Concurrence Opinion
concurring in the denial of rehearing en banc:
With its denial of rehearing en banc in this case, this Court has left intact our circuit law on Booker plain error as it is laid out by our panel decision in this case, United States v. Rodriguez,
Our Rodriguez decision, which was followed in Duncan and Curtis, establishes that the use of extra-verdict enhancements under the pr e-Booker mandatory guidelines scheme is Sixth Amendment error that is plain. Rodriguez,
Under our decisions, where the Booker issue is raised for the first time on appeal the third prong of the plain error test will be the decisive one. As we explained in our panel opinion, the Supreme Court has instructed us that the third prong requires that an error have “affect[ed] substantial rights,” which almost always means that the error “must have affected the outcome of the district court proceedings.” Rodriguez,
Our four decisions do not adopt a per se rule about whether the third prong of the plain error test will be met in pr e-Booker sentencing cases. Instead, the result depends, as it should, on the facts of the case. For that reason, it is entirely consistent for Rodriguez, Duncan, and Curtis to have concluded that the defendants in those three eases did not carry their burden of establishing the third prong of the plain error test, while Shelton concluded that the defendant in that case did.
I.
Judge Tjoflat would have this Court adopt a per se rule that the third prong of the plain error test is met in every case of pr e-Booker constitutional error, and he would do it in a way that would also preclude application of the harmless error doctrine even in the most extreme case. His thesis is that a Booker constitutional error is a structural error or defect, and for that reason there is no need for the defendant to show third-prong prejudice for plain error purposes. Judge Tjoflat brands all pr e-Booker sentences in which there was constitutional error “illegal,” and he offers no plausible reason why the fourth prong of the test would not be met if the third prong were. The bottom line of his approach is automatic reversal of every pre-Booker sentence in which there was an extra-verdict enhancement. That approach does offer the attraction of reducing this Court’s workload, because nothing is easier to apply than an automatic rule that dictates the same result regardless of the facts. Ease of application aside, the proposed rule is not legally or logically appropriate in the pre-Booker area. No other judge has ever even suggested this theory, except in the course of rejecting it.
Contrary to Judge Tjoflat’s belief, it simply is not true that “the only real difference” between his approach and that of the Third, Fourth, and Sixth Circuits is that his “offers a more satisfactory rationale for its result.” See Tjoflat, J., dissenting, at 1293. While the situation in the Third Circuit is unclear, under the Fourth and Sixth Circuits’ approach, sentences involving Booker constitutional error may be upheld under the harmless error doctrine. See, e.g., United States v. Tate,
The First Circuit has expressly rejected Judge Tjoflat’s structural theory of Booker plain error. This is what that Court said about it:
Nor is this structural error. In certain structural error cases, those which “undermin[e] the fairness of a criminal proceeding as a whole,” errors can be corrected regardless of an individualized showing of prejudice to the defendant. Dominguez Benitez,124 S.Ct. at 2339 ; Olano,507 U.S. at 735 ,113 S.Ct. 1770 ,123 L.Ed.2d 508 ; see Arizona v. Fulminante,499 U.S. 279 , 309-310,111 S.Ct. 1246 ,113 L.Ed.2d 302 (1991) (providing examples of structural error). Because sentencing under a mandatory system is not an error that “undermines the fairness of a criminal proceeding as a whole,” as we discuss above, a Booker type error is not a structural error; the defendant must convince us of prejudice. Indeed, had the majority in Booker thought there was structural error, it would have said so.
United States v. Antonakopoulos,
In response to the First Circuit’s reasoning that if Booker error were structural the Supreme Court would have said so, Judge Tjoflat says that the Court did. According to him, the last sentence of Justice Breyer’s Booker majority opinion about remedy tells us that we are dealing with structural error. To see that message in the last sentence of that opinion requires not just a set of reading glasses but also a vivid imagination. Rather than take the sentence out of context, it is best to set. out the entire last paragraph of the opinion:
As these dispositions indicate, we must apply today’s holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review. That fact does not mean that we believe that every sentence gives rise to a Sixth Amendment violation. Nor do we believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the “plain-error” test. It is also because, in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.
United States v. Booker, 543 U.S. —,
Focusing on the last sentence, Judge Tjoflat reasons that: 1) because the Supreme Court explicitly said that the harmless error doctrine applies to statutory Booker error, the Court must have meant that the harmless error doctrine does not
There are all kinds of problems with this theory. To begin with, it is based upon a negative pregnant, and as Judge Becker once observed for the Third Circuit, “drawing instruction from Supreme Court passages through the use of the negative pregnant is risky and unsatisfactory.” Brooks v. Kyler,
In that sentence the Supreme Court expressed its belief that some sentences involving Booker error would be affirmed because the defendant could not satisfy the plain error test. The Court’s stated belief that the rigors of the plain error test would weed out some Booker error cases is not surprising given that it has previously instructed us that the power to notice plain error should be exercised “sparingly,” Jones v. United States,
Judge Tjoflat’s structural theory contradicts that stated belief of the Supreme Court, because under his theory the third prong of the plain error test will always be satisfied where there is Booker constitutional error. And the third prong is the decisive one. Every court to address the matter has agreed that Booker error satisfies the first two prongs of the plain error test. Likewise, all of the courts to address the issue have found the fourth prong met in Booker constitutional error cases where the third prong is satisfied. See United States v. Oliver,
Judge Tjoflat does not provide any persuasive basis for believing that the fourth
Because structural error, where it exists, renders a criminal punishment fundamentally unfair, it would be difficult to justify a conclusion that an error that is structural does not “seriously a£fect[ ] the fairness, integrity or public reputation of judicial proceedings,” Olano,
So far as can be discovered, no court has ever actually held that an error is structural but fails to meet the fourth prong of the plain error test. However much it may detract from the appeal of the Booker structural error theory, the fact is that adopting that theory will almost certainly result in reversal without regard to the facts of an individual case. That is what the structural error approach generally does and is one reason it is so rarely applied.
