United States v. Vladimir Rodriguez

court for further consideration. ed to this — U.S. Jardine v. United See America, STATES UNITED —, 1024, 160 L.Ed.2d 1008 125 S.Ct. Plaintiff-Appellee, (2005). result, requested supple we As of Booker. briefing light mental Defendant-Appellant. JARDINE, Andy for re- requests that we remand Jardine No. 02-8110. government and concedes error in this the existence of constitutional Appeals, Court United States to the district urges case and us to remand Tenth Circuit. with re-sentencing accordance court for 12, 2005. May Accordingly, Booker. REINSTATE portion for previous opinion except our Mead, Attorney, Office H. Matthew sentence, RE- affirming Jardine’s Attorney, Cheyenne, of the United States re-sentencing in accordance MAND for Kubichek, WY, David A. Sharpe, K. Steven issue with Booker. The mandate shall of the United Attorney, Office Asst. U.S. forthwith. WY, Plaintiff- Attorney, Casper, Appellee. WY, Miller, Casper, for De- A.

Corinne

fendant-Appellant. PORFILIO, LUCERO,

Before

TYMKOVICH, Judges. Circuit REMAND ON

ORDER America, STATES of UNITED TYMKOVICH, Judge. Circuit Plaintiff-Appellee, violat- Andy A Jardine of jury convicted pre-sentence 922(g). ing 18 U.S.C. (PSR) en- recommended several

report RODRIGUEZ, Defendant- Vladimir sentence, to which to Jardine’s hancements Appellant. objected on factual and constitutional he court his The district overruled grounds. No. 04-12676. ultimately sentenced Jar- objections and Appeals, Court of United States imprisonment. months dine Eleventh Circuit. timely appeal fñed Jardine his alleging the sentence violated court April We affirmed Jar- rights. constitutional Walsh, Miami, FL, for Defendant- Lisa States v. Jar sentence. See United dine’s Appellant. Cir.2004). dine, Jar F.3d 1200 petition for writ of timely then filed dine FL, for Hoppmann, Tampa, B. Karin with the Court certiorari Plaintiff-Appellee. vio asserting his sentence United States rights. After his constitutional lated Booker, decided United States

— U.S. —, 738, 160 L.Ed.2d (2005), remand- granted the writ and error

lines scheme is Sixth Amendment plain. Rodriguez, 398 F.3d Duncan, 1304; 1298-99; 400 F.3d at Cur tis, to our 400 F.3d at 1335. Shelton adds EDMONDSON, Judge, Chief Before while pr circuit law the rule that e-Booker ANDERSON, BIRCH, TJOFLAT, and en sentencing free of extra-verdict CARNES, DUBINA, BLACK, is not a violation of the Sixth hancement HULL, MARCUS, BARKETT, WILSON Amendment, statutory it is error under PRYOR, Judges. and Circuit part remedial of the Booker decision. Shelton, upshot 400 F.3d at 1330-31. ORDER: two of our four decisions is the first four-prong plain test prongs of the error having polled at the been pr in all e-Booker are met of the request of one the members holding To that common Shelton cases.1 majority Judges of the Court and Circuit effectively prong adds that where the third hav- regular-active who are in service not in plain of the error test is met these (Rule 35, of it Federal ing voted in favor cases, the fourth one will be also. See id. Procedure; Eleventh Appellate Rules at 1333-34. Because the effect Booker 35-5), rehearing en banc is Circuit Rule regardless type, error is the same of the DENIED. our decisions make no functional distinc tion between constitutional and CARNES, Judge, concurring in Circuit purposes plain error. For of the error rehearing the denial of en banc: rule, unpreserved unpreserved er error is in rehearing With its denial of en banc ror. case, intact our this this Court left decisions, our Under where plain circuit law on Booker error as appeal for the time issue is raised first case, in panel laid out our decision prong plain the third error test will 1291 Rodriguez, States v. United in explained the decisive one. As (11th Cir.2005), our decisions panel opinion, our Court has Duncan, 400 1297 United States v. prong requires instructed us that the third (11th Cir.2005), Shelton, v. United States that an error “affect[ed] substantial (11th Cir.2005),

400 F.3d 1325 and United rights,” always which almost means that Curtis, States v. 400 F.3d 1334 Cir. the error “must have affected the outcome 2005) curiam). (per proceedings.” of the district court Rodri decision, Rodriguez Our which fol guez, (quoting F.3d at 398 1299 Curtis, Olano, 725, 734, lowed Duncan and establishes 507 U.S. (1993)). 1770, 1778, that the use of extra-verdict enhancements 123 L.Ed.2d 508 pr mandatory guide- showing prejudice under the e-Booker The standard for is the Olano, In United States discretion to notice a forfeited but (4) fairness, (1993), 'seriously L.Ed.2d 508 the Su if affects preme satisfy integrity, public reputation judicial pro Court held that in order to " test, ceedings.’ defendant must demon Johnson v. United (1) error, (2) (3) plain, strate that is U.S. (1997) (internal omitted) rights. affects substantial Id. at L.Ed.2d 718 marks Olano, (quoting S.Ct. at "If three S.Ct. at 1777-79. all conditions are met, 1776). appellate court then exercise its if probability prong of a differ the third were. The bottom line familiar reasonable formulation, approach a of his is automatic ent result which means reversal of “ every pr ‘sufficient to undermine confi e-Booker sentence which there probability proceeding.” was an extra-verdict dence the outcome’ enhancement. That Benitez, Dominguez approach does offer the attraction United States of re 2333, 2340, workload, ducing L.Ed.2d this Court’s U.S. because (2004) Washing nothing is easier to (quoting apply Strickland than an automat ton, 668, 694, ic rule that dictates the same result re (1984)). critical gardless application 80 L.Ed.2d 674 Of of the facts. Ease of aside, the defendant importance, proposed “[i]t is rather legally rule not [g]overnment than the who bears the bur logically appropriate in pr e-Booker persuasion respect preju den of to No judge sug area. other has ever even Olano, dice.” 507 U.S. at 113 S.Ct. at gested theory, except in the course rejecting it. adopt per Our four decisions do not a se Contrary Tjoflat’s belief, Judge it prong rule about whether the third of the simply is not true that “the real dif in plain pr error test will be met e-Booker approach ference” between his Instead, sentencing cases. the result de- Third, Fourth, and Sixth Circuits is should, pends, as it on the facts of the satisfactory that his “offers a more ratio reason, entirely case. For that it is consis- Tjoflat, J., nale for its result.” See dis Duncan, Rodriguez, tent for and Curtis to senting, 1293. While the situation in in have concluded the defendants unclear, the Third Circuit is under the carry did not those three eases their bur- Fourth and Circuits’ approach, Sixth sen establishing prong den of the third of the involving tences Booker constitutional er test, plain error while Shelton concluded may upheld ror under the harmless the defendant that case did. See, e.g., error doctrine. United States v.

Tate, (6th Cir.2005) Fed.Appx. Bethea, (unpub.); United States v. No. 04- I. *1 Apr.8, WL Cir. 2005) Judge Tjoflat (unpub.). Judge Tjoflat would have this As con cedes, a adopt per prong approach pre se rule that the third his structural error plain every application error test is met case of cludes of that harmless error J., Tjoflat, pr dissenting, e-Booker constitutional and he doctrine. See (“[Structural in way pre- ‘defy analysis would do it a that would also errors application clude of the harmless error “harmless-error” standards’ and are per objection doctrine even in the most extreme case. if an se reversible made trial.”) Fulminante, (quoting His thesis is that a Booker constitutional Arizona v. defect, 279, 309, error is a structural error or and 499 U.S. (1991)).

for that reason there is no need for the L.Ed.2d 302 No matter how clear third-prong prejudice be from the record that the defen show plain purposes. Judge Tjoflat dant would not have received a lesser sen tence, pr pr brands all e-Booker sentences which e-Booker sentence that involved “illegal,” there was constitutional error an extra-verdict enhancement could not be analysis if plausible why and he offers no reason affirmed under harmless error None prong suggestion. fourth of the test would be met we followed his not Judge Tjoflat says circuits to address Booker eleven other the Court did. him, According error issues have taken such an ex- the last sentence of Jus- Breyer’s majority opinion tice approach.2 treme remedy about dealing tells us that we are expressly rejected The First Circuit with structural error. To see mes- Tjoflat’s theory structural of Booker sage opinion the last sentence of that plain error. This what that Court said just requires reading glasses a set of about it: imagination. but also vivid Rather than context, take the sentence out of it is best Nor is this structural error. cer out paragraph the entire last set. cases, tain structural error those which opinion: the fairness of a criminal “undermin[e] whole,” proceeding errors can be indicate, dispositions As these regardless an corrected individualized apply today’s holdings must —both showing prejudice to the defendant. holding Sixth Amendment and our re- Benitez,

Dominguez 2339; 124 S.Ct. at interpretation medial Sentencing Olano, 735, 1770, 507 U.S. at 113 S.Ct. Act—to all cases on direct review. That 508; 123 L.Ed.2d see Arizona v. Fulmi fact not does mean that we believe nante, 279, 309-310, 499 U.S. 111 S.Ct. every gives sentence rise to a Sixth 1246, (1991) 113 L.Ed.2d 302 (providing Amendment violation. Nor do we be- error). examples of structural Because every lieve that appeal will lead to a new sentencing under a mandatory system is sentencing hearing. That is because we not error that “undermines the fair expect reviewing courts apply ordi- proceeding ness of a criminal as a nary doctrines, prudential determining, whole,” above, as we discuss a Booker example, for whether the issue was error; type error is not a structural raised below and whether it fails the defendant must convince us of prejudice. “plain-error” because, test. It is also Indeed, majority had the in Booker involving cases not a Sixth Amendment thought error, there was structural violation, resentencing whether is war- would have said so. ranted or whether it will instead be suf- ficient to review a for reason- United States v. Antonakopoulos, 399 F.3d may depend upon application ableness (1st 68, Cir.2005); 80 n. 11 see also United the harmless-error doctrine. Gonzalez-Huerta, States v. 403 F.3d (10th Cir.2005) 2005 WL *4 Booker, —, United States v. (en banc) (holding that statutory Booker 738, 769, (2005) 125 S.Ct. 160 L.Ed.2d 621 structural); error is not (internal Knox v. United omitted). citations States, (7th Cir.2005) 400 F.3d Focusing sentence, on the last (explaining why Apprendi error is not 1) Tjoflat reasons that: because the Su- structural). preme explicitly Court said that the harm- response to the First Circuit’s rea- applies less error doctrine soning that if error, Booker error were structural Booker the Court must have meant Supreme so, Court would have said that the harmless error doctrine does not Ameline, 2. The eleven circuits in this count include the See United States v. Ninth, although (9th Cir.), plain reh’g its Booker error granted, deci- en banc rehearing Cir.2005). sion has been vacated for en banc. F.3d 1007 2) error; “sparingly,” error should be exercised Booker constitutional apply Jones v. United error doctrine does the harmless because 2090, 2102, 144 L.Ed.2d 370 Booker to constitutional apply (1999), only “in those circumstances error must be structural type this justice miscarriage which a would other- 3) nature; constitutional because result,” Olano, wise 507 U.S. at nature, all error is structural omitted). (internal quotation at 1779 to the error amounts constitutional Booker Judge Tjoflat’s position directly contra- plain for rights of substantial deprivation Supreme dicts belief that Court’s some much been Never has so purposes. cases, involving Booker error even those from so little. inferred violations, Sixth Amendment will be af- problems all kinds of There are the defendants cannot sat- firmed because with, begin upon it is based theory. To isfy rigorous requirements plain Judge Becker and as negative pregnant, error test. Circuit, the Third once observed Judge Tjoflat’s theory structural contra- Supreme instruction from “drawing stated belief of the dicts that negative use of the through the

passages Court, theory the third because under his unsatisfactory.” risky and pregnant always test will prong (3d Kyler, 204 F.3d Brooks v. there is Booker constitu- satisfied where Cir.2000). doing particularly so is Here prong And the third is the tional error. it has the effect of unsatisfactory because Every court to address the one. decisive in contradicting a more direct statement error satis- agreed has that Booker matter opinion. of the same paragraph the same error prongs plain fies the first two the immediately preced- In the two sentences Likewise, to address test. all of the courts Supreme ing question, the one the prong the fourth met the issue have found will every appeal said that Booker Court error cases where Booker constitutional sentencing hearing “be- not lead to a new third is satisfied. See United prong expect reviewing apply courts to cause we (6th Oliver, 397 F.3d 380-81 States v. doctrines, determin- ordinary prudential Cir.2005); Hughes, v. United States ing, example, for whether the issue was (4th Cir.), amended on F.3d 380-81 ‘plain- it fails the raised below and whether (4th Cir.2005); reh’g by 401 F.3d 540 Unit- Booker, 125 S.Ct. 769. error’ test.” Ameline, 646, 654-55 ed v. 400 F.3d States (9th Cir.), reh’g granted, en banc F.3d Supreme In that Court ex- Shelton, Cir.2005); 400 F.3d at in- that some sentences pressed its belief Coles, 1333-34; F.3d United States would be affirmed volving Booker error (D.C.Cir. 764, 766, *3 2005 WL satisfy not the defendant could because 2005) curiam); Apr.8, (per see also United test. The Court’s stated belief plain error (3d Davis, 173, 183 plain error test rigors Cir.2005).3 is out some Booker error cases would weed any per- given previously Judge Tjoflat provide does not surprising believing that the fourth basis for power plain that the to notice suasive instructed us However, (6th Cir.2005). the Sixth Circuit panel skipped the 3. A of the Sixth Circuit is decided that the Bruce decision prong prong of has since third and held that the fourth because it conflicts with one case. not to be followed plain error test was not met in Bruce, Circuit decision of another Sixth the earlier United States v. prong fails to meet the fourth will not be al but plain error test prong of the if, may much it plain as he con error test. However matter of course met as a error tends, appeal constitutional from the of the Booker Booker detract Supreme Court said theory, fact structural. structural that structural errors Dominguez Benitez certainly theory will almost adopting criminal fairness of á “undermin[e] regard to the result reversal without S.Ct. proceeding as whole.” That is what of an individual case. facts Supreme another Court Quoting approach generally the structural Tjoflat Judge “[b]e- insists opinion, rarely and is one reason it is so does the frame error affects cause structural applied. itself, ‘consequences of the trial its work Tjoflat’s position result of in necessarily unquantifiable and ... are ” that Booker constitutional error is struc- J., Tjoflat, dissenting, See determinate.’ then, every tural is that v. Louisi (quoting at 1282-83 Sullivan satisfy constitutional error will 275, 282, ana, 508 U.S. reversal and resen- (1993)). require error test 124 L.Ed.2d 182 ex Thus, view, errors, tencing. Supreme in his plaining impact of structural applying the effect of Court’s belief about Court stated: “Without doctrines, “ordinary prudential a criminal trial determin- protections, these basic reliably function as a ve ing, example, cannot serve its whether the issue was guilt or inno hicle for determination ‘plain- raised below whether it fails the cence, punishment and no criminal test,” Booker, error’ fundamentally fair.” Rose regarded Applying plain error wrong. test Clark, 570, 577-78, 106 not, unpreserved Booker error will as the (1986) (inter 92 L.Ed.2d every appeal from thought, prevent omitted). nal citation leading sentencing hearing. to a new See id. it Because structural where ex ists, a criminal funda punishment renders Seeking theory to his from the free unfair, mentally it would be difficult to clutches of the Court’s statement an

justify a conclusion that error that is every that not Booker error will meet the “seriously not a£fect[] structural does test, requirements plain Judge error fairness, integrity of public reputation Tjoflat posits that the Court must have Olano, judicial at proceedings,” 507 U.S. only statutory meant error. Be- omitted). (quotation at yond satisfying theory, the needs of his Recio, See United States interpret there is no reason to the Court’s (9th Cir.2004) (“We 1103 n. 7 note that way. that statement The Court did not particularly likely structural error is to say expected reviewing it courts to satisfy prong.”). fourth Olano’s doctrines, apply ordinary prudential such test, discovered, plain. as the error cases of

