## F I L E D United States Court of Appeals Tenth Circuit 

### APR 8 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. SERGIO GONZALEZ-HUERTA; a/k/a Sergio Covarrublias; a/k/a Gonzalez-Covarrublias,

Defendant - Appellant. No. 04-2045

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D. Ct. No. CR-03-1843-JP)
Demetra Lambros, United States Department of Justic e, Criminal Division, Washington, D.C. (David C. Iglesias, United States Attorney, Norman Cairns, Assistant United States Attorney, Albuquerque, New Mexico, with her on the briefs), for Plaintiff-Appellee. Jenine M. Jensen Assistant Federal Public Defender, Denver, Colorado (Raymond P. Moore, Federal Public Defender, Denver, Colorado with her on the briefs), appearing for Defendant-Appellant. Norman R. Mueller, Haddon, Morgan & Foreman, P.C., Denver, Colorado; Timothy M. Hurley, University of Denver Sturm Colle ge of Law, Denver, Colorado; Jeremy Karpatkin and Andrew Unthank, Fede ral Appellate Clinic at University of Denver Sturm College of Law, Denver, Colorado; filed an amicus curiae brief for the National Association of Crimin al Defense Lawyers.- 2 -

Before TACHA , Chief Circuit Judge, SEYMOUR , EBEL , KELLY , HENRY , BRISCOE , LUCERO , MURPHY , HARTZ , O’BRIEN , McCONNELL , and TYMKOVICH , Circuit Judges.

TACHA , Chief Circuit Judge.

Defendant-Appellant Sergio Gonzalez-Huerta pleaded guilty to illegal reentry by a deported alien in violation of 8 U.S.C . § 1326(a)–(b)(2). The District Court sentenced Mr. Gonzalez-Huerta to 57 months’ i ncarceration. In determining Mr. Gonzalez-Huerta’s sentence, the cou rt did not rely upon judgefound facts, but it did apply mandatorily the U.S. Sentencing Guidelines (2003) (“Guidelines”). Mr. Gonzalez argues for the first time on appeal that this mandatory application of the Guidelines constitutes reversible error underUnited States v. Booker , 543 U.S. —, 125 S. Ct. 738 (2005). Because Mr. G onzalezHuerta did not raise this argument in the District Court, this appeal is reviewed only for plain error. See Fed. R. Crim. P. 52(b). We take jurisdiction unde r 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), hold thatthe fourth prong of plainerror review is not satisfied, and AFFIRM.
I. BACKGROUND In 1994, Mr. Gonzalez-Huerta was convicted of commi tting burglary in California. After serving a prison term, he was de ported to Mexico in 2000. In May 2003, Mr. Gonzalez-Huerta was arrested in New M exico for possession of a- 3 -

controlled substance. While Mr. Gonzalez-Huerta wa s being held in a New Mexico jail, United States Border Patrol Agents dis covered that he had reentered the country illegally. The Government indicted Mr. Gonzalez-Huerta for unl awfully reentering the United States after deportation following an ag gravated felony. See 8 U.S.C. § 1326(a)–(b)(2). By statute, this offense is punishable by a maximum sentence of 20 years, with no mandatory minimum sentence. 8 U.S.C. § 1326(b)(2). Mr. Gonzalez-Huerta pleaded guilty without entering int o a plea agreement. With the exception of its findings regarding Mr. Go nzalez-Huerta’s prior convictions, the District Court calculated Mr. Gonz alez-Huerta’s sentencing range under the Guidelines without making findings of fac t beyond those admitted by Mr. Gonzalez-Huerta. In so doing, the District Cou rt concluded that Mr. Gonzalez-Huerta had an offense level 21 and a crimi nal history category IV. The court then mandatorily applied the Guidelines, whic h set Mr. Gonzalez-Huerta’s sentence range at 57–71 months’ imprisonment, and i mposed a 57-month sentence. While Mr. Gonzalez-Huerta did not objectto the mandatory application of the Guidelines at sentencing, he did timely appe al his sentence. While this case was pending on appeal, the Supreme Court issued its opinion in Blakely v. Washington , 542 U.S. —, 124 S. Ct. 2531, 2537 (2004), which held that in a state prosecution the Sixth Am endment requires that the1 Mr. Gonzalez-Huerta raises a second issue solely fo r the purpose of