The result of Judge Tjoflat’s position that Booker constitutional error is structural error, then, is that every Booker constitutional error will satisfy the plain error test and require reversal and resen-tencing. Thus, in his view, the Supreme Court’s belief about the effect of applying “ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the ‘plain-error’ test,” Booker,
Seeking to free his theory from the clutches of the Supreme Court’s statement that not every Booker error will meet the requirements of the plain error test, Judge Tjoflat posits that the Court must have meant only Booker statutory error. Beyond satisfying the needs of his theory, there is no reason to interpret the Court’s statement that way. The Court did not say that it expected reviewing courts to apply ordinary prudential doctrines, such as the plain. error test, only in cases of statutory error. Nor is there any reason
The heart of Judge Tjoflat’s structural error theory is that Booker constitutional errors affect the sentencing framework in ways that are “necessarily unquantifiable and indeterminate.” Tjoflat, J., dissenting, at 1282-83 (quoting Sullivan,
Judge Tjoflat’s theory that Booker constitutional error is structural error is also contrary to this Court’s own en banc decision in United States v. Sanchez,
Even if our Sanchez decision did not exist, we still should not hold that Booker error is structural error. The Supreme Court itself has been careful to note that, “[w]e have found structural errors only in a very limited class of cases.” Johnson v. United States,
After listing those structural error cases, the Supreme Court in Fulminante explained the common thread: “ ‘Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’ ” Id. at 310,
The Supreme Court reiterated the rarity of structural error in Neder v. United States, stating that: “[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.”
Clemons v. Mississippi,494 U.S. 738 , 752-54,110 S.Ct. 1441 , 1450-51,108 L.Ed.2d 725 (1990) (unconstitutionally overbroad jury instructions at the sentencing stage of a capital case); Satterwhite v. Texas,486 U.S. 249 ,108 S.Ct. 1792 ,100 L.Ed.2d 284 (1988) (admission of evidence at the sentencing stage of a capital case in violation of the Sixth Amendment Counsel Clause); Carella v. California,491 U.S. 263 , 266,109 S.Ct. 2419 , 2421,105 L.Ed.2d 218 (1989) (jury instruction containing an erroneous conclusive presumption); Pope v. Illinois,481 U.S. 497 , 501-04,107 S.Ct. 1918 , 1921-23,95 L.Ed.2d 439 (1987) (jury instruction misstating an element of the offense); Rose v. Clark,478 U.S. 570 ,106 S.Ct. 3101 ,92 L.Ed.2d 460 (1986) (jury instruction containing an erroneous rebuttable presumption); Crane v. Kentucky,476 U.S. 683 , 691,106 S.Ct. 2142 , 2147,90 L.Ed.2d 636 (1986) (erroneous exclusion of defendant’s testimony regarding the circumstances of his confession); Delaware v. Van Arsdall,475 U.S. 673 ,106 S.Ct. 1431 ,89 L.Ed.2d 674 (1986) (restriction on a defendant’s right to cross-examine a witness for bias in violation of the Sixth Amendment Confrontation Clause); Rushen v. Spain,464 U.S. 114 , 117-18 & n. 2,104 S.Ct. 453 , 454-55 & n. 2,78 L.Ed.2d 267 (1983) (denial of a defendant’s right to be present at trial); United States v. Hasting,461 U.S. 499 ,103 S.Ct. 1974 ,76 L.Ed.2d 96 (1983) (improper comment on defendant’s silence at trial, in violation of the Fifth Amendment Self-Incrimination Clause); Hopper v. Evans,456 U.S. 605 ,102 S.Ct. 2049 ,72 L.Ed.2d 367 (1982) (statute improperly forbidding trial court’s giving a jury instruction on a lesser included offense in a capital case in violation of the Due Process Clause); Kentucky v. Whorton,441 U.S. 786 ,99 S.Ct. 2088 ,60 L.Ed.2d 640 (1979) (failure to instruct the jury on the presumption of innocence); Moore v. Illinois,434 U.S. 220 , 232,98 S.Ct. 458 , 466,54 L.Ed.2d 424 (1977) (admission of identification evidence in violation of the Sixth Amendment Counsel Clause); Brown v. United States,411 U.S. 223 , 231-32,93 S.Ct. 1565 , 1570-71,36 L.Ed.2d 208 (1973) (admission of the out-of-court statement of a nontestifying codefendant in violation of the Sixth Amendment Counsel Clause); Milton v. Wainwright,407 U.S. 371 ,92 S.Ct. 2174 ,33 L.Ed.2d 1 (1972) (confession obtained in violation of Massiah v. United States,377 U.S. 201 ,84 S.Ct. 1199 ,12 L.Ed.2d 246 (1964)); Chambers v. Maroney,399 U.S. 42 , 52-53,90 S.Ct. 1975 , 1981-82,26 L.Ed.2d 419 (1970) (admission of evidence obtained in violation of the Fourth Amendment); Coleman v. Alabama, 399 U.S. 1 , 10-11,90 S.Ct. 1999 , 2003-04,26 L.Ed.2d 387 (1970) (denial of counsel at a preliminary hearing in violation of the Sixth Amendment Confrontation Clause).
Fulminante,
Against this flood of decisions holding that various and sundry constitutional and statutory errors are not structural, Judge Tjoflat’s proposition that Booker error is structural is unpersuasive. It would not be enough to make Booker error structural even if, as he argues, defendants had no incentive before Booker to put forward evidence relating to the 18 U.S.C. § 3553(a) factors. Tjoflat, J., dissenting, at 1289. We know that would not be enough because the Supreme Court has held a number of errors not to be structural, even where the error may have prevented or discouraged the defendant from putting forward additional evidence or arguments. For example, in Carella v. California,
The same is true when constitutional error is committed by precluding lesser included offenses in capital cases. A defendant prevented by state law from having the jury consider a lesser included offense very well might refrain from putting forward evidence that he was guilty of it instead of the greater offense. Be that as it may, the Supreme Court in Hopper v. Evans determined that this type of constitutional error is not structural and affirmed the conviction because the unconstitutional preclusion provision had no prejudicial effect in that case.
For the reasons just discussed, it would not be enough to make Booker error structural if defendants in pre-Booker sentencing proceedings had no incentive to introduce mitigating evidence or arguments relating to § 3553(a) factors. Judge Tjoflat’s structural theory depends on the assumption that before Booker there was
Chief Judge Boggs of the Sixth Circuit has pointed out the flaw in this argument:
This argument ignores a fundamental feature of the Guidelines: they present a sentencing court with a range, from which it must select a sentence. In this case the range was nearly five years— 57 months. Counsel already had every reason and every opportunity to present any mitigating circumstance that might possibly have saved Barnett from an additional five years in prison. Any arguments that might be raised post-Booker about culpability, future dangerousness, offsetting good works, family obligations, or any other mitigating circumstance were also fair game pre-Booker, and these arguments for mitigation have been regularly invoked by defense counsels in pr e-Booker sentencing proceedings. United States v. Riascos-Suarez,73 F.3d 616 , 627-28 (6th Cir.1996) (finding reversible error when the defendant was not offered the opportunity to give mitigating evidence at sentencing). The Guidelines never placed any limits on the ability of the district court to consider these factors, so there is no reason to remand so the district court may consider additional circumstances.