So far as can be no court has actually statutory Nor is reason ever held that error is structur- error. there panel Milan, panel, skipped in the Oliver case. See United States v. Circuit's Bruce also the third (6th Cir.2005) 398 F.3d 452 n. 3 straight prong and went to the fourth in its ("To Oliver, Bmce with we the extent conflicts plain error decision. See recent Gonzalez- note that must follow Oliver because it Huerta, 403 F.3d at 2005 WL first.”). was decided The Tenth en Circuit’s at *6-9. majority opinion, banc like that of the Sixth distinguish have had on logic in law or between the sentence proceeding. Id. for types purposes two of Booker error at Everything 1283-85. said can be rule. order make about the effect Booker constitutional er Tjoflat’s Judge post-Booker plain error may ror sentencing have-on a proceeding work, theory we would have write into applies equal force to Booker statuto statutory law a rule that errors could our ry Every error. difference between what regardless of not be treated as structural Judge Tjoflat calls the “old model” sen their structural effect. No decision tencing and the “new model” that would be Supreme Court or of this Court has ever in place on regardless remand .exists that, held and there is no reason this whether there is an extra-verdict enhance to do so now.4 presence ment a case. The or absence prejudice, difficulty and the of determin Tjoflat’s Judge The heart of structural it, ing regardless is the same of whether theory Booker constitutional the Booker error is constitutional or statu errors affect the framework in tory. Tjoflat treating concedes that ways “necessarily unquantifiable that are type unpreserved one Booker error as J., Tjoflat, and indeterminate.” dissent -not, structural and the though other even Sullivan, (quoting ing, they have the same effect on 2083). the structure Yet, he of the proceeding, “[intuitively ... concedes, commendably Booker constitu odd,” id. at tional cannot 1982. That is an understate errors be dis tinguished they based on the effect ment. Cir.2005) J.) (”[T]he language Judge Tjoflat quotes

4. The (Tjoflat, prior panel from rule (internal does not extend dicta.”' a footnote in our decision in United States v. citation Sanchez, omitted)); (11th quotation and ta, United States v. San 269 F.3d 1272 n. 41 (11th Cir.2000) Cir.2001) (en banc), 672 n. 14 pure See dictum. J.) ("It settled, however, (Tjoflat, J., is well Tjoflat, dissenting, at 1284-85. The error opinion binding no can be considered as au constitutional, statutory. in that case was not thority expression. unless the case calls for its Judge Tjoflat expresses surprise some at the As the court’s in [United v.] statement panel opinion refusal of the and its author to 1990)1 Nixon [918 F.2d 895 Cir. impressed by be that dictum from the Sanchez decision, unnecessary to its it ais dictum and J., opinion. Tjoflat, dissenting, at 1296 n. 18. does control our decision in this case.” surprised, He shouldn’t because is well- (internal omitted)); quotation- citation and anyone. established that dicta does not bind Klay Healthgroup, v. United Inc. 376 F.3d Robertson, E.g., Corp. v. McDonald's 147 F.3d 1092, (11th Cir.2004) J.) (Tjoflat, 1101 n. 12 1301, (11th Cir.1998) (Carnes, J., 1315 con- moreover, (stating holding, that ”[t]his reasons, ("For others, curring) among these dicta, pure previously as we had concluded opinions binding anyone dicta in our is not matter,” jurisdiction that we lacked any purpose.”), quoted approval, for concluding "we are not bound to Sec., Shinn ex rel. v. Shinn Comm’r Soc. Head, it”); Mobley adhere to v. 306 of 1276, (11th Cir.2004) (Tjoflat, 391 F.3d 1285 1096, (11th J„ Cir.2002) (Tjoflat, 1102 dis J.). senting) (stating that because a on an decision thing truly surprising only dicta, is is prior panel issue a was mere dictá, Judge Tjoflat’s respect review); new-found open issue remains for later Arm and his reliance on the dictum in the strong Corp., Sanchez v. Martin Marietta 138 F.3d J., opinion, Tjoflat, dissenting, 1374, (11th Cir.1998) J.) (stat (Tjoflat, 1396 years proclaiming ing which comes after him- Supreme a that he "mindful of dicta” in Court’s, self not to be bound dicta in this appeared Court decision "that to be in ten Court's, See, Supreme opinions. today,” or even the with the conclusions I reach but sion Smith, 1303, e.g., concluding Court, by Supreme United States v. 402 F.3d that he is bound not 7, 628686, dicta). n. 1315 2005 WL *6 7n. 1268 distinction, 335, 792, Judge arguing for U.S. 83 S.Ct. 9 L.Ed.2d 799 (1963) (the

Tjoflat dissenting opinion deprivation right relies on a from total trial); Ohio, Tumey errors counsel at v. Booker to dismiss as 273 U.S. (1927) (a 510, 437, 47 71 749 “merely byproduct a of Booker’s ‘unneces S.Ct. L.Ed. ” Tjoflat, J., judge); Vasquez Hillery, biased sarily remedy.’ broad dis 617, Booker, 106 S.Ct. 88 L.Ed.2d 598 senting, (citing at 1295 125 S.Ct. at (1986) (unlawful (Stevens, J., exclusion members of dissenting)). That would jury); the defendant’s race fine, grand from except dissenting opinions express Wiggins, McKaskle v. 465 U.S. dissenting In applying views. the Booker (1984) (denial S.Ct. 79 L.Ed.2d decision, adopt dissenting we cannot right trial); to self-representation at remedy view on the but must instead ac Georgia, and Waller v. 467 U.S. majority cept opinion as the law and (denial (1984) S.Ct. 81 L.Ed.2d 31 follow it. trial). right public to a Arizona v. Tjoflat’s theory that Booker con Fulminante, 279, 309-10, 499 U.S. stitutional error structural error is also (1991) 113 L.Ed.2d 302 contrary to this Court’s own en banc deci C.J., (Rehnquist, maj. op.). case Sanchez, sion in United States since Fulminante Supreme where the (11th Cir.2001), where we discussed Court has found a structural error is Sulli- rejected at length and the contention that Louisiana, 275, 278-82, van v. 508 U.S. types Apprendi of the various error 2078, 2081-83, 113 S.Ct. 124 L.Ed.2d 182 were structural error. Id. at 1272-75. (1993), which involved an improper jury Our decision Apprendi “beyond instruction on the a reasonable question structural answers the of whether doubt” standard. structural, Booker error is because Booker listing After those structural application, is an Apprendi once re cases, Supreme Fulminante Booker, moved. See “ explained the common thread: ‘Without (“our (Stevens, J., maj. op.) holding in protections, these basic a criminal trial Blakely applies to the Sentencing Guide reliably cannot serve its function aas vehi- lines”); Blakely Washington, 542 U.S. innocence, cle for guilt determination of —, 124 S.Ct. 159 L.Ed.2d 403 no punishment may criminal be re- (2004) (“This requires case apply us to ” garded fundamentally fair.’ Id. at ”). rule expressed .... Apprendi 310, 111 S.Ct. at (quoting Rose v. Even if our Sanchez decision did not Clark, 570, 577-78, exist, we still should not hold that Booker 3101, 3106, (1986)). By L.Ed.2d 460 error is structural error. The contrast, Booker prevent error does not that, Court itself has been careful to note trial serving from its function as vehicle have found “[w]e structural errors in innocence, for the guilt determination of very a limited class of cases.” Johnson v. and it does not render punish- criminal States, 461, 468, 520 U.S. 117 S.Ct. ment fundamentally unfair. pre- 1544, 1549, (1997). 137 L.Ed.2d 718 regime Booker was the law of the land that describing how limited that class of cases applied in determining hundreds of thou- is, Fulminante, in the Court Arizona v. sands of country federal sentences in this following listed the decisions finding struc period over a of almost two decades. tural error: Gideon v. Wainwright, rules, 372 While changes-some of the

1269 683, 691, Kentucky, 476 U.S. 106 S.Ct. conclusion that compel does (1986) (erro- 2142, 2147, 90 L.Ed.2d 636 every in federal sentencing process used testimony country twenty for the last neous exclusion defendant’s in this court regarding in the circumstances of his con- defective it resulted years was so fession); Arsdall, unfair sen- Delaware v. Van 475 fundamentally thousands 1431, 673, 106 L.Ed.2d 674 U.S. S.Ct. 89 tences. (1986) (restriction right on defendant’s rarity Court reiterated to cross-examine a witness for bias in in Neder v. United of structural error violation of the Sixth Amendment Con- States, stating that: the defendant “[I]f Clause); Spain, frontation Rushen v. impartial and was tried had counsel 114, 2, 464 & n. 104 U.S. S.Ct. strong presumption adjudicator, there is a 453, 2, 454-55 & n. 78 L.Ed.2d 267 other errors [constitutional] (1983) (denial right of a defendant’s subject to harm- may have occurred are trial); present be United States v. 8, 1, 119 analysis.” less-error 527 U.S. 499, 1974, 76 Hasting, 461 U.S. 103 S.Ct. (1999) 1827, 1833, 144 L.Ed.2d 35 (1983) (improper L.Ed.2d 96 comment omitted, original). in (quotation brackets trial, in on defendant’s silence viola- rarity of struc- point about the The same tion of the Fifth Amendment Self-In- tural was made Chief Justice Clause); Evans, Hopper crimination v. majority opinion Fulmi- Rehnquist’s 605, 2049, 456 102 S.Ct. 72 L.Ed.2d U.S. types There he listed all of the nante. (1982) (statute improperly 367 forbid- subject error the Court had held jury ding giving trial court’s instruc- analysis and therefore not harmless error tion a lesser included offense in nature: structural capital case in violation of the Due Pro- 738, Whorton, Clause); Mississippi, Clemons v. 494 U.S. v. 441 Kentucky cess 752-54, 1441, 1450-51, 786, 2088, 110 S.Ct. 60 L.Ed.2d 640 U.S. (1990) (1979) (failure (unconstitutionally jury L.Ed.2d 725 to instruct the on the innocence); jury at the sen Moore v. Il- presumption overbroad instructions linois, 220, 232, 458, case); U.S. 98 S.Ct. tencing stage capital of a Satter (1977) (admission Texas, 466, 249, 54 L.Ed.2d v. 486 U.S. 108 S.Ct. white (1988) (admission 1792, of the identification evidence violation 100 L.Ed.2d 284 Clause); stage of a Amendment Counsel of evidence at the Sixth 223, States, 411 Brown v. United capital case in violation of the Sixth 1570-71, 1565, Clause); 231-32, 93 S.Ct. Amendment Counsel Carella (1973) (admission L.Ed.2d 208 California, 491 U.S. 109 S.Ct. (1989) 2421, nontestifying out-of-court statement of a 2419, (jury 105 L.Ed.2d 218 in violation of the Sixth codefendant containing instruction an erroneous con Clause); Illinois, Milton v. Amendment Counsel presumption); Pope v. clusive 2174, 501-04, Wainwright, 407 U.S. 92 S.Ct. 481 U.S. 107 S.Ct. (confession (1972) (1987) obtained (jury L.Ed.2d 439 33 L.Ed.2d in violation of Massiah v. United misstating an instruction element Clark, L.Ed.2d offense); 84 S.Ct. 377 U.S. Rose (1986) (1964)); Maroney, 399 Chambers 92 L.Ed.2d 1981-82, 42, 52-53, 1975, U.S. 90 S.Ct. (jury containing instruction an errone (1970) (admission of evi- L.Ed.2d 419 v. 26 presumption); ous rebuttable Crane 1270 in Fourth putting

dence obtained violation of the forward additional evidence or ar- Alabama, Amendment); guments. example, 399 For Coleman Carella Cali- 266, 2419, 1, 10-11, 1999, 2003-04, fornia, 26 491 U.S. 109 U.S. 90 S.Ct. S.Ct. (denial (1970) (1989), 105 L.Ed.2d 218 of counsel at L.Ed.2d 387 in conclusively presuming the element preliminary hearing violation th e intent, Neder, 14-15, and in 527 at U.S. Sixth Amendment Confrontation 1836-37, Clause). taking 119 S.Ct. at the error was away element the crime from the Fulminante, 306-07, 111 499 U.S. at S.Ct. jury. cases, In both of the error those (some C.J., maj. at (Rehnquist, op.) have may influenced the evidence the de- omitted). citations The Fulminante Court put fendants arguments forward or the itself that the of a coerced held admission Nonetheless, they made. Supreme structural, not a confession was error. Id. implicitly Court held explic- Carella and at S.Ct. 1265. Since the Ful itly Neder that the error was not struc- decision, minante the Court has added to tural. the list of nonstructural errors in the fol The same is true

lowing decisions: States v. Domin when constitutional Benitez, error is committed guez precluding lesser U.S. (2004) (omission included in capital 2339 n. 159 L.Ed.2d 157 offenses cases. A de- prevented fendant of a state law from hav- warning Fed.R.Crim.P. is not a error); Neder, 4, 14, ing jury structural consider lesser included very (judicial might offense well refrain from usurpation put- jury’s ting forward guilty function of evidence that he was determining it instead of greater whether an element of offense. the crime existed is Be error); may, Supreme not as it Hopper structural Brecht v. Court in Abraham son, 619, 628-30, 1710, Evans type determined that this of consti- 113 S.Ct. (1993) (the tutional error 123 L.Ed.2d is not structural and af- gov firmed the post-Mi ernment’s use of the conviction because the uncon- defendant’s preclusion randa-warnings provision stitutional impeach silence the de had no error). prejudicial fendant is effect in that not structural case. 456 U.S. 605, 613-14, Against holding this flood of decisions (1982) L.Ed.2d 367 (rejecting argu- sundry that various and constitutional and preclusion ment that provision “so in- structural, not Judge errors are respondent’s fected trial that he must be Tjoflat’s proposition that Booker error is reversing grant retried” and of relief unpersuasive. structural It would not because that provision did not prejudice enough to make Booker error structural respondent). if, even argues, as he defendants had no incentive before Booker to put forward discussed, For just the reasons it would relating evidence to the 18 U.S.C. not be enough to make Booker error 3553(a) J., § Tjoflat, factors. dissenting, structural if pre-Booker defendants in sen- at 1289. We know that would not be tencing proceedings had no incentive in- enough because the Court has troduce mitigating arguments evidence or 3553(a) held number of errors to be structur- relating factors. al, even where the error pre- Tjoflat’s theory depends structural on the vented or discouraged the defendant assumption from that before Booker there was incentive, yet reality in factors, no such there court to was. consider these so there yet problem This is another with his theo no reason to remand so the district court ry. lack of consider additional The assumed incentive is his circum- stances. theory’s explanation why pre-Book for sentencing any given er record in case Barnett, United States v. 398 F.3d indicating would not contain evidence (6th Cir.2005) C.J., 537-38 (Boggs, concur- 3553(a) any § presence factors that ring part in dissenting part); in see in might post-Boofc make a difference Gonzalez-Huerta, also 403 F.3d at advisory sentencing regime. er Defen 2005 WL at *6. good That’s a in pr sentencing proceed dants e-Booker point. ings any lacked incentive offer example, For guidelines case the 3553(a) § or argument, Judge evidence range months, was 97 to 121 spread a Tjoflat says, it because would have been years. two full Rodriguez, 398 F.3d at permissible irrelevant unless it fit within a case, 1296. In our guidelines Shelton ground departure, for downward which range months, effectively was 190 to 222 3553(a) J., § Tjoflat, not all factors do. spread of more than two-and-a-half years. dissenting, at 1289. guideline F.3d at 1328. The ranges in Judge Boggs Chief of the Sixth Circuit Rodriguez and exemplify Shelton the fact pointed argument: out the flaw in this that most pr e-Booker sentencing defen dants, case, including the one in this had argument ignores This a fundamental plenty of put incentive to forth mitigating they feature of the present Guidelines: arguments evidence and relating to the sentencing court a range, with from 3553(a) § not, factors. Those factors were which must select a sentence. In this Tjoflat Judge suggests, “irrelevant all case range nearly years— five but the most unusual in pr cases” e-Booker already every 57 months. Counsel had J., sentencing. Tjoflat, dissenting, at 1289. every opportunity present reason and To contrary, they were relevant any mitigating might circumstance that (The virtually every case. Duncan case possibly have saved Barnett from an exemplifies exception, because there years prison. Any additional five ar guidelines dictated a life sentence. guments might post- raised 2.). n. Booker about culpability, danger future ousness, works, offsetting good family Tjoflat says that “we must as obligations, any other cir mitigating sume, anything, if that a defendant such as cumstance were also game pre- fair Rodriguez something would have done dif Booker, arguments mitiga and these Tjoflat, J., ferent under the new model.” regularly tion have been invoked de dissenting, justifica at 1291. There is no fense counsels in pr e-Booker assumption, tion for that especially proceedings. United States Riascos- Rodriguez defendant such as who had two Suarez, Cir. years worth of incentive built into the 1996) (finding reversible error when the guidelines range any to come forward with 3553(a) defendant was not opportu offered the arguments evidence or at his nity give mitigating evidence at sen pr sentencing proceeding. e-Booker Even tencing). placed The Guidelines never if disregard guidelines we were to incentive, ability range limits on the assumption district the crucial be- that there is saying theory ig- error. Id. Instead Tjoflat’s structural Judge hind way in applying it a and then that, guidelines had a burden if the fact nores the burdensome, it is more forth- in that is not officer advisory, probation the only been Tjoflat directly, Judge as right argue in government the and the PSR compiling does, not exist. See ought that the burden could have longer a advocating (“In short, require courts id. these that the arguments put forth evidence that his substantial to show 3553(a) a above defendant favored sentence factors they only to find that rights were affected question is not range. guideline involving in case constitutional every The were would have done. what the defendant no simply say I that court would whereas would the district question is what For the rea- showing required.”). the evidence and is hearing such have done after discussed, already this Court did sides. sons arguments of both Tjoflat’s approach, but Judge adopt any assumption no for There is basis the virtue of ana- reasoning his least advisory the differences between lytical transparency. system mandatory guidelines will and a or, more im- general in Fourth Rodriguez opinion, favor defendants our Since particular defendant. portantly, original panel issued Circuit cases, Rodriguez, as in that in most fact is another look at Hughes decision has taken just But don’t know. 398 F.3d in the issu it. That second look resulted Shelton, 400 F.3d at cases like there are that reaches the opinion of a new ance 1332-33, the record shows a reason- where 401 F.3d Hughes, conclusion. See same result in different probability able already at some discussed 540. We guidelines if the had favor of the defendant reasoning in on dis the flaws length why That mandatory. we sent not been Rodri Hughes opinion, first play Where, resentencing. that case back the new F.3d at but guez, 398 however, way, either we have no indication ways flaws in opinion illuminates those burden loses. Rodri- party with the additional comment. See that warrant it comes to guez, at 1301. When 398 F.3d Coles, States v. also United test, prong the third (D.C.Cir. Apr.8, *4 2005 WL Id. party is the defendant. 2005) curiam) (discussing prob (per Hughes approach and con

