra- a at which grasp issue category. Harrison’s total offense Given ciously hinting. a history category level of 31 and criminal (after application single down- V arguments simply were
Ex
departure),
resulting
ward
by Harrison’s coun-
asserted or waived
not
(14-17.5 years).
range
168-210 months
sel,
assert a
and an
failure to
inadvertent
right
impacting
constitutional
substantial
the Government concedes that
Even
penal
integrity
and
of the
the fairness
“[pjrior to November
no such re-
R.Crim.
system
precisely
what Fed.
allowing
striction existed
the Court to de-
52(b)
enables a defendant
resur-
Proc.
(criminal
catego-
part horizontally
history
731-32,
at
appeal.
rect
(offense level)
ry)
vertically
from the
113 S.Ct.
applicable
guideline
career
offender
at
range.”
(citing
Government’s Brief
8-9
Affecting
Plain Error
B.
Substantial
(8th Cir.2003)).
Greger,
the Ex Post Facto Clause. “The Harrison did waive of this er- application tion -of against retroactive ror. This case out for cries reversal. is an thread new laws essential protection of
mantle the law affords Mathis, Lynce
the individual citizen.” 891, 433, 439, 137 U.S. (1997). a temporal
L.Ed.2d 63 In both and sense, error affects “sub-
.substantive rights.”12
stantial applied Since district court Jerry LANGLEY, Appellant Plaintiff — of imposed version the Guidelines and if harsher sentence than would have under , version, §' prior 1B1.11 was U.S.S.G. COUNTY, ARKANSAS, . HOT SPRING type violated This of deviation from a Appellee. Defendant — binding “plain Guideline courts upon 52(b). meaning error” within the of Rule No. 03-3620. “If legal during rule violated was United States Court of Appeals, proceedings, district court if and the de Eighth Circuit. rule, did fendant not waive the there then has meaning been within the of ‘error’ 13, Sept. Submitted: 2004. 52(b) despite timely Rule absence of Filed: Jan. objection.” 733-34, 507 U.S. at S.Ct. 1770. short,
In the district court committed
plain error affecting
rights,
substantial
and
argues
provisions
Government
.The
removal of such
can constitute
§
amendment to U.S.S.G. 4A1.3 did not tech-
punishment,
pris-
an increase in
because a
nically
penalty
increase the
for the
and
crime
eligibility
oner’s
imprisonment
for reduced
.
therefore did not
increase
harshness of
significant
entering
factor
into both the
Rather,
Harrison’s sentence.
the Govern
plea bargain
defendant’s decision to
and
reasons,
merely
ment
the amendment
re
judge's
of the
calculation
sentence to be
the sentencing
discretionary
stricted
court's
imposed.
authority
more than one criminal
445-46,
(emphasis
Id.