United States v. Barnett,
For example, in this case the guidelines range was 97 to 121 months, a spread of two full years. Rodriguez,
Judge Tjoflat says that “we must assume, if anything, that a defendant such as Rodriguez would have done something different under the new model.” Tjoflat, J., dissenting, at 1291. There is no justification for that assumption, especially with a defendant such as Rodriguez who had two years worth of incentive built into the guidelines range to come forward with any § 3553(a) evidence or arguments at his pre-Booker sentencing proceeding. Even if we were to disregard the guidelines range incentive, the crucial assumption be
There is no basis for any assumption that the differences between an advisory and a mandatory guidelines system will favor defendants in general or, more importantly, a particular defendant. The fact is that in most cases, as in Rodriguez,
II.
Judge Tjoflat is correct about the Fourth and Sixth Circuits’ approach to this issue being wrong. See Tjoflat, J., dissenting, at 1297-98 n.19 (citing United States v. Hughes,
Since our Rodriguez opinion, the Fourth Circuit panel that issued the original Hughes decision has taken another look at it. That second look resulted in the issuance of a new opinion that reaches the same conclusion. See Hughes,
There is no longer any reason to doubt that the Fourth Circuit’s erroneous approach has at its core the premise that the mandatory nature of the guidelines is not an essential part of a Booker constitutional violation. This is the paragraph of its new Hughes opinion that lays bare the substructure of its reasoning:
Stated differently, the act of mistakenly treating the guidelines as mandatory is not part of the Sixth Amendment error before us, despite the fact that the former mandatory nature of the guidelines set the stage for the constitutional violation in Booker. That the erroneous treatment of the guidelines as mandatory is not part of the constitutional error can be seen most clearly in a post-Booker context. Suppose a district court, post-Booker, erroneously treats the guidelines as mandatory when imposing a sentence that rests in part on extra-verdict enhancements. Such a sentence would certainly be erroneous, but there would be no Sixth Amendment error because, regardless of what the district court thought, the guidelines post-Booker are in fact advisory and the sentence imposed did not exceed the maximum authorized by the jury verdict (which is, of course, the maximum set forth in the statute of conviction).
Hughes,
Treating the guidelines as mandatory is an essential part of the constitutional error, not a non-constitutional error distinct from the one involved in the Booker decision. The Supreme Court was unanimous about that. All nine Justices joined one or both of the majority opinions, each of which stated that the use of extra-verdict enhancements in an advisory regime is permissible and that if the guidelines are not applied mandatorily there is no constitutional error. Booker,
The hypothetical laid out in the part of the Hughes opinion quoted earlier highlights the Fourth Circuit’s misunderstanding of Booker. If a district court in the post-Booker world applies an extra-verdict enhancement and treats the guidelines as mandatory, of course the resulting sentence will be unconstitutional. The violation and its impact on the defendant will be identical to what occurred in the Booker case itself. That the constitutional violation and its impact occurs not in obedience to a statutory mandate but as a result of ignorance, negligence, or defiance does not make it any less a constitutional violation. Constitutional error can be committed free of statutory command. The effect, if any, on the defendant is the same if the same act is committed in the same circumstances regardless of the source of the error. If the guidelines are applied in a mandatory way when there are extra-verdict enhancements, the result is a pattern-perfect Booker constitutional violation.
The Fourth Circuit’s disregard of what the -Supreme Court said in Booker about
In addition to resting on a premise that is contrary to the stated belief in the Booker decision of every single Justice, the Fourth Circuit never adequately explains why the decision about whether a particular defendant has been prejudiced should not turn on • the one factor that will be changed on remand in order to avoid the constitutional violation. It never tells us how its rule about the third prong of the plain error test serves the main purpose of the prong’s prejudice requirement, which is to avoid wasteful reversals. See Dominguez Benitez,
III.
While cheering on Judge Tjoflat’s efforts to construct a structural error theory, Judge Barkett’s dissenting opinion also suggests that the Court has applied the wrong prejudice standard in these post-Booker plain error cases, or perhaps that we applied the correct standard in the wrong way. To the contrary, we have applied the correct standard correctly.
This is what we said in the panel opinion:
The third prong of the plain error test, however, is another matter. It requires that an error have “affect[ed] substantial rights,” which almost always requires that the error “ ‘must have affected the outcome of the district court proceedings.’ ” Cotton,535 U.S. at 632 ,122 S.Ct. at 1786 (quoting Olano,507 U.S. at 734 ,113 S.Ct. at 1778 ). The standard for showing that is the familiar reasonable probability of a different result formulation, which means a probability “ ‘sufficient to undermine confidence in the outcome.’ ” United States v. Dominguez Benitez,542 U.S. 74 ,124 S.Ct. 2333 , 2340,159 L.Ed.2d 157 (2004) (quoting Strickland v. Washington,466 U.S. 668 , 694,104 S.Ct. 2052 , 2068,80 L.Ed.2d 674 (1984)). In regard to this third prong, “[i]t is the defendant rather than the [government who bears theburden of persuasion with respect to prejudice.” Olano, 507 U.S. at 734 ,113 S.Ct. at 1778 .
Rodriguez,
The difference in views between this Court and Judge Barkett is not about the standard to apply. We all agree that the reasonable probability standard applies. The difference is how that standard applies when - we cannot tell whether the error caused prejudice. The Court’s position, which is set out in Rodriguez, Curtis, and Duncan, is that the defendant loses in this situation. That is so because the burden is on the defendant, and the Supreme Court in Jones v. United States,
Judge Barkett does not dispute that the defendant has the burden of showing prejudice; she just says that it does not really amount to any burden at all. Her view is that once there is error, the - defendant carries his burden of establishing prejudice by showing that we don’t know if the error prejudiced him. Barkett, J., dissenting, at 1298-99. In other words, nothing equals something; the burden is no burden at all. The adjective “oxymoronie” does not do justice to this “no-burden burden” concept.
Aside from robbing a perfectly good word (“burden”) of its plain meaning, this key premise of Judge Barkett’s position is also contrary to a number of our prior decisions applying the reasonable probability of a different result standard. See Straight v. Wainwright,
More importantly, Judge Barkett’s position cannot be reconciled with the specific holding and instruction of the Supreme Court’s decision in Jones. As we explained in the panel opinion, Jones is directly applicable to plain error third-prong situations in which it is unclear what effect, if any, the error had. Rodriguez,
Judge Barkett apparently does not dispute that the rule stated in Jones would
Judge Barkett argues that what the Supreme Court said in Jones is “in direct conflict” with what it said later in United States v. Dominguez Benitez,
By contrast, in Jones this very issue was presented, addressed, and decided. The Supreme Court could not have been more specific in telling us that where the error just as likely could have worked in the defendant’s favor as against him, where the effect is indeterminaté, where we simply cannot tell, the defendant has failed to carry his burden on the third prong of the plain error test. Dominguez Benitez states the general standard, and Jones speaks to a specific situation, the one before us in most of the pre-Booker sentence cases. The two decisions are not in conflict.