lems with the face of the cluding that it “flies II. remedial order Book Supreme Court’s ”). er Tjoflat correct about approach to this Fourth Sixth Circuits’ to doubt longer any is no reason There J., Tjoflat, being wrong. dissent- issue See ap- erroneous the Fourth Circuit’s (citing ing, at 1297-98 n.19 United States premise core the that the proach has at its (4th Cir.2005), and Hughes, 401 F.3d 540 mandatory guidelines nature of the is not Oliver, F.3d 369 United States part of a Booker constitutional an essential Cir.2005)). simply explains, As he new paragraph of its violation. This is do, say, those two circuits inaccurate to lays the sub- opinion that bare Hughes has carried his burden reasoning: structure of its affected showing that a Booker error has act of mistak- differently, the we can Stated rights his when substantial guidelines as mandato- enly treating the would be without the guess what the result ry part merely advisory provisions is not the Sixth Amendment recom mended, us, than despite required, the fact that the rather the selec before particular tion of mandatory response sentences guide former nature of the facts, differing sets of their use would not stage lines set the for the constitutional implicate Amendment.”); the Sixth id. at violation in Booker. That the erroneous (“[W]ithout J., (Breyer, maj. op.) this of the guidelines treatment as mandato provision namely provision the ry part is not of the constitutional error — makes the relevant man rules clearly post-Book can be seen most in a datory imposes binding and requirements court, Suppose er context. a district on all sentencing judges statute falls —the post-Booker, erroneously treats the scope outside the Apprendi’s require of guidelines mandatory as imposing when (internal ment.” quotation and markings in part sentence that rests on extra- omitted)). Hughes The opinion manages verdict enhancements. Such sentence reject principle the one that all nine erroneous, certainly would be but there agreed Justices on in Admittedly, Booker. would no Sixth Amendment error the Justices did not add to their state because, regardless of what the district it,” ments “... really mean but thought, guidelines court the post-Book what else short could the Court er are in advisory fact and the sentence convey said to that it was serious? imposed did not exceed the maximum (which is, jury authorized the verdict hypothetical The part laid out in the course, the maximum set forth in the the Hughes opinion quoted high- earlier conviction). lights statute of the Fourth Circuit’s misunderstand- ing of Booker. If a district court 553-54; Hughes, 401 F.3d at see also id. at post-Booker applies world an extra-verdict (There “a separate class of enhancement guidelines and treats the as namely, the error of treating guide- mandatory, of course the resulting sen- mandatory as sentencing. lines Such an tence will be unconstitutional. The viola- error is distinct from the Sixth Amend- impact tion and its on the defendant will ment claim that gave rise to the decision be identical to what occurred in the Booker Booker, and it is non-constitutional na- case itself. That the constitutional viola- ture.”). Wrong, wrong, wrong. impact tion and its occurs not obedience statutory to a mandate but as a result of guidelines Treating mandatory ignorance, negligence, or defiance not does an essential part of the constitutional er- make it less a constitutional violation. ror, not a non-constitutional error distinct Constitutional error can be committed free from the one involved in the Booker deci- effect, command. any, if sion. The Court was unanimous on the defendant is the same if the same about that. All joined nine Justices one or act is committed in the same circum- majority both of the opinions, each of regardless stances of the source of the which stated that the use of extra-verdict guidelines error. If the applied are in a enhancements in an advisory regime is mandatory way when there are extra-ver- permissible if guidelines are enhancements, pattern- dict result is applied mandatorily there is no consti- perfect Booker constitutional violation. Booker, tutional error. 125 S.Ct. at 750 (Stevens, (“If J., maj. op.) the Guidelines The Fourth disregard Circuit’s of what as currently written -Supreme could be read as Court said in Booker about objections and timely erally, encourage guide- mandatory application demanding reversals wasteful of the constitutional reduce source being lines unpre- for wrong get exertion to relief give circuit to strenuous led that violation error”). divorcing question in the posed By question to the served answer in- opinion. prejudice question from the Hughes to reverse latest of whether says', remand, whether the dis- Hughes “is the Fourth quiry, change on what would imposed the sen- could have trict court does not avoid Hughes rule Circuit’s exceeding the relevant without tence it did engine reversals but is instead wasteful If the an- limitation. Amendment Sixth generating them. ... ‘yes’ then inquiry

swer to an to demonstrate has failed III. Hughes, rights on substantial effect answer, of at 550-51. The Judge Tjoflat’s on efforts cheering While could course, “yes.” The district court theory, error to construct a structural en- the extra-verdict applied same dissenting opinion also Barkett’s Judge imposed and the same hancement the applied has suggests that the Court Amend- violating the Sixth it did without post- in these standard wrong prejudice consulting guidelines the but ment cases, perhaps plain non-man- advisory. That treating them as in the the correct standard applied guidelines would datory application of contrary, we have way. To the wrong Sentencing Reform Act have violated correctly. applied the correct standard existed, 18 specifically it U.S.C. as then panel opin- in what we said This is 3553(b)(1), not have violated § but would ion: why the That is Amendment. Sixth Booker decision instructs Supreme Court’s prong third of the apply and extra- district courts find test, however, It re- is another matter. in future cases but enhancements verdict “affect[ed] that an error have quires resulting guidelines range as treat the always almost rights,” which substantial “ advisory. ‘must have af- requires that the error district court fected the outcome of the a resting premise addition ” Cotton, at 535 U.S. proceedings.’ in the Book contrary to the stated belief Olano, 507 (quoting at 1786 S.Ct. Justice, every single er decision 1778). 734, 113 S.Ct. U.S. adequately explains never Fourth Circuit the familiar showing that is standard particu about whether a why the decision of a different re- probability reasonable prejudiced should lar defendant been (cid:127) formulation, proba- which means sult the one factor that will be not turn on “ confi- bility to undermine ‘sufficient in order to avoid the changed on remand ” dence in the outcome.’ United It never tells us constitutional violation. Benitez, 74, 124 Dominguez prong about the third its rule how (2004) 159 L.Ed.2d S.Ct. purpose serves the main plain error test Washington, (quoting Strickland which prong’s prejudice requirement, 2052, 2068, U.S. S.Ct. Domin is to avoid wasteful reversals. See (1984)). In to this regard L.Ed.2d Benitez, (application at 2340 guez defendant rather prong, third is the “[i]t standard “should enforce prejudice 52(b) bears the [government than who gen- underpin Rule policies persuasion respect to that there would have burden been a different Olano, if prejudice.” recognized 113 sentence the court had and 3553(a) at 1778. exercised its discretion and guidelines treated range merely ad- Rodriguez, repeated 398 F.3d at 1299. We visory, party with the burden show- probability of a applied and the reasonable ing probability a reasonable aof different a prepon different result standard —not added)). (emphasis result loses.” derance standard —at least five more times opinion. our id. at throughout See The difference in views between this (“Therefore, prong, the third applying Barkett is not about the prob apply. we ask whether there is reasonable standard to all agree We that the ability guide result if probability reasonable applies. standard different applied advisory lines had been in The difference is how that standard ap- - binding stead of the sentencing plies fashion when we cannot tell whether added)); judge (emphasis this case.” id. prejudice. error caused posi- The Court’s (“[Wjhere tion, Curtis, the effect of an error on the which set out in Rodriguez, Duncan, result the district court is uncertain or is that the defendant loses in indeterminate —where we would to this situation. That is so have because the bur- defendant, den is on speculate appellant Supreme has not the and the met his —the Court Jones v. shoiving probabili burden a reasonable of L.Ed.2d ty that the result would have been differ (1999), told us that error; when we cannot ent but for tell the he has not met his whether the error prejudice caused the showing prejudice; burden of he has not defendant loses. showing met his burden of that his sub (em rights stantial have been affected.” Judge Barkett does not that dispute the (“The added)); phasis impor id. at 1302 defendant has the showing prej- burden of tant function of the prong third udice; just says she it really does not plain prevent error test is to a remand for amount any burden at all. Her view is proceedings additional where defen the - that once there is the defendant dant, timely objec who failed to make a establishing preju- carries his burden of tion, cannot show there is a reason by showing dice if we don’t know the able a probability that do-over would more Barkett, J., prejudiced error him. dissent- likely produce than not result.” different words, ing, nothing at 1298-99. In other (“Therefore added)); (emphasis id. in or equals something; the burden is no bur- satisfy prong der to of plain third adjective at all. “oxymoronie” den test, pre-Booker error must es defendants justice does not do to this “no-burden bur- probability tablish a reasonable if concept. den” district court guidelines had considered the range it at using arrived extra-verdict en Aside robbing perfectly good from (“burden”) merely advisory, hancements as instead of plain meaning, word of its ¿nd mandatory, had taken into account key premise position of Barkett’s factors, contrary otherwise unconsidered also to a of our prior number imposed applying probabil- court would have a lesser sen decisions the reasonable added)); tence (emphasis ity than did.” id. of a different result standard. See (“As explained, Straight at 1304 we have Wainwright, where the 772 F.2d (11th Cir.1985) (defendant ‘any record does not provide carry indication’ fails to his jury omission of a instruction about the probability a reasonable showing burden of on the consequences of deadlock sen- is abso “[t]here result where of a different In rejecting tence issue. the defendant’s issue); Henry lutely no evidence” on argument, Supreme error 761, 763 Cir. Wainwright, F.2d explained that the situation was one curiam) (where 1984) nothing there is (per it could not determined what which an omitted instruction would to show that effect, if any, omission of that instruction deliberations, jury’s applied to the have capital on outcome of the had finding “nothing which a of upon there is proceeding. It instructed us that where based,” exis could be and the prejudice likely as the effect of prejudice” “only,a possibility tence other, way cut where the effect one satisfy bur enough the defendant’s indeterminate, it had on the outcome is showing probability a reasonable den cannot meet his “defendant burden Wainwright, Adams v. result); a different actually affected his showing the error (11th Cir.1985) (where 1356, 1369 Jones, rights.” substantial issue, defen proof there is no 394-95, 119 are not to 2105. We carry burden of dant has failed his speculate in this kind situation. showing probability a reasonable of a dif defendant loses because the defendant result). ferent Id.; Rodriguez, see also the burden. ¿(“Tbe Supreme lesson of the importantly, Judge posi- More Barkett’s Court’s Jones decision is that the burden specific cannot tion be reconciled with truly is on the defendant to show that the holding instruction .... actually did make a difference Jones. As we ex- Court’s decision way Where errors could have cut either Jones is di- panel opinion, in plained exists, uncertainty the burden is the rectly plain third-prong error applicable factor in the third of the prong decisive it is situations which unclear what ef- test, plain error and the burden is on the fect, Rodriguez, any, if the error had. defendant.”).5 1301. The Jones decision came a case where had capital Judge the defendant apparently Barkett does not dis- Jones would object failed to in the pute district court the rule stated ques- provided support 5. The Court in Jones was faced with the as much for the result in case, defendant, which was affirmance of the sen- tion of whether who failed tence, as did its decision that there was no properly preserve objection, his was entitled holding error. ade- Either would have been proceeding to a new sentence because of quate. holding, Each is an alternative give jury district court’s failure to a instruc- holding binding. each alternative See Mas- 387-88, tion. 527 U.S. at 119 S.Ct. at 2101- States, 611, 623, sachusetts United 333 U.S. 02. The Court held that the error the defen- 747, 754, (1948); 68 S.Ct. 92 L.Ed. 968 Rich- plain dant claimed error two was for mond Screw Anchor Co. v. United plain alternative reasons. It was not error 331, 340, 194, 196, U.S. 48 S.Ct. 72 L.Ed. 303 jury because the instructions were not (1928) ("It given a a does not make reason for 389-90, id. at 119 S.Ct. at and also dictum, in a conclusion case obiter because carry because the defendant had failed to his one of two reasons for the same con- satisfying prong burden the third clusion.”); United States v. Title Ins. & Trust plain by showing error test that the failure to Co., 472, 486, 621, 623, 265 U.S. S.Ct. give preju- the additional instructions had (1924); Ry. L.Ed. 1110 Union Pac. Co. v. him, diced id. at 119 S.Ct. at 2105. Co., City Dodge Ry. & Fort 199 U.S. Mason 160, 166, 19, 20, Supreme Court’s decision in Jones 26 S.Ct. 50 L.Ed. 134 (1905); required County the defendant had failed to make the Johnson v. DeSoto Bd. Comm'rs, (11th Cir.1996) showing prejudice plain purposes error compel finding Rodriguez has failed general states the standard, and Jones satisfy the third-prong speaks to a specific situation, the one be- Instead, position test. her is that we need fore us in most of pre-Booker not and should not Supreme follow the cases. The two decisions are not in con- Court’s decision in gives Jones. She sev- flict. reasons,

eral none of which persuasive. are essence, Reduced to its Judge Barkett’s argues Barkett that what the Su- theory for disregarding the direct applica preme Court said in Jones is “in direct tion of Jones is that it implicitly over conflict” with what it said later in United ruled' the later decision in Dominguez Benitez, States v. Dominguez 542 U.S. Benitez, premise based on her belief that (2004). 124 S.Ct. 159 L.Ed.2d 157 rests on Jones rejected reasons in Domin Barkett, J., dissenting, at 1300-01. There guez Benitez. The problem with her ap conflict, is no direct or indirect. if Even proach is that Court has were, there we would required to follow repeatedly told us not to take it. The the more specific commandment from the Court has instructed us: “If precedent Jones case. All that Dominguez Benitez application case, direct in a held is that the third-prong prejudice stan- yet appears to rest on rejected reasons requires dard the defendant to show a some decisions, other line of the Court of reasonable probability result, of a different Appeals should follow the case which di which means a probability sufficient to un- controls, rectly leaving to this Court the dermine confidence in the outcome of the prerogative of overruling its own decision.” proceeding. 124 2338-40. The Rodriguez de Quijas Ex Shearson/Am. decision did not say hold or anything about Inc., press, 109 S.Ct. what the of applying result that standard 1917, 1921-22, 104 (1989); L.Ed.2d 526 see should be where there is no indication Doe, also Tenet —, whether actually did have an (2005) 161 L.Ed.2d 82 (quoting adverse effect pro- outcome of the Inc., Express, Shearson/Am. U.S. at ceeding. The Court remanded the Dom- 1921-22); Trucking Am. inguez case Benitez to the court of appeals Ass’ns, Smith, Inc. v. 167, 180, for application of the standard. Id. 2323, 110 2332, 110 L.Ed.2d 148 (1990) (plurality (same); op.) Agostini v. Felton, 521 contrast, U.S.