preserving it for a petition for certiorari. He ar gues that Blakelycalls into question the Court’s ruling in Almendarez-Torres v. United States , 523 U.S. 224 (1998), which held that the fact of a prior convict ion may be judicially (continued...) - 4 - maximum permissible sentence in a given case must b e determined solely by reference to “facts reflected in the jury verdict o r admitted by the defendant.” That is to say, the Court held that mandatory sentencing guidelines, which require the sentencing judge to make findings of fact, may not be used to increase a defendant’s sentence in a state prosecution even th ough this enhanced sentence falls within the statutory sentencing range. In Ja nuary of this year, the Court held that Blakely applies to federal sentences as well. Booker , 125 S. Ct. at 749–50. On appeal, Mr. Gonzalez-Huerta argues for the firsttime that Bookeris grounds for remanding his case for resentencing. W e set this case for en banc review sua sponte to resolve this matter of great i mportance. See 28 U.S.C. § 46(c). We requested supplemental briefing from the parties on an expedited basis and received an amicus curiae brief from the Nation al Association of Criminal Defense Lawyers. The question being fully argued, we turn to the single substantial issue in this appeal: On plain-error re view, does the District Court’s mandatory application of the Guidelines constitute reversible error when the District Court relied solely upon Mr. Gonzalez-Huerta’s prior convictions and admitted facts in determining his maximum sentence? 11 (...continued)

recognized. First, we note that this argument was not raised below, limiting our review to plain error. In any event, the holding i n Booker , envisions Almendarez-Torres as good law. Booker , 125 S. Ct. at 756 (“Any fact (other than a prior conviction) which is necessary to supp ort a sentence exceeding the maximum authorized by the facts established by a pl ea of guilty or a jury verdict must be admitted by the defendant or proved to a ju ry beyond a reasonable doubt.”). We believe that any reconsideration of Almendarez-Torres must be conducted by the Supreme Court. See State Oil Co. v. Khan , 522 U.S. 3, 20 (1997) (“[I]t is [the Supreme] Court’s prerogative alone to overrule one of its precedents.”); cf. Shepard v. United States , — U.S. —, 125 S.Ct. 1254, 1263–64 (2005) (Thomas, J., concurring) (noting that the Supreme Court has not reconsidered Almendarez-Torres since announcing the rule applied in Blakely and Booker ). - 5 - II. DISCUSSION A.
In Booker , the Court “reaffirm[ed its] holding in Apprendi : Any fact (other than a prior conviction) which is necessary to supp ort a sentence exceeding the maximum authorized by the facts established by a pl ea of guilty or a jury verdict must be admitted by the defendant or proved to a ju ry beyond a reasonable doubt.” Booker , 125 S. Ct. at 756. As a result, the Court held t hat mandatory application of the Guidelines violates the Sixth Am endment when judge-found facts, other than those of prior convictions, are e mployed to enhance a sentence. The Court constructed a unique remedy to this const itutional infirmity. It severed two provisions of the Sentencing Reform Act of 1984 , codified at 18 U.S.C. § 3551 et seq. Namely, it excised 18 U.S.C. § 3553(b )(1), which made the- 6 -

imposition of a Guidelines sentence mandatory in th e vast majority of cases, and those portions of 18 U.S.C. § 3742(e) that establis hed standards of review on appeal. Booker , 125 S. Ct. at 764. Henceforth, courts are still required to consider the Guidelines in determining sentences, b ut they are not required to impose a sentence within the Guidelines range. Id

. As a result, there are two distinct types of error that a court sentencing prior to Bookercould make. First, a court could err by relying u pon judge-found facts, other than those of prior convictions, to en hance a defendant’s sentence mandatorily. As Bookermakes clear, the Sixth Amendment prohibits this practice. 125 S. Ct. at 756. As a matter of conve nience, we will refer to such an error as a “constitutional Bookererror.” Second, a sentencing court could err by applying the Guidelines in a mandatory fashion, as opposed to a discretionary fashion, even though the resulting sentence was cal culated solely upon facts that were admitted by the defendant, found by the jury, or based upon the fact of a prior conviction. Id. at 769. While this type of sentence does not violate the Sixth Amendment, id. , such a sentence is nonetheless impermissible beca use the Court severed the portion of the Sentencing Reform Act that required the mandatory application of the Guidelines, id . at 764. We will refer to this second type of error as a “non-constitutional Bookererror.”
B.2 In a footnote, Mr. Gonzalez-Huerta briefly asserts that the mandatory use