Reduced to its essence, Judge Barkett’s theory for disregarding the direct application of Jones is that it was implicitly overruled' by the later decision in Dominguez Benitez, a premise based on her belief that Jones rests on reasons rejected in Dominguez Benitez. The problem with her approach is that the Supreme Court has repeatedly told us not to take it. The Court has instructed us: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decision.” Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
We have been careful to heed the Supreme Court’s admonition about following its decisions until that Court explicitly overrules them. See Fla. League of Prof'l Lobbyists, Inc. v. Meggs,
Judge Barkett also argues that our approach violates the Federal Sentencing Act’s direction that the district court should determine in the first instance the sentence that should be imposed. Barkett, J., dissenting, at 1301. Not so. The district court has determined in the first instance the sentence in all pre-Booker sentence cases. The question now is not what the defendant’s sentence should be, but whether the defendant has carried his burden of establishing the prejudice required by the third prong of the plain error test.
Judge Barkett’s argument that Williams v. United States,
IY.
Neither Judge Tjoflat nor Judge Bark-ett proposes that this Court adopt the Second, Seventh, and D.C. Circuits’ novel
What the Second, Seventh, and D.C. Circuits do is remand every pr e-Booker sentence (where the defendant wants a remand) in which it is not clear that the unpreserved Booker error was harmless. Williams,
In the Second Circuit, if the district court determines on remand that it would have sentenced the defendant to less time under Booker, it is to pronounce that plain error exists, set aside the prior judgment, and proceed to conduct the real resentence proceeding. See Crosby,
The Seventh Circuit’s procedure is similar, except that it formally retains jurisdiction of the case during the remand and will be the court that actually vacates the pre-Booker sentence following the district court’s determination that it would have reached a different result under the Booker regime. See Paladino,
The Crosby/Paladino model essentially delegates to the district court the appellate function of determining whether there is prejudice necessary for correction of un-preserved error. There is no basis in any of the relevant Supreme Court decisions
The emotional punch behind the Seventh Circuit’s criticism of our approach derives from its charge that we are “condemn[ing] some unknown fraction of criminal defendants to serve an illegal sentence.” Paladino,
If “illegality” is defined this way and the goal is to prevent “illegal” sentences and convictions, the only way to achieve that goal is to abolish the contemporaneous objection rule. Not just in Booker error cases but in all criminal cases. We also will have to abolish and repeal the procedural bar doctrine which a half century of decisional law and federal statutory development has put into place. After all, by applying that doctrine, as we do in countless cases, we are condemning some unknown fraction of criminals to serve “illegal” sentences or to suffer from “illegal” convictions. And what of the thousands of prisoners condemned to suffer sentences that violate the Sixth Amendment under Booker, because their cases finished the direct review process before that decision was announced instead of afterwards. No circuit, including the Seventh, has yet to suggest that Booker is retroactively applicable to collateral proceedings, and in light of Schriro v. Summerlin,
Our legal system does not simply require that the government comply with the Constitution. It also makes parties, defendants as well as the government, comply with procedural rules, such as the contemporaneous objection rule, on pain of forfeiting legal rights they could otherwise enforce. Requiring rights to be asserted in a timely and appropriate fashion furthers interests that are vital to the proper functioning of our judicial system. See Wainwright v. Sykes,
If the matter is to be addressed in “illegality” terms, then put it this way: Failure of a defendant to comply with clear procedural rules during the judicial process is itself a type of illegality that may block consideration of his claim that he has suffered an illegality.
Notes
. In United States v. Olano,
. The eleven circuits in this count include the Ninth, although its Booker plain error decision has been vacated for rehearing en banc. See United States v. Ameline,
. A panel of the Sixth Circuit skipped the third prong and held that the fourth prong of the plain error test was not met in one case. United States v. Bruce,
. The language that Judge Tjoflat quotes from a footnote in our decision in United States v. Sanchez,
Judge Tjoflat expresses some surprise at the refusal of the panel opinion and its author to be impressed by that dictum from the Sanchez opinion. Tjoflat, J., dissenting, at 1296 n. 18. He shouldn’t be surprised, because it is well-established that dicta does not bind anyone. E.g., McDonald's Corp. v. Robertson,
The only thing that is truly surprising is Judge Tjoflat’s new-found respect for dictá, and his reliance on the dictum in the Sanchez opinion, Tjoflat, J., dissenting, at 1284-85, which comes after years of proclaiming himself not to be bound by dicta in this Court’s, or even the Supreme Court's, opinions. See, e.g., United States v. Smith,
. The Court in Jones was faced with the question of whether the defendant, who failed to properly preserve his objection, was entitled to a new sentence proceeding because of the district court’s failure to give a jury instruction.
The Supreme Court’s decision in Jones that the defendant had failed to make the required showing of prejudice for plain error purposes provided as much support for the result in that case, which was affirmance of the sentence, as did its decision that there was no error. Either holding would have been adequate. Each is an alternative holding, and each alternative holding is binding. See Massachusetts v. United States,
. Judge Barkett argues in a footnote that this Court’s Booker plain error position is somehow inconsistent with a footnote in United States v. Fuente-Kolbenschlag,
Dissenting Opinion
dissenting from the denial of rehearing en banc:
A jury in the United States District Court for the Middle District of Florida convicted Vladimir Rodriguez for distributing, or possessing with the intent to distribute, a “detectable amount” of MDMA, also known as ecstasy, in violation of 21 U.S.C. § 841(a)(1), and for conspiring to do the same, in violation of 21 U.S.C. § 846. At sentencing, the district court initially set Rodriguez’s base offense level at 30 based on its own determination that the offense involved 30,000 ecstasy tablets. It then added two levels because Rodriguez testified falsely, under oath during his trial that he had no involvement in the offenses for which he was convicted, U.S.S.G. § 3C1.1, and awarded a two-level reduction based on Rodriguez’s minor role in the offense, U.S.S.G. § 3B1.2(b). Because Rodriguez had no prior convictions, his guideline sentencing range was 97 to 121 months in prison. The court imposed a sentence of 109 months in prison.