By 1997, Jones this very issue was 2017, (“We (1997) presented, addressed, 138 L.Ed.2d 391 and do decided. not Supreme acknowledge, hold, and we Court could not do not have been that more specific in telling other us courts that where the should conclude our more re just likely as have, cent by could cases implication, have worked in the overruled defendant’s favor him, an against precedent.”); earlier where Hohn v. United the effect indeterminaté, 236, 252-53, where we sim- 118 S.Ct. ply tell, 1969, cannot 1978, (1998) (“Our defendant has to failed L.Ed.2d 242 carry his on burden prong third decisions remain binding precedent until plain error test. Dominguez Benitez we fit them, see to reconsider regardless ("we are banc) ("It bound holdings”); alternative has long been settled all that alter Co.,

McLellan Mississippi v. Light Power & given native rationales prece- for result have . 919, (5th 1977) (en 545 F.2d value.”) n. 21 Cir. dential district court that Act’s have raised direction cases subsequent of whether in the first instance vitality.”). should determine continuing their about doubts Barkett, imposed. that should sentence to heed Su careful have been We The dis- so. J., dissenting, at 1301. Not following about admonition Court’s preme first in- in the determined trict court has explicitly that Court until its decisions pre-Booker in all sen- the sentence stance League Fla. See them. overrules Prof'l of not now is what question cases. tence 457, 462 87 F.3d Meggs, Inc. Lobbyists, be, but should the defendant’s Cir.1996) (‘We this admonition (11th take carried bur- his the defendant has whether any step to take heart, decline and we to required establishing prejudice den Su [prior appear overrule might which test. plain prong the third decisions].”); Eng’g Contrac Court preme Dade Fla. Inc. Metro. S. argument tors Ass’n that Judge Barkett’s Cir.1997) (11th F.3d County, States, 503 U.S. v. United Williams seriously.”); (“Of course, that admonition take we L.Ed.2d 341 Park, 116 City Winter the lack (1992), disregard that we requires Scala Cir.1997) (heed (11th n. 2 unpersua- showing also prejudice of a following earlier ing the admonition pre- involved decision sive. The Williams later though decision even Court Supreme hold purport It did error. served some had “cast of the Court decisions objection rule contemporaneous it); & Web v. Stone Brisentine doubt” It sentencing errors. inapplicable Eng’g Corp., ster error rule was say that the did not Cir.1997) (“It Supreme may be did, It sentencing cases. different so back cut earlier decision] has [an Court however, error rule that the harmless note Perhaps, but not survive. that it will far errors, 203, 112 id. applies to sentence authorized we are are not convinced inconsistent with which is S.Ct. at decision]. earlier sing dirge [that require errors the notion Court, Supreme to the will leave that We ordinary prudential regardless remand appeals has admonished courts which doctrines.6 so].”). Likewise, panel do [to Court’s admonition heeded IY. not be to do so would Failure

this case. be rebellion. reasoning, would Tjoflat Judge Bark- nor Neither adopt proposes ett ap- our argues also Judge Barkett Seventh, novel Second, Circuits’ Sentencing D.C. the Federal proach violates proposi unremarkable schlag stands for the argues in a footnote that Barkett preserved error the fact a case of tion that position some plain error Court’s might ranges have resulted overlapping United with a footnote in inconsistent how imposed anyway being in the same sentence Fuente-Kolbenschlag, 878 F.2d States on from review the error did insulate curiam). Cir.1989) (per 7n. Fuente-Kolbenschlag, 878 F.2d at appeal. See Barkett, J., dissenting, It is not. n.9. way saying is another 7. That 1379 n. the case had in that raised The defendant happened know what would we don’t if objection dur timely, specific alleged on party the burden the but the sentencing. opinion could ing case (In Fuente-Kolben- prejudice issue loses. decided, say purport to and did not not have but it party government, was the schlag that about, there is no error. Id. anything happens anyway what when there was because won 1378-79.) object. At most Fuente-Kolben to failure approach to third-prong prejudice determi proceeding. See Crosby, 397 F.3d at 117- nations. See United States v. Crosby, 18, 120; Williams, 399 F.3d at 459-61. (2d Cir.2005); F.3d 103 But if the defendant fails get the appel Williams, (2d Cir.2005); late relief he is seeking in the district Paladino, United States v. court, he F.3d 471 apparently is to appeal free (7th Cir.2005); Coles, United States v. 403 the real appellate court urging it re (D.C.Cir. 2005 WL Apr.8, verse district court’s third-prong plain 2005) curiam). (per Although unwilling to error determination. And if the district embrace that approach, Judge Tjoflat court decides that it would have sentenced takes some comfort in the Seventh Cir the defendant differently so, and does cuit’s criticism of our application of con government apparently can appeal that de plain ventional analysis. Tjoflat, See termination as as any well er additional J., dissenting, (“Or, at 1290 as the Seventh rors embedded in the new sentence. Cros it, put Circuit I ‘cannot fathom why by, 397 F.3d at 119. Eleventh Circuit wants to condemn some The Seventh procedure Circuit’s is simi unknown fraction of criminal defendants to lar, ” that it except formally jurisdic retains serve an illegal sentence.’ (quoting Pala tion of the case during the remand will dino, 484)). 401 F.3d at Only three be the court actually vacates the pre- eleven circuits that position have taken a Booker sentence following the district on proper way to decide whether court’s determination that it would have

error exists in pr e-Booker situations have reached a different result under the Book chosen Crosby/Paladino model. er regime. Paladino, See 401 F.3d at 484. Second,

What Seventh, and D.C. Then the case gowill back down for the Circuits do is remand every pr e-Booker actual resentencing. Id. While retaining (where sentence the defendant wants a for itself the responsibility to enter the remand) in which it is not clear that the order vacating the initial sentence after unpreserved Booker error was remand, harmless. only proa forma reservation Williams, (“We 399 F.3d at 460 remanded in the sense that the actual decision mak that, after we determined on the rec- ing will be vested entirely in the district ord Crosby, we could not say with (“Under suffi- court. id. See our procedure, cient confidence the same since we jurisdiction retain throughout would have imposed.”); Paladino, been remand, limited we shall vacate the sen 401 F.3d at 484 (describing the court’s upon tence being notified judge intention to remand in those “Booker cases he would not have imposed it had he in which it is difficult for us to determine known that the guidelines were merely whether the prejudicial”); error was Coles, advisory.”). The D.C. procedure Circuit’s 403 F.3d at 2005 WL at *1 is identical Coles, Seventh’s. See (same). 403 F.3d at 2005 WL *7. Circuit, the Second if the district The Crosby/Paladino model essentially court determines remand that it would delegates to the district court appellate have sentenced the defendant to less time function of determining whether there is Booker, under it is to pronounce that plain prejudice necessary for correction of un- exists, error set aside prior the judgment, preserved error. There is no in any basis proceed and to conduct the real resentence relevant Court decisions 1280 every crimi- much. too charge proves is every indication and delegation,

for that con- that the it matters in which nal the case at decision make the should that we applied, objection rule temporaneous it exists. as the record level from appellate of cases thousands have been decisions, and there to the those language The mattered, some defendant it has where matter, indicates on the they touch extent have condemned been view will under this that de assume, which one would what or, worse sentence” “illegal an to serve is an exists error plain termining whether an to suffer condemned still, have been will the from be decided to function appellate conviction.” “illegal to be something appeal, record after remand. court by the district decided way and defined “illegality” If at 2340 Benitez, 124 S.Ct. Dominguez See and sentences “illegal” prevent is to goal review, (“[Under a] error way to achieve convictions, only the re judgment satisfy the ... must ob contemporaneous is to abolish goal rec the entire court, informed viewing just Not rule. jection re of a different ord, probability also cases. We in all criminal cases but undermine confidence is sufficient sult proce repeal the and to abolish will have (inter proceeding.” outcome in the century of half which a doctrine dural bar omitted)); quotation nal statutory devel federal law and decisional S.Ct. 122 Vonn, U.S. all, by After place. into put has opment (“[A] (2002) defen silent 152 L.Ed.2d in count doctrine, as dowe applying satisfy plain- the burden has dant un some condemning cases, we are less reviewing court ... a rule and “ille to serve criminals fraction of known considering when record the whole consult “illegal” from to suffer sentences gal” on substantial any error the effect of the thousands what And convictions. Gonzalez-Huerta, 403 also see rights.”); sentences condemned suffer prisoners n. at *3 4, 2005 WL n. at 731 under the Sixth Amendment that violate Crosby/Paladino (concluding that cases finished Booker, their because plain error with is “inconsistent procedure that decision before process direct review doctrine”). No of afterwards. instead was announced Seventh, yet to circuit, including the the Seventh punch behind emotional appli retroactively Booker is suggest derives approach of our criticism Circuit’s light and proceedings, collateral cable to “condemn[ing] we are charge that its from 348, 124 Summerlin, of Schriro defen criminal fraction of unknown some (2004), it is L.Ed.2d Pala sentence.” illegal to serve dants any will. The unlikely that highly charge de 484. That dino, from prisoners all of those way to rescue which one in as “illegal sentence” fines out the to throw sentences” “illegal their result re otherwise that would decision See progeny. and its Teague decision in a case because applied is not versal 288, 109 S.Ct. Lane, 489 U.S. Teague By objection rule. contemporaneous (1989). parts L.Ed.2d contempora enforcement equating in 28 U.S.C. found are of the AEDPA rule, recognition objection neous go ¶¶ & 8 will probably § 2255 “circum exception is plain error that the decisional of these all Only when well. Jones, scribed,” important statutory doctrines and “sparing exercised and should trash on the thrown they are serve values countenancing illegality, id., ly,” 1281 heap will we be able to reduce the tribute, numera- a “detectable MDMA, amount” of tor of that unknown fraction of also defendants known as ecstasy, in violation of 21 841(a)(1), § suffering from U.S.C. “illegal” convictions or serv- for conspiring to do same, in violation ing “illegal” of 21 § sentences zero. U.S.C. 846. At sentencing, the district initially court legal system Our does not simply re set Rodriguez’s base offense level at 30 quire government that the comply with the on its based own determination It Constitution. also makes parties, defen 30,000 offense involved ecstasy tablets. It dants as well as government, comply then added two levels because Rodriguez procedural rules, such as the contem testified falsely, under oath during his trial poraneous objection rule, pain of for that he had no involvement in the offenses feiting legal rights they could otherwise for which he convicted, was U.S.S.G. enforce. Requiring rights to 3C1.1, § be asserted and awarded a two-level reduc- in a timely and appropriate tion fashion fur based on Rodriguez’s minor role in the offense, thers 3B1.2(b). interests that are § vital to the U.S.S.G. proper Because Rodriguez functioning of our had judicial prior no system. convictions, See his guideline sentencing Wainwright range v. Sykes, 97 to was prison. months in 2497, The court imposed (1977); L.Ed.2d 594 sentence of 109 months in prison. v. Pielago, 135 F.3d (11th Cir.1998); Esslinger Davis, After Rodriguez sentenced, the Su 1525 & n. Cir.1995); preme Court held the Federal Sen Sorondo, United States v. 845 F.2d tencing Guidelines violate the Sixth (11th Cir.1988). 948 - 49 Amendment right to a narrowness trial jury to the extent exception they permit to the contempo judge to increase raneous objection defendant’s sentence rule based reflects the on facts that impor are neither found the jury tance of those nor interests. admitted Broadening that by the defendant. United States exception, v. Book constructing ways to circum —er, U.S. —, vent its restrictions on an issue-by-issue (2005). L.Ed.2d 621 remedy To this con basis, lessens the effect of the rule and defect, stitutional the Court declared “the undermines the interests it serves. effectively Guidelines advisory.” Id. at If the matter is to be addressed in “ille- result, As a a sentencing court must gality” terms, then put it way: Failure still “consider Guidelines ranges,” but it of a defendant to comply with proce- clear may “tailor the in light of other dural rules during the judicial process concerns as well.” (citing Id. itself a type of 3553(a)). illegality U.S.C. block We. sentences review imposed consideration of his under claim that he this new model suf- “reason only. 765-67; fered an ableness” illegality. Id. at see also McReynolds v. United (7th Cir.2005) (“District judges TJOFLAT, Circuit Judge, dissenting must [apply the Sentencing Guidelines] from the denial of rehearing en banc: guidelines, reyiew with appellate to deter mine whether task has been carried juryA in the United States District reasonably.”). out Court for the Middle District of Florida convicted Vladimir Rodriguez for distribut- Because Rodriguez did not raise a con- ing, or possessing with the intent dis- objection stitutional at sentencing, 310, 279, 111 S.Ct. 499 U.S. appeal must he raises claim “ (1991). Because structural Booker, L.Ed.2d 302 test.” ‘plain-error’ the pass trial of the the framework error affects the requires general, 769. In at

S.Ct. ... are necessari- “(1) itself, “consequences its oc an error show that defendant to (3) and indeterminate.” ly unquantifiable (2) the plain, curred, error the 275, Louisiana, (4) 281- 508 U.S. and Sullivan rights, substantial eiTor affected 124 L.Ed.2d 182 fairness, 82, 113 S.Ct. the seriously affects the error (1993).2 “defy such, errors structural judicial As reputation public integrity Duncan, standards” analysis ‘harmless-error’ States United proceedings.” objection Cir.2005) if an reversible per and are se (citing 1297, 1301 Fulminante, at 499 U.S. made at trial. Olano, 732- 507 U.S. at 1777-79, 111 S.Ct. 1265. 123 L.Ed.2d 36, 113 S.Ct. Booker, that (1993)). it is clear Under “[a]ny error simply error is A harmless occurred, plain. error is now and that error rights.” not affect substantial that does ... however, holds, Rodriguez panel The 52(a). such, the Su- As Fed.R.Crim.P. he cannot test because plain-error fails that harmless-error has said preme Court af rights were his substantial show substantial-rights prong analysis and the suggest panel does fected. essentially “re- test plain-error af rights were not substantial Rodriguez’s Olano, inquiry.” the same kind quire[ ] fected; rather, rejects his claim because (stating at 1778 at 113 S.Ct. 507 U.S. he know” what sentence just don’t “[w]e important “one differ- there is if the district court received

would rather than It is the defendant ence: advisory as treated the Guidelines had per- the burden of who bears Government Rodriguez, 398 States v. only. United prejudice” to under respect suasion with (11th Cir.2005). 1291, 1301 test). Therefore, if struc- plain-error analysis” by harmless- tural errors recog- “defy to error is its failure panel’s standards, defy anal- they must also a constitutional error of nize that Booker prong plain- ysis under the third “very limited class” one of a dimension say It make no sense to test. would v. United errors.” Johnson of “structural inquiry that 461, 468-69, prejudice the same (1997).1 analysis is 1549-50, impractical harmless-error 137 L.Ed.2d plain-error under deprivations practical somehow of these constitutional “Each per are not se errors affecting the test. Structural ... structural defect is a context be- plain-error in the reversible proceeds, the trial within which framework object at who fails trial cause a defendant simply an error than rather Fulminante, satisfy the second trial must still Arizona v. process itself.” contrast, (1) ordi- Court has described a total 2. "very includes limited class" 1. This counsel, (2) nary "trial error” as "error which occurred right deprivation jury, (3) during presentation of the case to judge, the unlaw- impartial of an trial lack quantitatively and which therefore grand jurors of the defen- exclusion ful pre- race, of other evidence (4) right assessed in the context to self- the denial dant's trial, whether its ad- order determine (5) sented in the denial of representation trial, beyond (6) a reasonable was harmless an erroneous mission right public 307-08, Fulminante, Johnson, U.S. at doubt.” instruction. reasonable-doubt at 1549-50. prongs fourth the plain-error test. But Sentencing beyond Guidelines was ques- it is clear that makes no more sense tion in this circuit every and other. See id. require a case-specific showing preju- of at 2547 n. 1 (O’Connor, J., (col- dissenting) plain-error dice under the test than it lecting cases); does Sanchez, United under the harmless-error 1250, (11th standard. Cir.2001) (en F.3d banc) (“Apprendi does not apply judge- A Booker error that involves actual made determinations pursuant the Sen- to. Sixth Amendment violation is a structural tencing Guidelines.”). Defendants sen- error. dramatically Booker alters the very prior tenced to Blakely had no reason to “framework within which [sentencing] pro- a raise objection constitutional to their ceeds,” Fulminante, 499 U.S. at 111 sentence because objection such an would S.Ct. at and the of effect appeared such, futile. As the num- is “necessarily error unquantifiable and in- of ber cases impacted by panel’s deci- determinate,” Sullivan, 508 281-82, significant. sión is 113 S.Ct. at 2083. Moreover, the logical Because panel’s application, implication concluding paragraph of plain-error test is fundamentally flawed,-4 the Booker opinion remedial is that “cases question because this ... substantial involving Sixth Amendment viola- importance, I dissent from the Booker, denial of tion,” S.Ct. at are not rehearing en banc. Part I of opinion this subject to the and, harmless-error doctrine explains why Booker itself requires that therefore, must involve structural error. we treat Booker errors a constitutional See Part I. For reasons, these I infra dimension as structural errors. Part II disagree panel with the opinion in this briefly describes how dramatically Booker case.