of the Guidelines violates the Due Process Clause o f the Fifth Amendment, rather than the jury trial guarantee under the Sixth Amend ment. In support of this argument, he cites Hicks v. Oklahoma , 447 U.S. 343 (1980), to demonstrate that the legislature can create statutory liberty intere sts in sentencing procedures. Mr. Gonzalez-Huerta fails to argue, however, that any p rovision in the Sentencing Reform Act creates such a statutory liberty interes t. Because Mr. GonzalezHuerta fails to provide this essential predicate fo r a due process claim, we find this argument unpersuasive. - 7 - This case presents us with a non-constitutional Bookererror. 2 The record establishes that, except for the fact of Mr. Gonzal ez-Huerta’s prior convictions, the District Court relied solely upon facts admitte d by Mr. Gonzalez-Huerta in calculating his maximum sentence. It is also undis puted that Mr. GonzalezHuerta did not raise this non-constitutional Bookererror below. Thus, we review Mr. Gonzalez-Huerta’s claim for plain error. See Fed. R. Crim. P. 52(b); Booker , 125 S. Ct. at 769 (stating in dicta that not every appeal should be remanded for resentencing “because we expect reviewing courts to . . . determin[e] . . . whether the issue was raised below and whether it fails the ‘plain error’ test.”); Johnson v. United States , 520 U.S. 461, 466–67 (1997) (holding that defenda nt’s argument based upon United States v. Gaudin , 515 U.S. 506 (1995), which held the failure to instruct the jury on the issue of materiality is a Sixth Amendment violation, was raised for the first time on appeal and thus su bject to plain-error review). We turn, then, to our application of plain-error re view. “Plain error occurs when there is (1) error, (2) that is plain, which ( 3) affects substantial rights, and3 Because it fails to discuss this crucial issue of w ho bears the burden to

establish that substantial rights were affected, we find United States v. Ameline , 400 F.3d 646, 654 (9th Cir. 2005), vacated and reh’g en banc granted (9th Cir. Mar. 11, 2005), unpersuasive. - 8 - which (4) seriously affects the fairness, integrity , or public reputation of judicial proceedings.” United States v. Burbage , 365 F.3d 1174, 1180 (10th Cir.) (quotation omitted), cert. denied, 125 S. Ct. 510 (2004). Clearly, the first two prongs of the plain-error test are met here. First , the BookerCourt excised 18 U.S.C. § 3553(b)(1), thereby rendering the Guidelin es discretionary. Booker , 125 S. Ct. at 764. The District Court’s mandatory appl ication of the Guidelines, then, was erroneous. As to the second prong, an error is “plain” if it is clear or obvious at the time of the appeal, Johnson , 520 U.S. at 468, and Bookerrenders the error here both clear and obvious on appeal. Thus, the p rimary issue in this case is whether Mr. Gonzalez-Huerta can satisfy both the th ird and fourth prongs of plain-error review.
C. Satisfying the third prong of plain-error review—th at the error affects substantial rights—“usually means that the error mu st have affected the outcome of the district court proceedings.” United States v. Cotton , 535 U.S. 625, 632 (2002) (quotations omitted); see also United States v. Olano , 507 U.S. 725, 734 (1993). The appellant bears the burden to make thi s showing. 3 United States v.4 Because plain error must be assessed based upon the record on appeal, we

find the approach to Bookerplain error adopted in United States v. Crosby , 397 F.3d 103 (2d Cir. 2005), and United States v. Paladino , 401 F.3d 471 (7th Cir. 2005), which provide for limited remands to determine whether the (continued...) - 9 - Vonn , 535 U.S. 55, 62–63 (2002); Olano , 507 U.S. at 734–35. This is also the case when the error occurs during sentencing. See Jones v. United States , 527 U.S. 373, 394–95 (1999). As this Court held in United States v. Brown , 316 F.3d 1151, 1158 (10th Cir. 2003), a “defendant appealing her sentence who failed to timely object to the alleged error bears the burden of proving prejudice under plain error analysis.” Indeed, even when the under lying error is constitutional—as is not the case here—appellant re tains the burden to demonstrate that substantial rights are affected. Cotton , 535 U.S. at 632; United States v. Chavez , 229 F.3d 946, 951 (10th Cir. 2000). To meet this burden, the appellant must show “a reasonable probability that, but for the error claimed, the result of the proceeding would have been different. ” United States v. Dominguez
Benitez , 542 U.S. —, 124 S. Ct. 2333, 2339 (2004) (alteratio ns and quotation omitted). Mr. Gonzalez-Huerta therefore bears the burden to convince this Court, based on the record on appeal, that the error affec ted his substantial rights. See id. at 2340; Vonn , 535 U.S. at 59; United States v. Rodriguez , 398 F.3d 1291, 1305–06 (11th Cir. 2005), petition for cert. filed, (U.S. Feb. 23, 2005) (No. 04-1148). 44 (...continued)