After Rodriguez was sentenced, the Supreme Court held that the Federal Sentencing Guidelines violate the Sixth Amendment right to a trial by jury to the extent that they permit a judge to increase a defendant’s sentence based on facts that are neither found by the jury nor admitted by the defendant. United States v. Booker, — U.S. —,
Because Rodriguez did not raise a constitutional objection at sentencing, the
The panel’s error is its failure to recognize that Booker error of a constitutional dimension is one of a “very limited class” of “structural errors.” Johnson v. United States,
A harmless error is simply “[a]ny error ... that does not affect substantial rights.” Fed.R.Crim.P. 52(a). As such, the Supreme Court has said that harmless-error analysis and the substantial-rights prong of the plain-error test essentially “require[ ] the same kind of inquiry.” Olano,
A Booker error that involves an actual Sixth Amendment violation is a structural error. Booker dramatically alters the very “framework within which [sentencing] proceeds,” Fulminante,
The panel’s error is a serious one and warrants rehearing en banc. The Supreme Court instructed that “we must apply [BookeFs] holdings — both the Sixth Amendment holding and [its] remedial interpretation of the Sentencing Act — to all cases on direct review.” Booker,
Because the panel’s application, of the plain-error test is fundamentally flawed,-
I.
At the outset, it is important to understand that there are two different types of Booker error: “there is a constitutional error (based in the Sixth Amendment) when a judge enhances a sentence in a mandatory sentencing system based on
The distinction between Booker constitutional errors and Booker statutory errors is significant because the Booker Court indicated that the two must be treated differently. In Booker, the Court stated that “in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.”
Intuitively, it may seem odd to say that Booker constitutional errors are structural while Booker statutory errors are not. After all, the “framework within which [sentencing] proceeds,” id. at 310,
II.
Booker’s- implication that the constitutional error it corrects is structural is fully consistent with the Supreme Court’s structural error cases. As noted above, Fulminante defines structural error as a “constitutional deprivation[ ] ... affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.”
The starting point under both the old model (pre-Booker) and new model (post-Booker) of federal sentencing is 18 U.S.C. § 3553(a), which states that
[t]he .court shall impose a sentence sufficient, but not greater than necessary, ... (A) to reflect the seriousness of the offense, to promote respect for law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner[.]
18 U.S.C. § 3553(a)(2). In other words, the underlying goals of the statute and the Guidelines are “retribution, general deterrence, incapacitation, and rehabilitation.” United States v. Mogel,
Under' the old model, the district court was bound to sentence the defendant within the applicable guideline range unless it determined that
an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines ... should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court [could] consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.
18 U.S.C. § 3553(b)(1). Stated differently, the only way the defendant was going to get a downward departure under the old model was by showing that his case was not within the “heartland of typical cases.” Koon v. United States,
The comprehensiveness of the Guidelines and the invulnerability of the policy judgments on which they rest essentially rendered any evidence a defendant might present regarding the need for “adequate deterrence” or the need for “just punishment” irrelevant under the old model. The reason is simply that although reasonable minds may differ as to the level of punishment needed to adequately deter or justly punish a particular offense, once the Commission announced its views on the subject, it was difficult to argue that any particular case was atypical or outside the heartland with respect to these issues.
Because the Guidelines are merely advisory under the new model, the defendant is no longer limited to arguing that his case is somehow atypical. Such arguments, of course, remain viable, but under the new model the defendant can also simply concede that his case is typical and challenge the wisdom of the Commission’s judgment regarding the appropriate punishment in heartland cases.
the remedial majority in Booker [] directs] courts to consider all of the § 3353(a) factors, many of which the guidelines either reject or ignore. For example, under § 3553(a)(1) a sentencing court must consider the “history and characteristics of the defendant.” But under the guidelines, courts are generally forbidden to consider the defendant’s age, his education and vocational skills, his mental and emotional condition, his physical condition including drug or alcohol dependence, his employment record, his family ties and responsibilities, his socio-economic status, his civic and military contributions, and his lack of guidance as a youth. The guidelines’ prohibition of considering these factors cannot be squared with the § 3553(a)(1) requirement that the court evaluate the “history and characteristics” of the defendant.
United States v. Ranum,
The obvious answer is that we don’t know. If the district court judge in this case had the liberty of increasing or decreasing Rodriguez’s sentence above or below the guidelines range, he might have given Rodriguez a longer sentence, or he might have given a shorter sentence, or he might have given the same sentence. The record provides no reason to believe any result is more likely than the other. We just don’t know.
Rodriguez,
Before adopting such a rule, we should at least consider what in the record might have “provide[d] ... reason to believe” that a lesser sentence would have been imposed had Rodriguez been sentenced under the new model. At the sentencing hearing, the defendant might have argued that his guideline sentence was “greater than necessary” to achieve the sentencing purposes identified in § 3553(a). More specifically, the defendant might have presented the district judge with law-enforcement data tending to show that the need for general deterrence is low with respect to his particular offense and in his particular community, and that his guideline range is therefore unnecessarily high. Alternatively, the defendant might have argued that his personal history or circumstances somehow render him less culpable or less likely to commit future crimes than the Guidelines suggest. Of course, none of this type of evidence or argument is likely to be found in the record of a pre-Booker hearing.
Any attempt to assess prejudice resulting from Booker error is, therefore, pure guesswork. In cases involving statutory error only, it is necessary guesswork, for the Supreme Court has clearly indicated that the harmless-error and plain-error
I am thus firmly convinced that Booker constitutional error is structural error. In the next Part, I explain the significance of this conclusion in the plain-error context.
III.
It is clear that structural errors are not subject to harmless-error analysis and therefore always require reversal if a timely objection is made. Fulminante,
That structural errors should not be subject to substantial-rights analysis seems obvious to me. Indeed, Federal Rule of Criminal Procedure 52, read in light of the Supreme Court’s structural-error cases, compels this conclusion. Rule 52(a) defines harmless error as “[a]ny error ... that does not affect substantial rights.” And Rule 52(b) says that we may correct “[a] plain error that affects substantial rights.” Thus, when the Supreme Court said that structural errors “defy analysis by ‘harmless-error’ standards,” Fulminante,
Because structural errors are not subject to substantial-rights analysis, the panel’s reliance on Jones v. United States,
assuming that the jurors were confused over the consequences of deadlock, petitioner cannot show the confusion necessarily worked to his detriment. It is just as likely that the jurors, loath to recommend a lesser sentence, would have compromised on a sentence of life imprisonment as on a death sentence. Where the effect of an alleged error is so uncertain, a defendant cannot meet his burden of showing that the error actually affected his substantial rights.