has altered federal sentencing and why panel’s error is a serious one and supports the conclusion that Booker warrants rehearing en banc. The Su errors involving an actual violation of the preme Court instructed ap “we must Sixth Amendment are structural. Part III ply holdings [BookeFs] the Sixth explains plain-error how the —both test applies Amendment holding and [its] remedial in structural errors. Part IV responds to terpretation of the Sentencing Act—to all opinion Carnes’s concurring in the cases on direct Booker, review.” denial of rehearing en banc. Part V con- If, however, we require defen cludes. dants like Rodriguez prove an effect on them rights, substantial applying Booker I.

will be a meaningless formality in all but the rarest subject of cases to plain-error outset, At the it is important to under- analysis.3 This is a sizable class defen stand that there are two different types of dants. Until the Supreme Court’s decision Booker error: “there is a constitutional — last June in Blakely, Washington, (based Amendment) the Sixth U.S. —, 124 S.Ct. 159 L.Ed.2d 403 a judge when enhances a sentence in a (2004), the constitutionality of the Federal mandatory sentencing system based on 3. See note 13. opoulos, (1st infra Cir.2005); Mares, States v. 4. The First and Fifth Circuits have committed WL Cir.2005). at *8-9 the same error. See United States v. Antonak Amend- involving Sixth that “in cases by the admitted

facts not violation, resentencing is whether ment a reasonable beyond jury to a proved it will instead or whether warranted “a doubt,” there reason- to review sentence sufficient when (based severability principles) in the may depend upon application ableness guidelines applied the judge a federal doctrine.” the harmless-error advisory.” Doug than mandatory rather ordinary errors If all Booker were 769.5 the Circuit Berman, Sorting through A. las super- errors, be statement would trial this Policy, at circus, Sentencing Law that the it is well-settled fluous because http://sentencing.typepad.com/sentencing to all ordi- applies harmless-error doctrine _law_ancLpolicy/2005/02/sorting_ ones. constitutional nary trial errors —even 2005). “Notably, (Feb.14, through.html U.S. California, 386 Chapman v. sentencings involved pr e-Booker only some (1967). L.Ed.2d 705 error, every not since pre- constitutional to something more Thus, be there must upon depended sentence guideline Booker implication is logical this statement. every pre-Book But fact-finding. judicial Amend- involving ... a Sixth that “cases statutory involved er subject harm- to are not ment violation” guideline sentence every pr e-Booker since words, Booker In other review. less-error assumption that on the based imposed error is structural constitutional Id. mandatory....” guidelines were the defy harmless-error errors structural both constitution case involves The instant 306-10, Fulminante, at analysis. Rodriguez, 398 statutory error. See al and 111 S.Ct. at 1263-65. (“Under mandatory guide at 1298 F.3d say to that Intuitively, may seem odd was en Rodriguez’s system, sentence lines structural errors are Booker constitutional made findings a result hanced as not. Af- statutory errors are while facts admitted beyond the judge went all, [sen- within which the “framework ter jury.”). by the found 310, 111 id. at tencing] proceeds,” presented question Therefore, precise changed because Guidelines has involving consti whether, in case both develop- mandatory, and longer no are Booker, statutory error under tutional and if trial court applies fully even ment that his sub establish must the defendant (or find- extra-plea) made no extra-verdict is, “a were affected—that rights stantial Moreover, in general, fact. ings of different result of a probability reasonable likely to statutory are be errors effects re applied” as had been guidelines if the indeterminate,” just “unquantifiable as F.3d at (Rodriguez, 398 by Booker quired Sullivan, 508 U.S. at 1301) pass plain-error to order — in errors. of constitutional as the effects test. so, begin To is valid. Even distinction constitu- between Booker prece- The distinction with, support in our own it has clear Sanchez, errors and Booker stated specifically tional errors In we dent. category Booker Court separate because the is no significant “[t]here from constitutional apart be treated the two must structural indicated Booker, only question is whether error. The In Court stated differently. Book- violation.” rise to a Amendment paragraph, Court also em- Sixth 5. In the same er, gives 125 S.Ct. at every phasized that "not ... constitutional errors ... rise to the (at level cases.7 It least) also seems reasonable structural error.” F.3d n. 41.6 say if a defendant’s Sixth Amend- This statement from Sanchez implicit finds right ment to a trial by jury was not in a support number Supreme Court actually violated, we should presume question 6. This whether non-constitutional er governing rules proceedings under 28 U.S.C. rors can ever engen structural errors has § 2254 is error”); "structural Shepherd v. disagreement dered much within several oth (11th Cir. er Compare Curbelo, circuits. United States v. 2001) (holding that failure appoint counsel Cir.2003) ("De 280 n. 6 required by governing rules proceed spite occasionally suggesting dicta ings under 28 U.S.C. 2255 subject "is not implicate structural errors must constitution analysis”). harmless error any event, rights, al clearly held would not need to address this broad issue to that structural errors need not be of constitu decide this case. It enough would be say (citation omitted)), tional dimension.” with id. that Booker structural, constitutional error is (Wilkins, C.J., at 289 ("The dissenting) Su but Booker statutory error is not. preme Court and this repeatedly court have made clear that structural necessarily errors See, e.g., States, 1, Neder v. United 527 U.S. must affect a defendant's constitutional 7, 1827, 1833, 119 S.Ct. 144 L.Ed.2d rights.”). Compare Green v. United (1999) ("Although [the harmless-error rule] 715, (8th Cir.2001) (holding by its applies ..., terms all to errors we have that the prisoner’s denial of a federal statuto recognized a limited class of fundamental ry right to counsel in collateral proceedings is constitutional errors that 'defy analysis by structural and subject therefore not to harm ” "harmless error” standards.' (emphasis analysis), J., less-error with id. (Bye, at 719 added) Fulminante, (quoting 309, 499 U.S. at ("Structural dissenting) appear errors to be 1265)); 111 S.Ct. at id. at 119 S.Ct. at confined to the sphere constitutional because ("Under cases, our er constitutional Congress has mandated application the ror either structural or it (emphasis is not.” by harmless error review statute. Presum added)); Sullivan, 508 U.S. at 113 S.Ct. ably, grave constitutional errors could C.J., 2083 (Rehnquist, ("In concurring) surmount the default rule that harm [Fulminante], we divided the class of constitu analysis (citation error less applies.” omit tional violations that occur during the ted)). Compare United Annigoni, States v. course of criminal proceeding, be it at trial (9th Cir.1996) F.3d ("Although we sentencing, or categories: into two [trial er conclude that the erroneous denial of the rors and structural (emphasis errors].” add right peremptory challenge is not amenable ed)); Abrahamson, Brecht 507 U.S. to harmless-error analysis, we need not de 123 L.Ed.2d cide whether such error rises to the level of (1993) (discussing trial error and struc structural error. The error in this case—the part tural error as "spectrum erroneous consti right denial of a of peremptory errors”); Fulminante, tutional challenge 499 U.S. at simply not amenable to harm —is (''Since 111 S.Ct. at 1265 analysis.”), less-error our decision in (Kozin- with id. at 1150 ski, J., Chapman, ("The other cases dissenting) have added to the right to a cate certain gory of peremptory number of constitutional errors which are not any strikes —or to subject to guaranteed all—is not harmless by .... error Each of these Constitution ..... deprivations Since the constitutional Court has is a allowed similar struc 'possibility of tural defect (émphasis added)); harmless ...." error even when Chap im portant man, rights constitutional violated, U.S. at are I S.Ct. at 827-28 find it hard to ("Although believe the prior our Court would now cases have indicated conclude always that it's that there reversible error to are some rights constitutional so deny a statutory right.” mere basic to a fair trial their that infraction can (citations omitted)). Sanchez, In appear never treated as harmless this state to have question answered this nega in the ment ... any itself belies belief all trial tive. But Corr., Dep’t see errors which violate McGriff the Constitution automat Cir.2003) (holding ically call (emphasis for reversal.” added and appoint failure to required counsel by as omitted)). footnote defendant”; “the to characteristics event, enough it is prejudice. available”; all relevant of sentences kinds Booker is one the distinction say that issued statements policy guidelines implies. itself Commission; to “the need Sentencing disparities sentence unwarranted avoid II. records with similar among defendants found, con- similar guilty of been who constitu implication Booker’s- restitution provide duct; need and the fully is structural corrects it tional error 18 U.S.C. the offense.” any victims struc Court’s consistent (3)-(7). 3553(a)(1), above, Fulmi As noted cases. tural error a “consti structural defines nante model, district court old Under' affecting the ... ] deprivation[ tutional with- the defendant bound proceeds, trial which within framework range unless guideline applicable in the in the trial simply an than rather determined 310, 111 S.Ct. itself.” process circum- mitigating aggravating to overstate difficult It is at 1265. degree, not kind, or to a aof stance the federal affects which extent into consideration taken adequately sentencing framework. in formulat- Sentencing Commission old under both starting point in a result ... should ing guidelines the (post- new model and (pre-Booker) model described. from that different sentencing is 18 U.S.C. Booker) of federal a circumstance determining whether In 3553(a), states which § consideration, into taken adequately was sen- only the consider [could] court suffi- a sentence impose shall .court [t]he statements, policy guidelines, tencing necessary, than cient, greater not but the Sentenc- commentary of official and (A) seriousness to reflect ... ing law, Commission. and respect offense, promote to of- for the just punishment provide to differently, 3553(b)(1). § Stated U.S.C. (B) deterrence adequate fense; afford to to going was way the defendant only (C) conduct; protect criminal old under the departure get downward the defen- crimes of further public from case was showing that his was model (D) the defendant provide dant; and cases.” typical “heartland not within the vocational educational needed 81, 94, 116 Koon v. United care, correc- or other training, medical (1996). L.Ed.2d effective most treatment tional with, To start task. difficult was a This manner[.] already Sentencing Commission “the Sentencing Guidelines considered, and the words, 3553(a)(2). In other 18 U.S.C. in, if all many already factored and the the statute underlying goals of arguably are relevant circumstances “retribution, deter- general are Guidelines The Guide sentencing .... criminal rehabilitation.” and rence, incapacitation, be, them to are, Congress intended lines Mogel, ” & Jose .... Kate Stith comprehensive Cir.1992). (11th selecting n. 2 Sentencing Judging: Cabranes, Fear A. sentence, sentencing court appropriate Courts Federal in the circum- Guidelines nature “the also consider must unlikely Thus, quite (1998). it was history and offense stances the defendant would be able to identify a Commission announced its views on the circumstance that the Commission subject, had al- it was difficult to argue that any together failed to consider.8 And once particular case was atypical or outside the sentencing court determined that the Com- heartland with respect to these issues.9 mission had taken a Rather, circumstance ac- into a party seeking a departure gen- count, the defendant could argue erally accepted his base offense level as a the circumstance present in his point case to starting and then attempted to show some atypical degree. This is because the the case was atypical because it was Commission’s substantive judgment as to committed in an unusual manner or for the significance of the circumstance in a some unanticipated and unaccounted-for heartland case was unassailable. reason warranted downward departure. The comprehensiveness of the Guide- Because the are merely Guidelines advi- lines and the invulnerability of the policy sory under the model, new the defendant judgments on they which rest essentially is no longer limited to arguing that his rendered any evidence a defendant might case is somehow atypical. Such argu- present regarding the need for “adequate ments, course, viable, remain but under deterrence” or the “just need for punish- model new the defendant can also sim- ment” irrelevant under the old ply model. concede that his case is typical and simply reason is that although reason- challenge the wisdom of the Commission’s able may minds differ as to the level of judgment regarding the appropriate pun- punishment needed to adequately deter or ishment in heartland is, cases.10 That justly punish particular offense, once the may simply argue that the ap- 8. Professor Stith and Cabranes further for a sentence applicable outside the guideline ” observe respect that "with to commonly (citation oc- range.' omitted)); United States v. curring circumstances that explicitly Frazier, are not Cir.1992) Guidelines,” addressed (“[District general- courts courts depart not] based on ly ] that the Commission "assume! has al- their perception aof lack of gener a need for ready the taken matter into account.” Stith al deterrence. 'It would be difficult to imag Cabranes, & supra, is, at 102. That if the ine finding a Sentencing that the Commission rare, circumstance is not the Commission failed to adequately consider general the de must be aware of it and therefore its omission terrent effect the of criminal law .... Dis must mean that the Commission does not trict courts justify must departures by their significant think it to sentencing policy. reference to particular to the factors defendant Thus, question "[t]he real is not whether the that the inadequately Guidelines considered.' actually Commission took some factor Thomas, into [United 323, States v. 327 account,' but whether the Cir.1990)] factor is rare (emphasis added).”). enough to a presumption overcome that the 10.See, e.g., Jaber, United States v. has Commission it taken into 362 account.” Id. 365, 368-76, F.Supp.2d 380-82, Koon, (citing 102-03 110-11, 2005 518 WL U.S. at 605787, *3-9, (D.Mass. 2052). 16, 13-15 116 S.Ct. at March 2005); United Carvajal, States v. 2005 WL See, e.g., Davis, 141, United States v. 98 (S.D.N.Y. Feb.22, at *5-6 2005); (4th Cir.1996) ("Davis 145 argues that a Biheiri, sen United States v. F.Supp.2d 356 tence of less than the years 30 ... would (E.D.Va.2005) ("No n. 6 individual provide just punishment .... 3553(a)] Davis’ claim [§ factor is singled out-as having ... years less than would be greater sufficient instead, weight; the of richness factu misplaced. is The commentary to the sen diversity al in cases calls senténcing judges tencing guidelines states: with 'dissatisfaction to -consider all of the factors and to accord sentencing range deserves, available preference or a weight each factor the it under the for a different sentence than that Thus, authorized circumstances. the Guidelines sentenc by guidelines is not appropriate an ing range basis is not entitled 'heavy weight,’ but policy If those .... tending Commission than “greater is sentence guideline plicable mandatory, longer no are decisions purposes to achieve