district court would issue a lower sentence, incons istent with plain error doctrine. See Rodriguez , 398 F.3d at 1304–06 (critiquing the Crosbyapproach). - 10 - Mr. Gonzalez-Huerta and Amicus National Association of Criminal Defense Lawyers counter that Mr. Gonzalez-Huerta do es not bear the burden to show that his substantial rights were affected. Th ey contend that this conclusion follows because the District Court’s mandatory appl ication of the Guidelines constitutes structural error. We disagree.
InOlano , the Court held that to satisfy the third prong of plain error, “in

most cases . . . the error must have been prejudicial: It musthave affected the outcome of the district court proceedings.” 507 U. S. at 734. The Court, however, carved out an exception to this general rule. It s tated that “there may be a special category of forfeited errors [i.e., structural erro rs] that can be corrected regardless of their effect on the outcome.” Id . at 735. A “structural” error, as explained in Arizona v. Fulminante , 499 U.S. 279, 310 (1991), is a “defect affecting the framework within which the trial proceeds, rather t han simply an error in the trial process itself.” Structural errors deprive defenda nts of “basic protections” without which “a criminal trial cannot reliably ser ve its function as a vehicle for determination of guilt or innocence, and no crimina l punishment may be regarded as fundamentally fair.” Rose v. Clark, 478 U.S. 570, 577–78 (1986) (internal citation omitted). The Court has found structural errors only in a very limited5 See Sullivan v. Louisiana , 508 U.S. 275 (1993) (erroneous

reasonable-doubt instruction to jury); Vasquez v. Hillery , 474 U.S. 254 (1986) (unlawful exclusion of grand jurors of defendant’s race); Waller v. Georgia , 467 U.S. 39 (1984) (right to a public trial); McKaskle v. Wiggins , 465 U.S. 168 (1984) (right to self-representation at trial); Gideon v. Wainwright , 372 U.S. 335 (1963) (total deprivation of the right to counsel); Tumey v. Ohio , 273 U.S. 510 (1927) (lack of an impartial trial judge). - 11 - class of cases. 5 We have also noted that “the universe of [structu ral] errors is extremely small.” United States v. Garcia , 78 F.3d 1457, 1464 n.10 (10th Cir. 1996). Indeed, the Supreme Court has held that “[i ]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other constitutional errors that may have occurred are [not structural errors.]” Neder v. United States , 527 U.S. 1, 8 (1999). Given these considerations, we conclude that non-co nstitutional Booker error does not constitute structural error. First, as Nederimplies, generally speaking structural errors must, at a minimum, be c onstitutional errors. See id. Second, because Mr. Gonzalez-Huerta had counsel and an impartial judge there is a strong presumption against finding structural err or. Id . Third, a defining feature of structural error is that the resulting u nfairness or prejudice is “necessarily unquantifiable and indeterminate,” Sullivan v. Louisiana , 508 U.S. 275, 282 (1993), such that “any inquiry into its ef fect on the outcome of the case would be purely speculative,” Satterwhite v. Texas , 486 U.S. 249, 256 (1988). That is to say, if, as a categorical matter, a cour t is capable of finding that the6 This is not to say this is the only way the third p rong can be satisfied. See