Id. at 394-95,
It is clear that Jones did not involve structural error and, therefore, does not resolve this case. Instead, Jones announces a general rule of thumb that the defendant loses if we can only speculate as to whether he was prejudiced by an ordinary trial error to which did not object. Jones would not apply if, for example, the judge forgot to give a reasonable-doubt instruction and the defendant did not object; that is, we could not say, “Well, the defendant did not object, and we just don’t know what, if any, prejudice this omission caused him, so he fails the plain-error test.” Because Booker constitutional error is also structural error, Jones does not apply here either.
IV.
As Judge Carnes says, no federal court has explicitly held, as I would, that Booker constitutional error is structural error. Ante, at 1262 -64. While technically accurate, this statement is at least a little misleading. After all, the Third, Fourth, and Sixth Circuits appear to think that every Booker constitutional error affects substantial rights, which is really all that calling such error “structural” means in the plain-error context. See, e.g., United States v. Spivey,
In Booker, the Court instructed that “in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.” Booker,
Judge Carnes then argues that “[t]here are all kinds of problems with [my] theory.” Ante, at 1265. He says that it contradicts the Booker Court’s expectation that we “apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the ‘plain-error’ test.” Booker,
Judge Carnes next attacks my distinction between constitutional errors and statutory errors, arguing that it lacks support “in law or logic.” Ante, at 1267. Apparently, he thinks that there is no difference between a case in which the defendant’s constitutional rights were violated and a case in which they were not. I think that there is. The Supreme Court seems to think so, too. See Booker,
Judge Carnes then relies on Sanchez, arguing that its holding “that Apprendi error is not structural answers the question of whether Booker error is structural, because Booker is an application of Apprendi once removed.” Ante, at 1268. This statement is obviously wrong. Because the Guidelines were still binding post-Apprendi, a court reviewing Appren-di error could simply determine whether the evidence supporting any judicial fact-finding was so clear that failure to submit the issue to a jury was harmless; if it was, then the error was harmless precisely because the Guidelines were still binding. But post-Booker, even if the evidence supporting all facts found by the judge is overwhelming, we can still only guess as to what sentence the judge might have imposed under an advisory-guideline regime. We, therefore, cannot know whether the error affected the defendant’s substantial rights. This is why Booker constitutional error is structural even though Apprendi error was not. Unlike Booker, Apprendi did not fundamentally alter the sentencing framework, and the effects of Apprendi error were just as determinable as the effects of any other sort of trial error. Indeed, a panel of this court, in an opinion Judge Carnes joined, has already observed that “Blakely error in the Sentencing Guidelines context ... was judicial versus jury fact-finding of sentencing enhancements and is entirely different from the error we now know to exist under Booker as to the Sentencing Guidelines.” United States v. Shelton,
In sum, my opinion is not nearly so novel as Judge Carnes suggests, it does not depend on any monumental inferential leap, and it is entirely consistent with the Supreme Court’s opinion in Booker. The distinction I draw between constitutional and statutory Booker errors has ample support in law and logic; in fact, it is not even unprecedented in this circuit. Finally, Judge Carnes’s opinion is grounded in large part on the faulty assumptions that Apprendi error and Booker error are essentially the same and that Booker really won’t do that much to change the type of the evidence and argument presented at federal sentencing hearings.
V.
I tend to agree with the panel in this case that we cannot automatically equate prejudice with the imposition of extra-verdict sentencing enhancements, since these same enhancements must be considered under the new model.
The panel errs by accepting Booker’s invitation to “apply ordinary prudential doctrines” without following its implicit instruction as to how they should be applied. Id. As a result, it erroneously requires Rodriguez to prove an effect on his “substantial rights.” This an important issue because the panel’s opinion imposes a virtually impossible burden on a large class of defendants whose cases are still in the pipeline on direct appeal. Our rule will “condemn some unknown fraction of criminal defendants to serve an illegal sentence.” Paladino,
. This "very limited class" includes (1) a total deprivation of the right to counsel, (2) the lack of an impartial trial judge, (3) the unlawful exclusion of grand jurors of the defendant's race, (4) the denial of the right to self-representation at trial, (5) the denial of the right to a public trial, and (6) an erroneous reasonable-doubt instruction. Johnson,
. In contrast, the Court has described ordinary "trial error” as "error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” Fulminante,
. See infra note 13.
. The First and Fifth Circuits have committed the same error. See United States v. Antonakopoulos,
. In the same paragraph, the Court also emphasized that "not ... every sentence gives rise to a Sixth Amendment violation.” Booker,
. This question whether non-constitutional errors can ever be structural errors has engendered much disagreement within several other circuits. Compare United States v. Curbelo,
. See, e.g., Neder v. United States,
. Professor Stith and Judge Cabranes further observe that "with respect to commonly occurring circumstances that are not explicitly addressed by the Guidelines,” courts generally "assume! ] that the Commission has already taken the matter into account.” Stith & Cabranes, supra, at 102. That is, if the circumstance is not rare, the Commission must be aware of it and therefore its omission must mean that the Commission does not think it significant to sentencing policy. Thus, "[t]he real question is not whether the Commission actually took some factor into account,' but whether the factor is rare enough to overcome a presumption that the Commission has taken it into account.” Id. at 102-03 (citing Koon,
. See, e.g., United States v. Davis,
.See, e.g., United States v. Jaber,
. Courts may be particularly likely to disagree with guideline ranges deriving from base offense levels tied to drug quantities or dollar amounts, which have long been the subject of criticism. Post -Booker, several district courts have already indicated as much. For example, one district court has announced,
[T]he Guidelines are based in part on statistical analyses of pre-Guidelines sentencing practices. Based on those statistics, the Commission established the offense levels for each crime, linked to a recommended imprisonment range. Accordingly, in many cases, the Guidelines represent a reasonable estimation of a fair sentencing range.
However, for policy reasons and because statutory mandatory minima dictated many terms of the drug-trafficking guidelines, the Commission departed from past practices in setting offense levels for such crimes as fraud and drug trafficking. Consequently, and based also on its own experience and familiarity with state court sentencing, the court finds Guideline ranges of imprisonment for those crimes are less reliable appraisals of fair sentences.
The Guidelines' quantity-driven, "market-oriented” approach also contributes to disparity and unreliability in drug sentencing. The quantity system was developed to punish bigger distributors more harshly, but practices of charging conspiracies over a long period of time has the result of aggregating many small distributions so as to make a long-term small quantity distributor look like a large-quantity distributor. For example, a distributor responsible for selling one gram at a time a hundred times gets the same sentence as the dealer caught selling 100 grams only once.