necessary” disagree with is free judge U.S.C. Act. Reform Sentencing (Sca n. 3 Booker, at 790 them.” ... are 3558(a). Guidelines “[T]he § dissenting).11 lia, J., the Sen- by decisions policy product practices past departed from fashioning just Commission a starting point in is a useful it crimes for such setting levels offense sentence.”); v. States United appropriate and Consequently, trafficking. drug (N.D.Ind. and fraud *4 Nellum, WL and experience own on its also Army and based ("The is Feb.3, 2005) also sentencing, the familiarity state court with discharged. Un honorably veteran, who was imprison- ranges of Guideline court finds military is not service ... guidelines, der the ap- reliable are less crimes those ment for appropri arriving at an ordinarily relevant of fair sentences. praisals very Yet, Court finds ate sentence. honorably served a defendant relevant "market- quantity-driven, Guidelines' history The and considering his country when his to dis- contributes approach also (citation 3553(a)(1).” oriented” §See characteristics. sentencing. drug unreliability in Galvez-Barrios, parity and v. omitted)); States United developed pun- system was quantity (E.D.Wis.2005); United F.Supp.2d 958 harshly, but more bigger distributors ish F.Supp.2d Huerta-Rodriguez, 355 v. States a conspiracies over charging practices of (D.Neb.2005); Unit 1029-30 aggre- the result time has long period of F.Supp.2d 1027- Myers, 353 ed States as to so Jones, many distributions small gating 2005); (S.D.Iowa quantity distributor long-term small amake (D.Me.2005); Unit F.Supp.2d For large-quantity distributor. look like Ranum, F.Supp.2d ed States responsible for sell- a distributor example, bind ("The guidelines are (E.D.Wis.2005) times a hundred gram at time ing one justify sentence need not ing, courts caught as the dealer sentence gets the same take the by citing factors that themof outside only once. grams selling 100 Rather, courts 'heartland.' case outside F.Supp.2d at 1025-26 Huerta-Rodriguez, 355 cases and disagree, in individual are free omitted). Similarly, another (citations 6& n. discretion, the actual the exercise observed, judge district long as so guidelines, range proposed under out pointing worth [I]t is and care is reasonable the ultimate weight narcotics is guidelines, the to the tied reasons fully supported the sentence. driving behind force factors.”). 3553(a) every well aware that government made, quantity buy controlled likely to dis- particularly 11. Courts increased, sentence. is the so drugs deriving ranges from guideline agree with the follow- to this in ais randomness There drug quantities tied to levels base offense range guideline defendant’s] ing [the sense: amounts, long been have which dollar if decreased significantly been have would -Booker, dis- several subject criticism. Post of [undercover] first after the arrested he was as much. already indicated courts trict buy. Un- the fourth after buy ... and not an- court example, one district For fortuity increased guidelines, this der nounced, months range from guidelines [his] Indeed, on the months. part on statis- ... to 168-210 in are based Guidelines [T]he to, they hand, sentencing wanted the officers if other analyses pre-Guidelines of tical statistics, con- additional have made probably could those on practices. Based defendant] and buys [the from levels trolled the offense established Commission to him drugs attributable weight crime, total ato recommended linked for each his higher and so too even many have been Accordingly, would in range. imprisonment ... guidelines. It is under sentence cases, represent reason- the Guidelines nature the random ignore range. difficult sentencing of a fair able estimation reality. plays out in system how the However, and because policy reasons *5; see also Nellum, at 2005 WL many mandatory dictated minima WL Jaber, at F.Supp.2d guidelines, the drug-trafficking terms Subject to review for reasonableness, guidelines, under the courts are general- district judges are now to apply free their ly forbidden to consider the defendant’s perceptions “own just punishment, age, de- his education and skills, vocational terrence, protection and public even his mental and emotional condition, his when these differ from the perceptions physical condition including drug or al- the Commission members who up drew cohol dependence, his employment rec- Guidelines.” Id. at 790. Although ord, “judges his family ties and responsibilities, must still consider the sentencing range his status, socio-economic civic his and contained in Guidelines, ... range military contributions, and his lack of is now nothing more guidance than a suggestion youth. as a The guidelines’ may may or not be persuasive prohibition ... of considering these factors when weighed against the other numerous cannot be squared with 3553(a)(1) § 3553(a)].” considerations listed [§ requirement Id. that the court evaluate the (Stevens, J., dissenting). Indeed, “history as and characteristics” of the de- one judge district has already observed, fendant.

the remedial majority in Booker [] di- United Ranum, States v. 353 F.Supp.2d rects] courts to consider all of the (E.D.Wis.2005) (citations omitted). 3353(a) factors, many of which the Thus, mitigating circumstances and sub- guidelines reject either or ignore. For policy stantive arguments that were for- example, 3553(a)(1) under § a sentenc- merly irrelevant all but the most unusu- ing court must consider “history al cases12 are now potentially relevant in characteristics of the defendant.” But every case. ("Drug at *12 quantity may See, well be a e.g., United Lacy, States v. accident, kind of depending on the fortuities F.Supp.2d (D.Mass.2000) (footnotes law market, enforcement or even the omitted): much as it reflects the culpabili- defendant's ty.”). [W]hile the judge emphasis district Guidelines' quanti- on Nellum noted also ty the guideline sentencing history criminal disparity high be- drives these tween sentences, crack powder cocaine and sadly, factors, cocaine was other which I be- likely to abe controversial and recurring is- lieve bear directly culpability, hardly in sue hearings conducted under count all: drug addiction, Profound model, the new although he concluded that dating sometimes extremely from young he impose could appropriate ages, the fact that the subject offender was addressing without it directly in that case. abuse, to serious child abandoned one Nellum, *4; 2005 WL cf. other, parent or the little or no education. Wilson, States v. 350 F.Supp.2d Nor I consider the fact that the disar- (D.Utah 2005) (arguing that the Guidelines ray so clear many lives of of these generally public opinion, reflect with one no- defendants appears to be repeating itself in table exception being "the Guidelines' differ- generation: the next Many have had chil- entially harsh treatment of distribution of young at a age, dren repeat and the volatile (as crack cocaine caine)''). compared powder to co- relationships girlfriends with their that Recently, Smith, in United States v. parents may their have had. surely And I F.Supp.2d (E.D.Wis.2005), another cannot the evaluate extent lengthy district to imposed which court a lower sentence than that incarceration by called will problem, for exacerbate the Guidelines to the avoid an separating disparity "unwarranted the between defendant defendants from whatever convicted possessing family powder have, relationships cocaine and he or the defendants convicted of possessing impact crack co- on communities young when these

caine.” Id. at 781. men return. illegal an sentence.” to serve are defendants errors Booker constitutional That Paladino, F.3d States affecting United ... deprivations “constitutional Cir.2005). [sentencing] which within framework the Fulminante, at proceeds,” rule, should we such a adopting Before It inescapable. 1265, is thus at might in the record what least consider “consequences their that clear equally is believe” ... reason “provide[d] have in- and necessarily unquantifíable are ... been have sentence would lesser that Sullivan, determinate.” sentenced Rodriguez been had imposed rec- Indeed, panel the at 2083. sentencing theAt new model. under the whether it “ask[ed] when this ognizes argued might have defendant hearing, the a dif- probability a reasonable there “greater sentence his guideline that had been guidelines if the result ferent necessary” to achieve than binding advisory instead applied 3553(a). More identified purposes fashion”: pre- have might the defendant specifically, with law-enforce- judge the district sented we don’t is that answer obvious that the need tending to show data ment in this judge court If the district know. respect is low with deterrence general for or increasing liberty of had case particu- in his offense particular his above Rodriguez’s sentence decreasing guideline his community, and that lar might he range, guidelines or below unnecessarily high. Al- sentence, range therefore longer Rodriguez given have have ar- might ternatively, defendant sen- a shorter given might have he or circum- history or personal his that gued the same given tence, might have or he culpable him less render somehow stances no rea- provides record sentence. than crimes future likely to commit less or likely is more any result to believe son course, none of Of suggest. the Guidelines know. just don’t We other. than the likely argument of evidence type not see I do 1301. Rodriguez, pre-Booker of a in the record found to be Sixth Rodriguez’s can dismiss how hearing.13 that ground on the claim Amendment result- prejudice attempt assess Any to be- reason no provides “[t]he record therefore, pure is, ing from a lesser received he would that lieve” statutory involving In cases Or, guesswork. as the model. new under the sentence necessary guesswork, it is only, fathom error it, “cannot I put Circuit Seventh clearly indicated to con- wants Circuit Eleventh why the plain-error harmless-error of criminal fraction unknown some demn agree I so during volved district court Alternatively, if "the inquiry was neces- prejudice panel that view its times senténcing expressed several estab- agree that the sary. I also required the Guidelines sentence that the Indeed, understand I do not prejudice. lished severe,” "unfortu- it was stated was too emphasize that need felt the why the court ser- overstated Guidelines that the nate[]” together con- taken these comments history, “[a]ll criminal defendant's iousness a reasonable [was] there [it] vincefd] under possible sentence the lowest imposed have im- court would district probability Guidelines, even that and remarked not felt ... if it had sentence posed a lesser then appropriate,” than was "more I at 1332-33. Id. Guidelines.” bound Rodriguez stan- satisfy the will the defendant circum- these one Shelton, think should dard. United sufficient. standing would alone Cir.2005). stances in- (11th 1325, Shelton

1291 apply doctrines to such Again, cases. amI firmly thus convinced that Booker given reasonable that these defendants error is constitutional structural error. have suffered no actual constitutional Part, de the next explain I the significance of privation. when, But case, as in this this conclusion in plain-error context. constitutional, error is the fact that its wholly effect “unquantifiable and in III. determinate,” Sullivan, 508 282, U.S. at 2083, 113 S.Ct. at reinforces its structural It is clear that structural errors not are sense, nature. In this Booker error is subject to harmless-error analysis and similar to types other of error that fit therefore always require reversal if a time very within the limited class of ly objection structural Fulminante, made. errors. supra See note 1 (listing structur 309-10, U.S. 111 S.Ct. at 1264-65. Rod errors). al is, It for example, similar to riguez did not raise a objec constitutional Gideon error in just as we cannot sentence, tion to his however, so the ques know what evidence a capable attorney tion here is how structural errors are to be might uncovered, have what favorable tes treated under the plain-error test.14 The timony might he elicited, have or what Supreme Court has never squarely ad persuasive arguments he might have issue, dressed this but on several occasions made, we also cannot know what evidence it has suggested that structural are errors argument might pre subject to the substantial-rights prong sented had he been sentenced under the plain-error test. See United States new sentencing model. It is also similar to v. Dominguez Benitez, 542 U.S. an erroneous reasonable-doubt instruction, 2339-40, 159 L.Ed.2d 157 just as such a misinstruetion (2004); “vitiates Cotton, U.S. all jury’s findings” so that appellate 625, 632-33, 122 1781, 1785-86, court can do no more than “engage in pure (2002); L.Ed.2d 860 Johnson, 520 U.S. at speculation view of what a reasonable —its S.Ct. at Olano, 1549-50; jury done,” would have Sullivan, 508 U.S. 113 S.Ct. at 1778. Similar 113 S.Ct. at 2082 — all canwe do is statements can be found in a number of speculate as to what a reasonable sentenc see, our opinions, e.g., McCoy v. United ing judge might have done under the (11th 266 F.3d new 1252 n. Indeed, model. are one Cir.2001) sense worse (“Apprendi error ais constitu off because a court assessing an error, erroneous tional subject plain- or harmless- reasonable-doubt instruction can at review, least error. and does not create a struc assume that the remaining record was not error.”); tural Smith, United States v. affected instruction (11th Cir.2001) whereas (“[Fjailure I think we assume, must if anything, that a submit the issue of drug quantity to the defendant such as Rodriguez would have jury did not affect Defendants’ substantial done something different under the rights. new Apprendi did not create a struc model. tural error that require per would se re- did, Rodriguez however, object to the dis- drug quantity tion at sentencing, the defen- trict court's calculation of the number of preserves ec- dant challenge Booker-based stasy tablets involved in the offense. The his sentence and is entitled to newa sentenc- Eighth Circuit "has held ing when a defen- proceeding.” Sdoulam, United States v. objects dant to a District Court's determina- Cir.2005). under se reversible per are errors Frost, tural F.3d v. States

versal.”); United Johnson, 520 standard, see plain-error the Cir.1998) (discussing John (11th 856, 859 Recio, 1548; at 466, 117 S.Ct. at cir U.S. of other those as son, well as supra), David, at 647- F.3d 4; n. Bruno, at 1100 v. States see, cuits, e.g., United affirm cannot that we mean v. it does but Cir.2004); States (2d United 65, 79 F.3d is unable (3d defendant the because simply n. 6 &285 Adams, 252 F.3d were af rights Wilson, 240 that his substantial show States Cir.2001); United Moreover, (D.C.Cir.2001). fected. 39, 44 F.3d ad squarely have that circuits

those not sub- are errors Because structural structural that held have this issue dressed pan- the analysis, substantial-rights ject to substantial-rights to subject not are errors States, v. United Jones reliance el’s or, plain-error the analysis under test — 144 L.Ed.2d 373, 119 S.Ct. have presumed to differently, are stated Jones, defen- (1999), misplaced. rights. substantial the defendant’s affected erroneously jury was that the argued dant Recio, 371 F.3d States United See not reach if could that to “led believe Cir.2004); (9th he recommendation unanimous sentence Cir.1996). 638, 646-47 David, judge-imposed receive would at Id. imprisonment.” be life errors should than less severe That structural first The Court analysis 2100. at substantial-rights 384, 119 S.Ct. to subject at Id. Indeed, committed. Federal error was that me. held no obvious seems It then ex- 389-90, read at 119 S.Ct. Procedure Criminal Rule arguendo, assuming, structural- “[e]ven that Court’s Supreme plained light of (and it was that Rule conclusion. occurred cases, an error compels that error “[a]ny er as and further error 52(a) plain),” harmless defines substantial not affect does ... that ror confused jurors were assuming that 52(b) says that we And Rule rights.” deadlock, peti- consequences over sub affects that error “[a] correct neces- the confusion show tioner cannot Thus, when rights.” stantial It his detriment. sarily worked “defy errors structural said jurors, loath likely that just as standards,” by ‘harmless-error’ analysis sentence, would a lesser recommend at 309, Fulminante, at 499 U.S. of life on a sentence compromised have “defy” errors that structural it meant sentence. on a death imprisonment substantial- analysis, for substantial-rights alleged error anof effect Where analysis harmless-error analysis and rights meet cannot uncertain, a defendant so Olano, the same. one are error showing burden his that the (stating 734, 113 rights. his substantial actually affected is that the two between difference at 2105. Id. at of persuasion the burden bears only that such responded in Jones dissent un the Government the former under satisfy the substantial- uncertainty should latter). imagine how I cannot der “I test: plain-error prong rights anal substantial-rights “defy” would It position. ... to that demur would 52(a) Rule under but not Rule under ysis confuse potential suffice should cannot Therefore, errors 52(b). structural could i.e., instructions existed, plain- prong third subject to the Id. death.” jury toward tilted the struc- not mean does This test. (6th Cir.2005). J., 369, (Ginsburg, at 2115-16 379-80 The Ninth Cir- words, position In the dissent cuit also took this dissenting). initially, though other only granted rehearing that the defendant had made a it has since en argued banc. Ameline, that the error affected v. showing sufficient United States 400 F.3d (9th Cir.2005), rights, reh’g granted, not that he was not 654 en banc his substantial (9th Cir.2005). Indeed, majority Neither the 401 F.3d 1007 required do so. concept only mentioned the real opinions nor the dissent ever difference between these Nor, mat- of “structural error.” for that and mine is that mine offers a more satis- Jones, ter, parties factory either rationale for did its result. See infra addition, argument. Eighth in the briefs or at oral note 19. In yet still weigh in on significant this issue with a not It is clear Jones did involve opinion, and the Tenth Circuit has ad- and, therefore, structural error does not only statutory dressed Booker error. See Instead, case. Jones an resolve this Gonzalez-Huerta, United States v. general nounces a rule thumb that the (10th (en banc) Cir.2005) only speculate loses if as we can (“This presents case us with a non-consti- by an prejudiced to whether he was ordi error.”). Thus, tutional Booker I do not object. nary trial error to which did not my opinion nearly believe that so radical if, example, not apply Jones would for Judge suggests. as Carnes judge forgot give a reasonable-doubt and the defendant did not instruction ob Booker, the Court instructed that “in ject; is, “Well, say, we could not involving cases not a Sixth Amendment object, just defendant did not and we don’t violation, resentencing whether is warrant- what, any, prejudice know if this omission ed whether it will instead sufficient be him, plain-error caused so he fails the to review a sentence for reasonableness Because Booker constitutional test.” error may depend upon application of the harm- structural is also Jones does Booker, less-error doctrine.” 125 S.Ct. at here apply either. added). (emphasis Judge Carnes fair-

ly what I from in- summarizes infer 1) struction: the harmless-error doctrine IV. ... apply involving does not to “cases 2) violation”; says, Judge ergo, As Carnes no federal court Sixth Amendment held, would, I explicitly “involving Booker Booker errors a Sixth Amend- e., constitutional error is structural error. ment violation”—i. constitutional Booker Ante, errors, technically only at 1262-64. accu errors —must structural for While rate, defy this statement is at least a little structural errors harmless-error anal- 3) all, Third, Fourth, and, misleading. ysis; ergo, After all constitutional appear rights plain- and Sixth Circuits to think that errors affect for substantial ante, every purposes. Booker constitutional error affects See 1264-65. rights, really Judge says, substantial which is all that Carnes “Never has so much calling Propo- such error “structural” means in been inferred from so little.” Id. See, are, however, plain-error e.g., context. sitions and 3 this chain uncontroversial, relatively do not Spivey, 2005 WL *5 and I (3d 2005); Mar.22, disagree Cir. United States understand Carnes is, Hughes, 401 F.3d Cir. them —that it is clear that struc- 2005); Oliver, defy analysis tural United States errors harmless-error Ante, always ry.” says