United States v. Antonakopoulos , 399 F.3d 68, 81 (1st Cir. 2005) ; United States v. MacKinnon, 401 F.3d 8, 11 (1st Cir. 2005). - 12 - error caused prejudice upon reviewing the record, t hen that class of errors is not structural. Such is the case with non-constitution al Bookererror. If, for example, the district court indicates that but for the mandatory nature of the Guidelines it would have issued a lower sentence, the reviewing c ourt could determine from the record that the error was prejudicial. 6 See United States v. Shelton , 400 F.3d 1325, 1328, 1332–33 (11th Cir. 2005) (holding that the defendant had satisfied the third prong where the district court stated that the Guidelines sentence was “very, very severe” and indicated by other statemen ts that the mandatory Guidelines sentence was “unfortunate.”). Hence, we hold that non-constitutional Bookererror is not structural error. Accord United States v. Antonakopoulos , 399 F.3d 68, 80 n.11 (1st Cir. 2005). Alternatively, Mr. Gonzalez-Huerta argues that he d oes not bear the burden under the third prong of plain error because the Olano Court noted that some unraised errors should be “presumed prejudicial if the defendant cannot make a specific showing of prejudice.” 507 U.S. at 734. He urges that when a case is pending on appeal and an intervening decision overt urns law that was well-settled while the case was in the district court, the appel lee should bear the burden to establish that substantial rights were not affected

. See United States v. Barnett ,7 Worthy of note, although the Second and District of Columbia Circuits have an intervening decision doctrine as precedent, neither court applied that precedent to Bookerplain error cases. The Second Circuit has opted f or the limited remand approach. Crosby , 397 F.3d at 120. The District of Columbia Circuit, on a motion for panel rehearing, held thatthe defendant could not satisfy the third prong and that an “intervening change in law [is] no excuse for failure to object.” United States v. Smith , — F.3d —, 2005 WL 627077 at *1 (D.C. Cir. 2005) (citing Johnson , 520 U.S. at 464). - 13 - 398 F.3d 516, 526–29 (6th Cir. 2005); United States v. Viola , 35 F.3d 37, 42 (2d Cir. 1994), abrogated on other grounds by Salinas v. United Sta tes , 522 U.S. 52, 65–66 (1997); United States v. Washington , 12 F.3d 1128, 1139 (D.C. Cir. 1994). 7 Following this same line of reasoning, the Sixth Ci rcuit in Barnettheld that a presumption of prejudice is appropriate for non-con stitutional Bookererror because “the inherent nature of the error [makes] i t exceptionally difficult for the defendant to demonstrate that the outcome of the lo wer court would have been different had the error not occurred.” 398 F.3d at526–27. Mr. Gonzalez-Huerta argues that this Court should adopt the approach ta ken in Barnett

. We do not find Barnettpersuasive for several reasons. First, in the twe lve years since its decision in Olano , the Court has never again mentioned this category of presumed prejudice—let alone applied itto an analogous factual scenario. In Johnson , for example, the Court faced the question whethera defendant bore the burden to satisfy the third pron g of plain error when he raised, for the first time on appeal, an argument based on the intervening Supreme Court- 14 -

decision of United States v. Gaudin , 515 U.S. 506 (1995), which overturned law that was well-settled at the time of the district c ourt proceedings. 520 U.S. at 469–70. The Court, however, failed to make any men tion of presumed prejudice in reaching its decision. We similarly question th e applicability of presumed prejudice to Mr. Gonzalez-Huerta’s case. Second, establishing that non-constitutional Bookererror affects substantial rights is not an impossible task. The Eleventh Cir cuit’s recent Shelton opinion illustrates one means of satisfying the third prong . If the sentencing judge expressed unhappiness on the record with the mandat ory nature of the Guidelines as it relates to the sentence in that particular ca se, then the defendant can satisfy the third prong of plain error. Shelton , 400 F.3d 1325, 1328. Moreover, “[e]ven in cases where the judge was silent, there may be c ases in which the appellate panel is convinced by the defendant based on the fa cts of the case that the sentence would, with reasonable probability, have b een different such that” the third prong may be satisfied. Antonakopoulos , 399 F.3d at 81 (outlining scenarios where the third prong of plain error would likely b e met); see also United States v. MacKinnon, 401 F.3d 8, 11 (1st Cir. 2005) (judge’s comments pl us numerous grounds for departure that could not be considered under mandatory guidelines required remand). We are confident, then, that lea ving the burden with the appellant does not render satisfaction of the third prong impossible.- 15 -

Third, an appellant, even prior to Booker , had every reason to present mitigating sentencing factors to the district court