Huerta-Rodriguez,
[I]t is worth pointing out that under the guidelines, the weight of the narcotics is the driving force behind the sentence. The government is well aware that for every controlled buy that is made, the quantity of drugs is increased, and so is the sentence. There is a randomness to this in the following sense: [the defendant’s] guideline range would have been significantly decreased if he was arrested after the first [undercover] buy ... and not after the fourth buy. Under the guidelines, this fortuity increased [his] guidelines range from 87-108 months ... to 168-210 months. Indeed, on the other hand, if the officers wanted to, they probably could have made additional controlled buys from [the defendant] and the total weight of the drugs attributable to him would have been even higher and so too his sentence under the guidelines. It is ... difficult to ignore the random nature of how the system plays out in reality.
Nellum,
. See, e.g., United States v. Lacy, 99 F.Supp.2d 108, 112 (D.Mass.2000) (footnotes omitted):
[W]hile the Guidelines' emphasis on quantity and criminal history drives these high sentences, sadly, other factors, which I believe bear directly on culpability, hardly count at all: Profound drug addiction, sometimes dating from extremely young ages, the fact that the offender was subject to serious child abuse, or abandoned by one parent or the other, little or no education. Nor may I consider the fact that the disarray so clear in the lives of many of these defendants appears to be repeating itself in the next generation: Many have had children at a young age, and repeat the volatile relationships with their girlfriends that their parents may have had. And I surely cannot evaluate the extent to which lengthy incarceration will exacerbate the problem, separating the defendant from whatever family relationships he may have, or the impact on communities when these young men return.
. Alternatively, if "the district court during senténcing expressed several times its view that the sentence required by the Guidelines was too severe,” stated that it was "unfortunate[]” that the Guidelines overstated the seriousness of the defendant's criminal history, imposed the lowest possible sentence under the Guidelines, and remarked that even that sentence was "more than appropriate,” then the defendant will satisfy the Rodriguez standard. United States v. Shelton,
. Rodriguez did, however, object to the district court's calculation of the number of ecstasy tablets involved in the offense. The Eighth Circuit "has held that when a defendant objects to a District Court's determination of drug quantity at sentencing, the defendant preserves a Booker-based challenge to his sentence and is entitled to a new sentencing proceeding.” United States v. Sdoulam,
. Judge Carnes says that my approach to the plain-error test will result in all sentences involving constitutional error being vacated. This is so, he says, because "Shelton effectively adds that where the third prong of the plain error test is met in [Booker] cases, the fourth one will be also.” Ante, at 1262 (citing Shelton,
A plain error affecting substantial rights does not, without more, satisfy the plain-error test, for otherwise the fourth prong and the discretion afforded by the fourth prong would be illusory. We conclude that the fourth prong is established here and that an exercise of our discretion is warranted in this particular case.
The district court in this case indicated an express desire to impose a sentence lesser than the low end of the Guidelines range of 130 months' imprisonment, and the Supreme Court in Booker plainly indicated that the district court now has the discretion to do so, provided the resulting sentence is reasonable in light of the § 3553(a) factors. Under these circumstances, defendant Shelton has carried his burden to establish the fourth prong and has shown that the plain error that affected his substantial rights also seriously affected the fairness, integrity or public reputation of the judicial proceedings in his particular case. Accordingly, we vacate Shelton’s sentence and remand for resentencing consistent with Booker.
Shelton,
I do expect that in most cases the defendant will also satisfy the fourth prong of the plain-error test if he is able to satisfy the third prong. But if, for example, the Government could show that the district court expressed a strong desire to impose a more severe sentence than the Guidelines permitted because of circumstances not easily countered by mitigating evidence, declining to correct the plain error would not lead to a "miscarriage of justice.” Of course, under the panel’s approach, such a defendant would never get past the third prong of the plain-error test anyway. As such, part of the reason Judge Carnes thinks that my approach would mean that all sentences involving constitutional error would satisfy the plain-error test is a direct result of an aspect of the panel opinion with which I disagree and would not follow.
I also note that, addressing statutory error only, the Tenth Circuit recently rejected the proposition for which Judge Carnes reads Shelton to stand:
As a preliminary matter, we note that in the wake of Booker several courts of appeals have collapsed the third and fourth prong analyses. That is to say, if these courts find the third prong satisfied, they conclude that the fourth prong is met as a matter of course. We cannot subscribe to this approach. The Court in Olano clearly held that "a plain error affecting substantial rights does not, without more, satisfy the ... standard, for otherwise the discretion afforded by Rule 52(b) would be illusory.”
Gonzalez-Huerta,
Judge Carnes further argues that it would be "difficult to justify a conclusion that an error that is structural does not 'seriously affectf ] the fairness, integrity or public reputation of judicial proceedings,’ ” and that, "[s]o far as can be discovered, no court has ever actually” reached such a conclusion. Ante, at 1266 (quoting Olano,
. Moreover, in the same paragraph, the Court also stated, "[W]e must apply today's holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act' — to all cases on direct review. That fact does not mean that we believe that every sentence gives rise to a Sixth Amendment violation.” Booker,
. The Tenth Circuit has also noted the distinction between constitutional and non-constitutional Booker errors. See Gonzalez-Huerta,
The error of which [the defendant] complains is not the substantive error first recognized in Blakely and which Booker sought to eliminate — namely, that the Sixth Amendment is violated when a judge, rather than a jury, finds facts that mandatorily increase a defendant’s sentence. Rather, the error in [this] case — that the District Court applied the Guidelines mandatorily— is only error insofar as it runs afoul of the Court's remedy for the unconstitutional implications of the Guidelines. This disconnect between the constitutional violation and the remedy makes Booker unique.... The fortuity of the Court's choice to excise 18 U.S.C. § 3553(b)(1), instead of a remedy more directly related to the underlying constitutional problem, is key to our determination that the District Court's erroneous— although not constitutionally erroneous— mandatory application of the Guidelines is not particularly egregious or a miscarriage of justice.
Gonzalez-Huerta,
. Judge Carnes may be correct that Sanchez’s statement is "pure dicta.” Ante, at 1267 n. 4. As such, I do not suggest that he is "bound” by it. Id. My only surprise is that what this court said — in an en banc opinion that Judge Carnes joined — less than four years ago is today thought so obviously wrongheaded.