and that structural errors affect at 1265. He that it contra such, Judge rights. substantial As Carnes expectation dicts Booker Court’s really only proposition takes issue with doctrines, “apply ordinary prudential I believe that I make sound case Part determining, example, whether the is I regarding that the Court’s statement sue was raised below and whether it fails involving cases not Sixth Amendment er- Booker, ‘plain-error’ test.” if superfluous ror would be it does not at 769. This simply is not so. In cases means, I it my mean what conclude but error, involving only statutory Judge point my main here is that the extent of would, think, I I apply Carnes and propo- inference should not be overstated: plain-error way. test in much the same logically sitions 2 and 3 follow if proposi- involving And even cases constitutional accepted. tion 1 is I would require the defendant Judge argues satisfy Carnes then the fourth prong of the test.15 “[t]here Thus, are all of problems [my] my kinds with theo approach is in no sense con Shelton, Judge says my approach Carnes to the 400 F.3d at 1333-34. plain-error test will result expect in all sentences I do that in most cases involving being constitutional error satisfy vacated. prong will also plain- the fourth of the so, says, he This is because "Shelton effective satisfy error test if he is able to the third ly prong plain if, adds that where the third of the prong. example, But for the Government cases, error test is met in [Booker] the fourth expressed could show that the district court Ante, (citing one will also.” at 1262 Shel strong impose desire to a more severe sen- ton, 1333-34). 400 F.3d at That is not how I permitted tence than the Guidelines because does, fact, read If that Shelton. case hold easily by of circumstances not countered miti- prongs that the third and fourth of the test evidence, gating declining plain to correct the cases, always go hand-in-hand in Booker "miscarriage error would not lead to a certainly subtly. passage Judge does so course, justice.” panel’s ap- Of under the Carnes cites states: proach, get such a defendant would never plain affecting A rights past error substantial prong plain-error the third of the test not, more, such, satisfy plain- does without anyway. part Judge As of the reason test, prong error for otherwise my approach the fourth Carnes thinks that would mean and the discretion afforded the fourth involving that all sentences constitutional er- prong illusory. would be We conclude satisfy plain-error ror would test ais prong the fourth is established aspect here and direct panel opinion result of an of the that an exercise of our discretion is war- disagree with which I and would not follow. that, particular ranted in this case. addressing I also statutory note error The district only, court in this case indicated recently rejected the Tenth Circuit express impose proposition desire to Judge sentence less- for which Carnes reads range er than the low end of the Guidelines Shelton to stand: imprisonment, matter, of 130 months' preliminary and the Su- As a we note that in preme plainly Court in Booker indicated the wake of appeals Bookerseveral courts of that the district court now has collapsed the discre- prong the third and fourth so, provided resulting tion to do analyses. say, sen- That is to if these courts find 3553(a) light satisfied, tence is reasonable in prong of the they the third conclude that circumstances, factors. Under these prong defen- fourth is met aas matter of dant Shelton has carried his burden to es- course. We ap cannot subscribe to this prong tablish the fourth proach. has shown that clearly The Court in Olano held plain error affected his affecting substantial that "a substantial fairness, rights not, seriously more, rights also affected the satisfy does without integrity public standard, reputation judicial ... for otherwise the discretion proceedings particular 52(b) in his case. illusory.” Accord- afforded Rule would be Gonzalez-Huerta, ingly, we vacate Shelton’s sentence and re- 403 F.3d at 2005 WL (citation resentencing omitted) mand consistent (quoting with at *6 Ola no, 1779); Booker. 507 U.S. at see flict expectation Court’s That with does mean that we believe fact regarding applicability every gives plain- rise to a Sixth reasons, Amendment violation. ... For the same in cases [And] test. it is not involving a Sixth Amendment entirely viola consistent the Court’s state tion, resentencing whether is warranted or “every ment that not appeal will lead to a whether it will instead be sufficient sentencing hearing.” new Id.16 review a sentence for reasonableness my Carnes next attacks distinc depend upon application of the harmless- tion between constitutional errors error doctrine.” (emphasis added and cita errors, arguing that sup it lacks omitted)). tions differently, Stated statu Ante, port “in or logic.” law at 1267. tory Booker errors merely byproduct are a Apparently, he thinks that there is no dif of “unnecessarily Booker' s remedy,” broad ference between a case in the defen which (Stevens, J., id. at 788 dissenting), whereas rights constitutional were violated dant’s constitutional Booker errors are violations they and a case in which not. I think were that, the Sixth Amendment requirement that Supreme there is. The Court seems “[ojther conviction, than the fact of a prior so, Booker, to think too. See any fact penalty that increases the a (“[W]e apply today’s holdings— must beyond prescribed crime statutory both the holding Sixth Amendment and maximum jury, must be submitted to a and interpretation our remedial of the Sentenc proved beyond a Ap reasonable doubt.” ing all Act —to cases on prendi, direct review. 120 S.Ct. at 2362- Gonzalez-Huerta, also 403 F.3d at arguments. 741 n. dants’ structural-error For the J., (Ebel, reason, WL *12 n. con same Cotton and Johnson also neces- ("I curring) agree majority sarily with both plain-error applies hold that test opinion Judge errors, and, and with Hartz we cannot that even so structural far as I have discovered, prongs conflate the third and fourth of the appeals no court of has held oth- Rather, plain-error analysis. we must ad Judge opinion erwise. Carnes's is inconsis- inquiries separately.”). these two dress holding, says tent with as he all but that argues Carnes further it would that per structural errors are se reversible even justify be "difficult to that an conclusion plain-error context. 'seriously error structural does not fairness, Moreover, integrity repu- public ] or paragraph, in the same affectf ” that, stated, judicial proceedings,’ tation and apply today's Court also "[W]e must discovered, far holdings "[s]o as can be court holding no has the Sixth Amendment —both actually” interpretation ever reached such a conclusion. and our of the remedial Sen- Ante, Olano, (quoting at 1266 tencing 507 U.S. at Act'—to all cases on direct review. 1776). Court, 113 S.Ct. at how- That fact not mean that we believe that does ever, every gives has twice concluded sentence rise to a Sixth Amend- Booker, satisfy prong plain- failed to the fourth ment violation.” 125 S.Ct. at 769. assuming panel’s test even approach error the error renders the observation plain "every was both and gives claimed Cotton, structural. See that not rise to a Sixth 632-34, 535 U.S. at superfluous at 1786- Amendment violation” because 87; Johnson, Rodriguez progeny U.S. at 117 S.Ct. at treat all Booker errors ante, Although ("Be- actually exactly the Court 1549-50. did not the same. See at 1262-63 say that the errors it addressed these cases cause the effect of Booker error is the same structural, that, necessarily regardless type, were our held decisions no make general, structural errors do per not se affect functional between distinction constitutional fairness, integrity, public reputation purposes error. For Otherwise, rule,

judicial proceedings. unpreserved unpre- the Court error is error."). required have would been the defen- reach served only guess as overwhelming, we can still con- Moreover, Judge Carnes 63.17 im ante, judge might n. this court sentence the cedes, at 1267 what see advisory-guideline regime. constitutional already once that under an posed stated errors. See San- structural therefore, errors can be whether We, know cannot chez, 41.18 at 1272 n. substantial the defendant’s error affected constitutional why This is rights. Sanchez, relies Judge Carnes then Apprendi though error is structural even Apprendi “that holding its arguing Booker, Apprendi error was not. Unlike ques not structural answers error is alter the fundamentally did structural, Booker error tion of whether framework, Apprendi and the effects of application Ap Booker is because as the just as determinable error were Ante, at 1268. once removed.” prendi of trial error. other sort effects obviously wrong. Be This statement court, Indeed, opinion in an of this panel binding still were cause Guidelines already joined, has observed Judge Carnes reviewing Appren- a court post-Apprendi, Sentencing in the “Blakely whether simply could determine di error judicial ... was versus Guidelines context any judicial fact- supporting the evidence sentencing enhance jury fact-finding of to submit so clear that failure finding was entirely from the and is ments harmless; was, if it different jury was the issue to under Booker now know exist error we precisely be the error was harmless then Sentencing Guidelines.” United as to the binding. were still cause the Guidelines Shelton, 1325, 1333 n. 12 sup if the evidence post-Booker, But even added). (11th Cir.2005) (emphasis by judge all facts found is porting remedy im- Court's for the unconstitutional has also noted the dis- 17. The Tenth Circuit plications and non-con- of the Guidelines. This discon- tinction between constitutional See stitutional Booker the constitutional violation errors. nect between Gonzalez-Huer- ta, WL at *4. It unique.... 403 F.3d at remedy and the Booker makes error is that Booker "[held] non-constitutional fortuity of the Court's choice to excise error,” at but did not id. not structural 3553(b)(1), remedy instead of a 18 U.S.C. Booker error. the issue of constitutional reach underlying directly con- more related to do, concluding, non-constitutional In as I that key problem, to our determi- stitutional is structural, (or statutory) it not is Court's erroneous— nation that District implied Court has Supreme observed that the constitutionally although erroneous— not "generally speaking errors structural that mandatory application of the Guidelines is minimum, must, er- at a be constitutional miscarriage egregious particularly or a not Id.; accompanying supra 7 & rors.” see note justice. same). (collecting observing the text cases and Gonzalez-Huerta, WL F.3d at opinion, also Later in its the Tenth Circuit agree Although at *8. I do not con- noted the normative difference between analysis, agree I do of the Tenth all Circuit's statutory Booker errors: stitutional important an distinction between that there is statutory Booker errors. constitutional and com- [the defendant] The error of which plains first rec- is not the substantive may Judge be correct that San- Carnes Blakely sought ognized in and which Booker Ante, "pure is dicta.” statement chez’s namely, the Sixth to eliminate — such, suggest is I do not that he 1267 n. 4. As judge, is when a rath- Amendment violated surprise My only is that it. Id. "bound” mandatorily jury, than a facts that er finds opinion an en banc what this court said—in Rather, sentence. increase defendant’s joined than four Carnes the District the error in case—that [this] —less thought obviously ago today years is so mandatorily— applied the Guidelines wrongheaded. as it runs afoul of the error insofar depend most monumental Finally, Judge argues that inferential Carnes argument a defen- mitigating evidence entirely it leap, and consistent with the post-Booker might present under the dant in opinion Court’s Booker. The in already model should sentencing I distinction draw between constitutional arguably it relevant record because ample Booker errors has (pre-Booker) determining defen- fact, in support logic; law and it is not guideline-man- within his dant’s sentence unprecedented even this circuit. Final- - ante, at 70. This range. dated See ly, Judge opinion grounded Carnes’s respect be the case with to some large faulty part assumptions on the evidence, ignores but it types mitigating Apprendi error and Booker error are es- reality suggest is true across the sentially really the same and that Booker although For it was theo- example, board. change won’t do that much to type retically the old model for a possible under argument presented the evidence and to seek a sentence the low sentencing hearings. federal mandatory guideline range of a end presenting statistical evidence had overestimated Sentencing Commission V. general need for deterrence with re- agree I with the panel tend particular to his offense in his com-

spect munity, personally automatically equate I never heard of such case that we cannot Now, however, argument being made. imposition with the prejudice extra-ver- policy judg- Sentencing such Commission enhancements, dict since these open any given are to attack in case. ments same enhancements must be considered completely I under the new model.19 sum, my opinion nearly is not so agree panel it that we cannot know Judge suggests, novel as Carnes does with essentially position by apply plain-error This is taken instruction that test E.g., Sixth Circuits. United States pending Fourth and to cases on direct review. 540, Hughes, 401 F.3d 547-55 Cir. Second, Seventh, and D.C. Circuits Oliver, 369, 2004); United States v. 397 F.3d adopted approach the novel of remand (6th Cir.2005); see United States 379-80 also ing all Booker cases to allow the district court Ameline, 646, (9th Cir.2005), 400 F.3d to determine whether the defendant's sub reh’g granted, vacated and en banc 401 F.3d require rights so as to a stantial were affected (9th Cir.2005). practice, ap In sentencing hearing. new See United States proach reaches the same result as mine in 764, 783069, Coles, 2005 WL at *1 403 F.3d involving My dis cases constitutional error. (D.C.Cir. 2005); Apr.8, v. Cros United States agreement goes only reasoning. to its It is 103, Cir.2005); (2d by, 117-118 Pa 397 F.3d say a actual inaccurate to defendant has ladino, 401 F.3d at 483-85. To the extent ly established effect on his substantial distinguish approach that this fails to between rights guess only if we can as to what sen error, constitutional and is incon might get sentencing tence he under the new opinion. sistent with the Booker remedial short, require model. In these courts Moreover, significant given be differences rights defendant to show that his substantial models, new tween the old and only they were affected to find that were in error, only way a "the to know whether different every involving case constitutional imposed under ad sentence would have been simply say that whereas I would no such visory actually guidelines” is to hold a full showing required. To the extent that some Paladino, (Kanne, hearing. at 488 automatically vacating 401 F.3d courts are sentences J., error, rehearing dissenting from the denial of en only statutory e.g., that involve banc). McCraven, 693, court is to If this is what the district States v. do, (6th Cir.2005), approach then this is no more efficient this cannot be correct because hearing, simply remanding meaningless for a new it renders Court's than reasons, what effect Booker error foregoing had Rodri I dissent from the deni- I guez’s rehearing sentence. take different lesson al of en banc. uncertainty, though. from this Because its necessarily unquantifiable effects “are BARKETT, Judge, Circuit dissenting

indeterminate,” Sullivan, 508 U.S. 281- rehearing from denial of en banc: 113 S.Ct. and because Booker matter, agree As an initial I dramatically “affect[s] framework Tjofiat that presented issue here is [sentencing] within which proceeds,” Ful eminently worthy of en minante, banc review. Fur- S.Ct. at thermore, I reasoning extremely find his 1265, Booker error is structural in nature. However, persuasive. Moreover, assuming even treating Booker constitutional constitutional Booker error is not “struc- error as structural error give would effect tural,” I believe that panel erroneously to the distinction Booker draws between applies constitutional and Jones v. United statutory error. 527 U.S. See at 769. 119 S.Ct. L.Ed.2d 370 (1999), instead of United States v. Domin- panel errs accepting Booker’s Benitez, guez invitation “apply ordinary prudential (2004). 159 L.Ed.2d 157 doing, so doctrines” without following implicit its in- panel erroneously requires the defendant they struction as to how should be applied. prove rights” his “substantial were result, Id. As a it erroneously requires preponderance affected of the evi- Rodriguez prove an effect on his “sub- dence, instead requiring him prove rights.” stantial important This an issue that, probability” “reasonable but panel’s because the opinion imposes a vir- for the the outcome of the district tually impossible burden large on a class court proceedings would have been differ- defendants whose cases are in the still ent. pipeline appeal. on direct Our rule will “condemn some unknown fraction of crimi- Rodriguez1 ais Booker “pipeline” case nal defendants to illegal serve an sen- wherein the defendant was unconstitution- Paladino, tence.” ally F.3d at 484. The sentenced before Booker was decided panel deny does not that this is the case. preserve but did not the error for appel- It concedes that it way has no of knowing late Conceding review. that the defendant Rodriguez whether serving an illegal had met the prongs first two “plain the Rodriguez, test, sentence. 398 F.3d at 1301. Rodriguez error” ques- addressed the minimum, At a we know that his sentence posed by test, tion prong the third of that imposed in an unconstitutional man- whether the defendant prove could Nevertheless, ner. panel the refuses to the constitutional violation affected his grant a sentencing hearing. new For the rights.” Rodriguez, “substantial I would involving do in all cases Finally, by remanding constitution- rors. even cases in- If, however, al error, error. volving only the district court approach this remand, only going "quick to take a look” on fails to relieve district courts of the J., (Ripple, dissenting id. at 486 from the limiting paragraph burden the final of the banc), rehearing denial of en then it overlooks opinion Booker remedial seeks to avoid. change

the wrought fundamental Booker has in the federal Rodriguez, framework and 1. United fails States v. 398 F.3d 1291 fully remedy (11th Cir.2005). structural constitutional er- Rodriguez Although at 1299-1300. held that if the the panel repeatedly cites equipoise, is in the defendant has evidence probability” “reasonable standard of proof. met his Id. I believe burden Dominguez Benitez as the touchstone of holding conclusion conflicts with the inquiry, its talismanic repetition of the Benitez, indeed, Dominguez applies and proper necessarily standard does not test, preponderance of the evidence application. translate into its faithful De- proof Dominguez spe- Benitez standard spite panel’s repeated assertions to the cifically rejected. id., contrary, 398 F.3d at applies appears test it “pre- identical to a Benitez, Dominguez ponderance standard, of the evidence” (1) specifically clarified: that a de- Dominguez standard explicitly Benitez re- proves fendant that an error affects his jects as excessively stringent. Rodriguez rights by establishing substantial a “rea- that: states that, probability” sonable but for the court proceed- outcome district equally plausible it is that the error if (2) different;2 ings would have been that a defense, ivorked in the de- favor of probability reasonable of a different result loses; if the effect of the error fendant is one that is “sufficient to undermine con- is so uncertain that we do not know fidence in the outcome of the proceeding;”3 which, either, if side it helped the defen- (3) and that this probability” “reasonable dant loses. Where errors could have cut standard from the differs “less defendant- way exists, either uncertainty ” friendly likely ‘more than not’ prepon- burden is the decisive factor in the third derance of the evidence standard.4 test, prong and the burden is on the defendant.