. See Barnett , 398 F.3d at 537–38 (Boggs, C.J., dissenting). The Guidelines p resent a sentencing court with a range in which to sentence. Thus, both the prose cutor and defense counsel, even under the mandatory Guidelines scheme, had the opportunity to present mitigating circumstances to the district court thatmight place a criminal defendant at the high or low end of the range. As such, “[a]ny arguments that might be raised post- Bookerabout culpability, future dangerousness, offsettin g good works, family obligations, or any other mitigating circumstance were also fair game pre- Booker .” Id . at 538. As Chief Judge Boggs aptly concluded, “t he Guidelines never placed any limits on the ability o f the district court to consider these factors, so there is no reason to remand so t he district court may consider additional circumstances.” Id . Hence, any failure to include such evidence in t he record prior to Bookerfairly rests with the appellant. Finally, placing the burden on the appellant is one of the essential characteristics distinguishing plain error from har mless error. See Vonn , 535 U.S. at 62–63; Olano , 507 U.S. at 734–35. Shifting the burden to the appellee would seriously blur this distinction and would be incons istent with our precedent. Cf. United States v. Labastida-Segura , 396 F.3d 1140, 1143 (10th Cir. 2005) (on harmless-error review, remanding a non-constitution al Bookererror case in the- 16 -

face of a silent record). Therefore, we do not ado pt the Barnettburden-shifting approach and hold that Mr. Gonzalez-Huerta bears th e burden to establish by a reasonable probability based upon the record on app eal that his substantial rights were affected by the District Court’s mandatory app lication of the Guidelines. Accord United States v. Mares , — F.3d —, 2005 WL 503715 at *8–*9 (5th Cir. 2005); Antonakopoulos , 399 F.3d at 79–80; Rodriguez , 398 F.3d at 1299–1301.
D. We need not determine whether Mr. Gonzalez-Huerta c an satisfy this burden because even if he were to meet the third pr ong, he must also satisfy the fourth prong to obtain relief. See Cotton , 535 U.S. at 632–33 (“[W]e need not resolve . . . [the third prong of plain-error revie w], because even assuming respondents’ substantial rights were affected, the error did not seriously affect the fairness, integrity, or public reputation of judici al proceedings.”); Johnson , 520 U.S. at 469–70 (same); United States v. Gonzalez Edeza , 359 F.3d 1246, 1251 (10th Cir. 2004) (applying Cotton and Johnson ). Mr. Gonzalez-Huerta does not satisfy this prong. As a preliminary matter, we note that in the wake o f Bookerseveral courts of appeals have collapsed the third and fourth pron g analyses. That is to say, if these courts find the third prong satisfied, they c onclude that the fourth prong is met as a matter of course. See, e.g., United States v. Crosby , 397 F.3d 103, 118- 17 -

(2d Cir. 2005) (“[A] district judge’s decision thatthe original sentence would have differed in a nontrivial manner from that impo sed will demonstrate that the error in imposing the original sentence was harmful and satisfies plain error analysis.”). We cannot subscribe to this approach. The Court in Olano clearly held that “a plain error affecting substantial righ ts does not, without more, satisfy the . . . standard, for otherwise the discretion af forded by Rule 52(b) would be illusory.” 507 U.S. at 737. Therefore, we are bou nd to treat the third and fourth prongs as independent inquiries. Under the fourth prong of plain-error review, a cou rt may exercise its discretion to notice a forfeited error only if it s eriously affects the fairness, integrity, or public reputation of judicial proceed ings. Johnson , 520 U.S. at 467. As such, we will not notice a non-constitutional er ror, such as the one in the case before us, unless it is both “particularly egregiou s” and our failure to notice the error would result in a “miscarriage of justice.” United States v. Gilkey , 118 F.3d 702, 704 (10th Cir. 1997); see also Olano , 507 U.S. at 736 (holding that the “discretion conferred by Rule 52(b) should be emplo yed [only] in those circumstances in which a miscarriage of justice wou ld otherwise result.”) (internal quotations omitted). This is a demanding standard, see Dominguez
Benitez , 124 S. Ct. at 2335, and of course, depends on the f acts of the particular