. This is essentially the position taken by the Fourth and Sixth Circuits. E.g., United States v. Hughes,
The Second, Seventh, and D.C. Circuits have adopted the novel approach of remanding all Booker cases to allow the district court to determine whether the defendant's substantial rights were affected so as to require a new sentencing hearing. See United States v. Coles,
Dissenting Opinion
dissenting from denial of rehearing en banc:
As an initial matter, I agree with Judge Tjofiat that the issue presented here is eminently worthy of en banc review. Furthermore, I find his reasoning extremely persuasive. However, even assuming that constitutional Booker error is not “structural,” I believe that the panel erroneously applies Jones v. United States,
Rodriguez
In Dominguez Benitez, the Supreme Court specifically clarified: (1) that a defendant proves that an error affects his substantial rights by establishing a “reasonable probability” that, but for the error, the outcome of the district court proceedings would have been different;
I agree that the defendant bears the burden of proving this “reasonable probability.” However, I believe the defendant meets this burden by showing that: (1) the guidelines were mandatory and that nothing in the record indicates that the district court applied the guidelines in a non-mandatory fashion;
Although the panel repeatedly cites to the “reasonable probability” standard of Dominguez Benitez as the touchstone of its inquiry, talismanic repetition of the proper standard does not necessarily translate into its faithful application. Despite the panel’s repeated assertions to the contrary, id.,
if it is equally plausible that the error ivorked in favor of the defense, the defendant loses; if the effect of the error is so uncertain that we do not know which, if either, side it helped the defendant loses. Where errors could have cut either way and uncertainty exists, the burden is the decisive factor in the third prong of the plain error test, and the burden is on the defendant.
Id. at 1300 (emphasis added).
Requiring a quantum of proof beyond equipoise is the preponderance of the evidence standard. Under the preponderance of the evidence test, the defendant loses when the evidence is in equipoise because he did not present that slight quantum of evidence necessary to tip the balance from equipoise to his favor. See, e.g., Nat’l Lime Ass’n v. Envtl. Prot. Agen
To support this de facto preponderance of the evidence standard, Rodriguez reaches back to the 1999 decision Jones v. United States,
Obviously, we cannot hold that the Supreme Court has implicitly overruled Jones in Dominguez Benitez. Rodriguez de Quijas v. Shearson/American Express Inc.,
The Supreme Court offers little guidance, if any, about the role of a Court of Appeals when faced with conflicting precedent, although Justice Scalia has recognized that such situations do arise. Kaiser Aluminum & Chem. Corp. v. Bonjorno,
It is hard to see why we would not decide that Dominguez Benitez, and not Jones, is the controlling case here. Whereas Jones simply noted that, even if a constitutional violation did exist, the defendant’s showing would not satisfy the “substantial rights” prong under the facts in that case,
Thus, Dominguez Benitez, not Jones, embodies “the general rule of construction” relating to plain-error review. Moreover, it is more likely that a majority of the Supreme Court would determine that Dominguez Benitez applies to this case instead of Jones. Eight members of the Court signed the majority opinion in Dominguez Benitez, including the author of Jones and three of the four Justices who signed his opinion. In contrast, only five members of the Court made up the Jones majority. Further, in Jones the Supreme Court actually held that there was no error of law in the first place, and that any hypothetical error had been mitigated by the district court. Jones,
Essentially, in cases like Rodriguez, where the defendant can prove that Booker error denied him a constitutionally-mandated process and that the outcome of that process cannot be known until the process actually takes place, a defendant sufficiently undermines our confidence in the outcome of his sentencing to meet the prejudice prong. See, e.g., United States v. Paladino,
Moreover, I believe that the result the panel reaches impermissibly trenches upon the Federal Sentencing Act’s policy of allowing “the district court, not the court of appeals, to determine, in the first instance, the sentence that should be imposed in light of certain factors properly considered under the Guidelines.” Williams v. United States,
If the court of appeals determines that —
(1) the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate!!]
18 U.S.C. § 3742(f)(1) (2004). The Williams Court underscored the impor
Moreover, the Third Circuit held, pre-Booker, that this policy consideration precluded speculation about the sentence a district court would impose upon remand when determining whether a guidelines sentencing error affected a defendant’s “substantial rights,” making such errors presumptively prejudicial. In United States v. Knight,
Other pre-Booker precedent also presumed prejudice in cases when a sentencing error’s effect on the length of a defendant’s sentence was extraordinarily difficult to ascertain. See, e.g., United States v. Plaza-Garcia,
Accordingly, I respectfully dissent from the denial of rehearing en banc.
. United States v. Rodriguez,
. Dominguez Benitez,
. Id. (internal quotation marks omitted) (citing Strickland v. Washington,
. Id. at 2342 (Scalia, J., concurring in the judgment) (emphasis added); see also id. at 2340 n. 9 ("The reasonable-probability standard is not the same as, and should not be confused with, a requirement that a defendant prove by a preponderance of the evidence .that but for error things would have been different.”).
. For example, in Booker, the district court in defendant Fanfan's case did not apply applicable provisions of the guidelines even though they were mandatory at the time. United States v. Booker, - U.S. -,
. Judge Carnes argues that my reading of the "reasonable probability” standard differs from prior Circuit case law. He states that we have held in several cases that a defendant failed to meet the "reasonable probability” standard when there was no evidence on the record that an alleged error prejudiced him. Ante, at 1275-76 (Carnes, J., concurring in denial of reh’g en banc). However, I do not believe that any of the cases he cites are of particular significance to the inquiiy here. In each case there was record evidence contradicting the defendant's claims of prejudice.
In Henry v. Wainwright, the judge failed to instruct the jury about the consequences of a 6-6 split over whether to sentence the defendant to death.
In Rodriguez, in contrast, the defendant’s theory of prejudice requires no such flights of fancy. We are certain that the district court erred, and the chance that this error prejudiced the defendant is quite real — just as likely as not, as the panel itself admits. Further, there is no evidence on the record in Rodriguez contradicting a showing of prejudice.
. Indeed, that doctrine applies to situations, unlike this one, where one Supreme Court case is unmistakably on point, but where the rationale underlying that decision has been
. It would appear that we are encountering the difficulty of applying the various standards for analyzing "prejudice” that Justice Scalia predicted in Dominguez Benitez,
. Indeed, this circuit has expressed similar concerns. In determining that a defendant could appeal a sentence enhancement where the sentence also fell within the guidelines range he had advocated before the district court, we said that we were "not willing to speculate as to whether appellant’s sentence would have been the same without the enhancement. In our view, that determination is for the district court in the first instance.” United States v. Fuente-Kolbenschlag,
Lead Opinion
ORDER:
The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular-active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), rehearing en banc is DENIED.