I agree that the defendant bears the proving proba- burden of this “reasonable added). (emphasis Id. at 1300 However, bility.” I believe the defendant Requiring quantum beyond proof (1) meets this showing burden that: equipoise preponderance is the of the evi- guidelines mandatory were and that noth- dence preponder- standard. Under the ing the record indicates that the district test, ance of the evidence the defendant court applied guidelines in a non-man- loses when the evidence in equipoise (2) fashion;5 datory nothing present slight because he did not record indicates that the district court quantum necessary tip of evidence apply would greater the same or a sen- See, new, balance advisory equipoise tence on remand under the from to his favor. guidelines. e.g., Agen- Nat’l Lime Ass’n v. Envtl. Prot. Benitez, Dominguez 2. prove by preponderance 124 S.Ct. at 2340. a of the evidence things but for error have been would .that (internal omitted) (cit- quotation 3. Id. marks different.”). 668, ing Washington, Strickland v. 466 U.S. 694, 2052, (1984), 104 S.Ct. 80 L.Ed.2d 674 Booker, example, 5. For in the district court in 667, Bagley, and United States v. 473 U.S. apply appli defendant Fanfan's case did not 682, 3375, (1985)). 105 S.Ct. 87 L.Ed.2d 481 provisions guidelines though cable of the even (Scalia, J., concurring they mandatory 4. Id. at 2342 in the were at the time. United added); judgment) Booker, - U.S. -, 738, (emphasis see also id. at States v. 125 S.Ct. ("The reasonable-probability n. 9 (2005). stan- 160 L.Ed.2d 621 as, dard is not the same and should not be with, requirement confused a that a defendant (D.C.Cir.1980) “just likely” as noted that when was 416, 453 n. 139 627 F.2d cy, not, the defendant as prejudiced (“[T]he litigation, civil error ordinary of standard cannot- meet his burden evidence, the defendant demands preponderance a affected his sub- showing that the error Law Dictio- certainty.”); Black’s only 51% ed.1999). F.3d at (7th However, rights. Rodriguez, 398 Dom- stantial nary 1201 Jones, at 394- (citing 527 U.S. 1299-1301 says that the “reasonable Benitez inguez 2090). However, was Jones than 119 S.Ct. is more lenient probability” standard Dominguez Benitez decided well before the evidence test. preponderance the standard Benitez, specifically enunciated at 2342 Dominguez prove prejudice the defendant must (Scalia, J., judgment); which concurring Thus, in the context. equipoise plain-error must of n. 9. id. satisfy the lesser

necessity sufficient cannot hold that the Su- Obviously, we probability.6 of a reasonable burden implicitly overruled preme Court has Rodriguez Dominguez Benitez. Jones preponderance this de support To facto standard, Express Quijas de Rodriguez reach the evidence Shearson/American Inc., 1917, 104 v. Unit to the 1999 decision Jones es back (1989).7 However, 373, 119 we are 144 L.Ed.2d 526 ed that is language confronted with Jones in which the L.Ed.2d stemming allegedly my reading from ineffective as argues dice Carnes attenuated as to of counsel was so probability” differs sistance standard "reasonable border on the incredulous. prior Circuit case law. He states from There, 1985). (11th the defendant Cir. cases that a defendant we have held in several attorney ineffective claimed that his rendered probability” to meet the "reasonable failed jurors by failing to "rehabilitate" assistance was no evidence on the standard when there they had stated "either that could who alleged prejudiced him. that an record any they penalty in case or that J., return a death Ante, (Carnes, concurring in at 1275-76 fairly, evaluate the evidence know could not However, banc). reh’g I do not denial of en charged ing with that the defendant cites are of believe that of the cases he if his capital crime.” Id. He contended that significance inquiiy particular to the here. In successfully attorney coaxed out more had record evidence contra- each case there was ambiguous jurors’ sentiments answers about prejudice. dicting claims of the defendant's penalty through respect the death judge Henry Wainwright, the failed to In questioning, prosecution would further consequences jury about the of a instruct the cause, to strike them for not have been able split over whether to sentence the defen "expen expend would thus have had to (11th Cir. dant to death. 743 F.2d challenges peremptory to eliminate sive” curiam). However, 1984) (per the record result, apparently, would them. Id. The suggesting jury evidence that the contained jury have been a somewhat less inclined deadlocked, actually belying the was never Id. sentence the defendant to death. die lack of an instruc defendant’s claim that contrast, Rodriguez, the defendant’s prejudiced Id. Adams v. Wain tion him. flights theory prejudice requires no such jury wright presented a similar instruction fancy. We are certain that the district court by” which the court felt "[b]ound claim in erred, preju- and the chance Henry that a because there was no evidence just quite as like- diced the defendant is real— place, Further, not, ever existed in first deadlock ly panel admits. as the itself 1985), and also Cir. evidence on the record in Rodri- there is no presented an ineffective assistance of counsel prejudice. guez contradicting showing the defendant failed to rebut claim wherein situations, Indeed, applies "strong presumption” jury presumed 7. that doctrine one, Supreme express, Court trial court’s where one to have followed the unlike correct, unmistakably point, Straight but where the Id. And in v. case is instructions. underlying decision has been theory preju- rationale Wainwright, defendant’s of eability.” conflict with the “reasonable An direct Id. estimation of which probability” Dominguez holding Supreme standard Beni likely Court would tez, prove that a defendant cannot if stating apply presented with the case also “just likely” prejudice suggest preferred when it is as as not precedent. Easter Felder, prejudicial. ques 1387, that an error was House v. Cir.1990) (en banc) tion, therefore, Dominguez (Easterbrook, J., is not whether con- (“Inconsistent implicitly overruled un curring) Benitez Jones precedent lines of rationale, dermining underlying its but are common American law.... Such ir seemingly hair-splitting rather how resolve these judges leaves of the inferior reconcilable cases.8 federal courts in a difficult position, be- any cause effort to reconcile and apply guid Court offers little cases will be met convincing with a demon- ance, if any, about the role of a Court stration ... fly there is a in the Appeals conflicting prece when faced with ointment.... I believe that despite the dent, although recog Justice Scalia has force of arguments, [the dissent’s] ma- [the nized such situations do arise. Kaiser jority] offers the best estimate of the Corp. Bonjorno, Aluminum & Chem. course majority [Supreme] Court 841, 1570, 494 U.S. 110 S.Ct. take, I join will therefore opin- [its] (1990) (Scalia, J., concurring). L.Ed.2d 842 ion.”). However, Circuit, the Seventh when faced with the conflict Justice Scalia It why acknowl is hard to see we would not edged Bonjomo, helpful Benitez, offered some Dominguez decide that and not Jones, It advice. stated that when we are faced controlling case here. with conflicting Supreme precedent, that, simply Whereas Jones noted even if a exist, attempt should to reconcile the two constitutional violation did the defen- eases in a manner comports showing which with dant’s satisfy would not the “sub- their underlying policies. rights” Mozee v. Am. stantial prong under the facts in Co., case, Commercial Marine Svc. 963 F.2d that 119 S.Ct. (7th Cir.1992) (citing Rodriguez Dominguez Benitez undertook to 1917). Quijas, de clearly U.S. at 109 S.Ct. proof articulate burden of particular, plain-error generally. reasoned that we should cases 124 S.Ct. at Moreover, not, begin asking “which line of cases em 2336. Jones could general bodies the rule of suggests, applied construction and Carnes which line of cases has more appli- Dominguez limited Benitez standard to a situation Benitez, indirectly by subsequent predicted Dominguez undermined See, cases. Scalia Doe, - U.S. -, e.g., J., Tenet v. (Scalia, 125 S.Ct. concurring) ("By my S.Ct. at 2342 1230, 1238, (2005); 161 L.Ed.2d 82 Hohn v. count, adopted this Court has no fewer than 236, 252-53, 524 U.S. 118 S.Ct. assertedly proba- four different standards of (1998); Agostini 141 L.Ed.2d 242 bility relating to the assessment of whether Felton, 203, 237, 521 U.S. 117 S.Ct. the outcome of trial would have been different (1997); Trucking L.Ed.2d 391 Am. Inc. Ass'ns had if error not occurred.... Such ineffable Smith, gradations probability quite seem to me (1990) (plurality opinion). 110 L.Ed.2d 148 (or beyond ability judicial mind mind) grasp.... especially That so appear encountering It would that we are they applied hypothesizing when are to the difficulty applying the various stan- occurred.”). analyzing "prejudice” dards for that Justice that never in fact events See, e.g., prong. dice United no indication whether there is

“where Paladino, Cir. 401 F.3d 486-87 an adverse effect actually did have 2005) J., dissenting from denial (Ripple, Ante proceeding.” of the on the outcome ante, banc); at 1286-88 reh’g en see also (Carnes, J., concurring in deni- at 1276-78 J., reh’g (Tjoflat, dissenting from denial banc). fact that simple reh’g al of en banc) mandatory guide (noting that the en years before decided over five Jones was many avenues a effectively lines foreclosed the “rea- Dominguez Benitez established in pursue requesting now any belies probability” standard sonable sentence, arguing lenient such as more somehow constitutes argument Jones guidelines that the recommended of that standard. application an “just challenging punishment,” is not a Benitez, Jones, Thus, Dominguez Sentencing Commis the wisdom of rule of construc- general “the embodies themselves); see policy sion’s decisions relating plain-error review. More- tion” Serrano-Beauvaix, also United States over, likely majority that a it is more Cir.2005) (1st J., (Lipez, would determine Supreme Court Crosby, concurring); States v. Dominguez applies to this case Benitez (2d Cir.2005). 103, 115 of the Eight of Jones. members instead Moreover, I result the believe in majority opinion Dom- signed Court impermissibly upon trenches panel reaches Benitez, the author of inguez including al- Sentencing policy Federal Act’s of the four Justices who Jones and three court, not the court of lowing “the district contrast, only five signed opinion. his determine, instance, appeals, to the first up made the Jones members of the Court imposed the sentence that should Further, majority. Jones properly factors considered light certain actually held that there was no er- v. Unit- under the Guidelines.” Williams and that place, ror of law the first 193, 205, 112 S.Ct. ed hypothetical mitigated error had been (1992) (citing a 1986 117 L.Ed.2d 341 Jones, court. 527 U.S. at 393- the district Act congressional amendment to the delet- noted 119 S.Ct. 2090. The Jones Court ing provisions appellate that authorized rights prong that the would not substantial imposed a sentence as a courts correct assuming arguendo that be satisfied application an result of incorrect such a constitutional error could still be guidelines). The statute itself reflects 2090. This found. Id. consideration: represents departure a marked from the appeals If the court of determines bar, are certain that the case where we that — an operating district court was under erro- premise neous of law. (1) imposed in viola- the sentence was imposed tion of law or as a result of Essentially, Rodriguez, in cases like sentencing application incorrect prove where the defendant can that Book- court remand the guidelines, the shall constitutionally-man- him a er error denied sentencing proceedings case for further that the outcome of that process dated instructions as the court con- with such process until process cannot be known appropriate!!] siders actually place, takes a defendant sufficient- 3742(f)(1) (2004). ly in the out- undermines our confidence 18 U.S.C. impor- underscored the preju- to meet the Williams Court come his pro- in the remand fectuated the Court’s determi- language of this tance 3742(f)(1) sentencing nation of federal cess, does statute’s stating that “Section intent to allow the district court to deter- a every a time sentenc- not call for remand proper guidelines mine the sentence in a of the might misapply provision ing court rather, (quoting the first instance. Id. at 208 Guidelines; required remand Williams, 205, 112 503 U.S. at S.Ct. 1112 ‘imposed was as a only if the sentence (1992)).9 application’ an incorrect result of Williams, 202- 503 U.S. at Guidelines.” pre-Booker precedent pre Other also 03, (quoting 18 U.S.C. a prejudice sumed cases when sentenc 3742(f)(1)) Even (emphasis original). ing length a error’s effect on de reading of this somewhat restrictive

under extraordinarily sentence was fendant’s statute, every involving consti- case See, e.g., difficult to ascertain. United the district court tutional Booker Plaza-Garcia, 345, v. 914 F.2d States a “as a result surely imposed sentence (1st Cir.1990) C.J.) (va (Breyer, 347-48 application guide- of’ an incorrect cating remanding illegal an sentence statutory language lines. Given guidelines falling also within the correct it, policies behind that error would range plain-error under the doctrine be in the of evi- require a remand absence “may cause it well have been influenced rendering it harmless. dence the record recommen [erroneous] held, Moreover, pre- the Third Circuit dation”); Reyna, United States v. Booker, policy pre (5th Cir.) (en that this consideration banc), F.3d 351-52 cert. speculation cluded about the sentence denied, impose upon (2004) remand

district court would (presuming L.Ed.2d 966 that denial determining guidelines whether a when right caused of defendant’s allocution sentencing error affected defendant’s prejudice, because of the nature of the making such errors rights,” “substantial right difficulty proving and the the vio In presumptively prejudicial. sentence); specific lation affected a Unit (3d (3d 266 F.3d 203 Cir. Knight, Adams, ed States v. 2001), applied Cir.2001) court an incor (same); the district v. Alba United States imposed (1st Cir.1994) a sen sentencing range, rect but Pagan, 33 F.3d (“[T]he fell within the correct tence also of the omission impact [of Knight Id. at 205. The guideline range. discretionary de right to allocution] whether speculate usually enormously Court refused to about cision is difficult impose equiv ascertain.”); Prouty, the district court would United States Cir.2002) (11th purposes (pre on remand for alent sentence F.3d rights” inqui prejudice the defendant plain-error suming “substantial “where Instead, to allo- opportunity it remanded for not afforded the ry. Id. at 208. impose resentencing. Quoting Id. at 210. cute and the court did Williams, guidelines”). under approach that this ef- lowest sentence stated Indeed, appellant’s speculate expressed as to whether this circuit has similar without the en- determining would have been the same that a defendant concerns. In view, our that determination where hancement. appeal a sentence enhancement could in the first instance.” guidelines is for the district court also fell within the the sentence Fuente-Kolbenschlag, 878 range the district United States he had advocated before Cir.1989). court, willing 1379 n. 7 that we were "not said Judge Lipez of the Tjoflat and

As out, effects pointed

First Circuit error are similar

of constitutional Ante, at 1289-91

ly gauge. hard to J., dissenting from denial

(Tjoflat, Serrano-Beauvaix, banc); en

reh’g J., concurring); see (Lipez, at 56-61 Paladino, (Rip 401 F.3d at 486-87

also J., reh’g from denial of en

ple, dissenting Barnett,

banc); (6th Cir.2005); United States Crosby, F.3d at 116-18. respectfully I dissent from

Accordingly, rehearing en banc.

the denial America, STATES of

UNITED

Plaintiff-Appellee, ABREU, a.k.a. Manuel Jose S.

Jose

Abreu, Defendant-Appellant.

No. 04-14376

Non-Argument Calendar. Appeals, Court of

United States

Eleventh Circuit.

April

Case Details

Case Name: United States v. Vladimir Rodriguez

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 19, 2005

Citation: 406 F.3d 1261

Docket Number: 04-12676

Court Abbreviation: 11th Cir.