case.- 18 -

Mr. Gonzalez-Huerta bears the burden of meeting thi s demanding standard.
Vonn , 535 U.S. at 63 (“[A] defendant has the further burden to persuade the court that the error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’”). While some find that Olano provides a foundation for the “presumed prejudice” approach to the third pron g of plain-error review as adopted by the Sixth Circuit in Barnett , the Supreme Court has never shifted the burden to the appellee to establish that the error did not seriously affect the fairness, integrity, or public reputation of judici al proceedings. To the contrary, the Supreme Court has consistently applied the fourth prong of plain-error review rigorously—even when the error is the result of an intervening Supreme Court decision that alters well-settled law. For example , the Johnson Court considered the application of the fourth prong of plain-error review in the wake of its Gaudin decision, which overturned established law regardin g the need to present materiality to the jury. 520 U.S. at 469–70. Despite the major change in criminal law made by Gaudin , the Court declined to carve out an exception to t he burden framework as to the fourth prong of plain error. Id. Rather, it concluded that the record on appeal simply provided “no basis” for the notion that the error seriously affected the fairness, integrity, or public reputation of judici al proceedings, and that a miscarriage of justice woul d not result from its decision to affirm. Id

.8 The Fourth Circuit in Hughes , 396 F.3d at 380–81 , took a different

approach to the fourth prong. It previously held t he fourth prong satisfied because “Bookerwrought a major change in how federal sentencing i s to be conducted.” Id. at 380. Because we do not find that this change in wellestablished law mandates a lesser fourth-prong burd en, we do not find this reasoning persuasive. Moreover, we note that the F ourth Circuit panel granted (continued...) - 19 - T his Court has similarly applied the fourth prong of plain-error review in cases where an intervening Supreme Court decision alters well-sett led law . We considered this issue immediately after the Supreme Court’s decision in Apprendi v. New Jersey , 530 U.S. 466 (2000), which, like Booker , drastically changed federal sentencing procedure. Nonetheless, we appl ied the traditional rigorous approach to the fourth prong of plain-error review to appeals pending when the Court issued that decision. See United States v. Keeling , 235 F.3d 533, 538–40 (10th Cir. 2000). We use the same approach today. Mr. Gonzalez-Huerta fails to meet his burden to sat isfy the fourth prong of plain-error review. In his brief on appeal, he off ers nothing more than the conclusory statement that: “[T]o leave standing this sentence imposed under th e mandatory guideline regime, we have no doubt, is to place in jeopardy the fairness, integrity, or public reputation of judici al proceedings.” Aplt. Supp. Brief at 12 (quoting United States v. Hughes , 396 F.3d 374, 381 (4th Cir. 2005) ). Providing this quotation is a far cry from establis hing that a miscarriage of justice would occur if we do not remand. 8 To the contrary, based upon our8 (...continued)

rehearing and issued a new opinion in Hughes

. See United States v. Hughes , — F.3d —, 2005 WL 628224 (4th Cir. 2005). The Fourth Circuit now relies upon a different fourth-prong rationale. The court now ho lds the fourth prong met because “Hughes was sentenced to a term of imprison ment nearly four times as long as the maximum sentence authorized by the jury verdict.” Id. at *13. We do not face similar facts here. - 20 - review of the record, we are convinced that the District Court’s mandatory application of the Guidelines was not “particularly egregious” or a “miscarriage of justice.” Several considerations support our conclusion. The error of which Mr. Gonzalez-Huerta complains is not the substantive er ror first recognized in Blakely and which Booker sought to eliminate—namely, that the Sixth Amendmen t is violated when a judge, rather than a jury, finds fa cts that mandatorily increase a defendant’s sentence. Rather, the error in Mr. Gon zalez-Huerta’s case—that the District Court applied the Guidelines mandatorily—i s only error insofar as it runs afoul of the Court’s remedy for the unconstitutional implications of the Guidelines. This disconnect between the constituti onal violation and the remedy makes Booker unique. While there is no doubt that the remedy cu res the constitutional violations going forward, usually th e cure for a constitutional violation directly relates to the constitutional vi olation. The fortuity of the Court’s choice to excise 18 U.S.C. § 3553(b)(1), in stead of a remedy more directly related to the underlying constitutional p roblem, is key to our- 21 -

determination that the District Court’s erroneous—a lthough not constitutionally erroneous—mandatory application of the Guidelines i s not particularly egregious or a miscarriage of justice. Moreover, the purpose of the Guidelines was to prom ote uniformity in sentencing so as to prevent vastly divergent senten ces for offenders with similar criminal histories and offenses. See Koon v. United States , 518 U.S. 81, 92 (1996). The federal courts have been striving towa rds this worthy goal since 1987. Indeed, this goal remains the same post- Booker

. Booker , 125 S. Ct. at 761 (“This point is critically important. Congress’ bas ic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased uniformity.”). In doing so, the courts and the Uni ted States Sentencing Commission have established national norms for sent encing that are embodied in the Guidelines. See Mistretta v. United States , 488 U.S. 361, 369-70 (1989). Even though district courts now have discretion in sentencing, they must consider the Guidelines (i.e., the national norm) when sente ncing. Booker , 125 S. Ct. at 764 (“The Act nonetheless requires judges to consid er the Guidelines ‘sentencing range established for ... the applicable category o f offense committed by the applicable category of defendant.’”). Here, Mr. Go nzalez-Huerta received a sentence that is within this national norm and the record is devoid of any9 Indeed, the District Court specifically asked Mr. G onzalez-Huerta, “Are all

of the statements of fact in your [presentence] rep ort correct?” Mr. GonzalezHuerta replied, “Yes.” The court then inquired, “[ I]s there any need for an evidentiary hearing on disputed facts?” Defense co unsel stated there was not. The court again asked, “Are there any written mater ials other than the presentence report that I should take into account?” Mr. Gonza lez-Huerta’s lawyer replied, “Nothing on behalf of the defendant, Judge.” The c ourt then stated its intention to sentence Mr. Gonzalez-Huerta to 57 to 71 months’ incarceration and asked, “Are you in agreement with that?” Defense counsel replied, “Yes, your honor.” Yet again, the court asked defense counsel, “would you like to make a statement on behalf of Mr. Gonzalez at this time?” Defense c ounsel thanked the Judge for sentencing at the low end of the range and stated t hat he had informed Mr. Gonzalez-Huerta that he was eligible for good-time credits

. - 22 - mitigating evidence. 9 Given that his sentence is consistent with this n ational norm and there is no record evidence to support a l ower sentence, we cannot conclude that Mr. Gonzalez-Huerta’s sentence is particularly egregious or a miscarriage of justice. Further, for the last eighteen years, every federal court has given the Guidelines tacit, and in most cases explicit, appro val, applying them to tens of thousands of federal sentences. In this regard, we agree with the First Circuit that “one cannot possibly say that all sentences imposed before Booker threatened the fairness, integrity, or public reputation of judici al proceedings, or undermined our confidence in the outcome of the sentence, simply b ecause the Guidelines were mandatory.” Antonakopoulos , 399 F.3d at80; cf. United States v. Wilson , 244 F.3d 1208, 1220 n.7 (10th Cir. 2001) (applying the fourth prong of the plain-error test and declining to correct an error, in part, be cause the procedures involved10 At times we have referred to the imposition of a se ntence beyond the

statutory maximum as an “illegal sentence.” The us e of this terminology, however, has led to some confusion. Thus, we recen tly clarified that the term “illegal sentence” is reserved for those instances where the term of incarceration exceeds the statutory maximum, while a wrongly impo sed sentence that is under the statutory maximum is properly termed an “errone ous sentence.” United States v. Brown , 316 F.3d 1151, 1160 n.4 (10th Cir. 2003). Becaus e Mr. GonzalezHuerta’s sentence is under the statutory maximum, h e did not receive an “illegal sentence” that would trigger per se, reversible, pl ain error. Cf. United States v. Smith , 156 F.3d 1046, 1057 (10th Cir. 1998).

11 Although “[w]e previously have held . . . that appl ication of the wrong Guidelines range constitutes plain error,” United States v. Occhipinti , 998 F.2d 791, 801–02 (10th Cir. 1993), we later clarified th at application of the wrong guideline only “constitutes a fundamental error aff ecting substantial rights within the meaning of Rule 52(b), thereby satisfying the t hird prong of the plain error inquiry,” leaving the appellant with the burden to establish the remaining prongs of plain error review, United States v. Whitney , 229 F.3d 1296, 1308–09 (10th Cir. 2000). Thus, even if we held that the Distric t Court applied the wrong guideline range in this case, such a finding would not necessarily satisfy the fourth prong of plain-error review. - 23 - “were universally considered fair at the time of tr ial”). Indeed, courts have held that sentencing error meet s the fourth prong of plain-error review only in those rare cases in whic h core notions of justice are offended. For example, the courts generally have h eld the fourth prong met when the sentence exceeds the statutory maximum, 10 United States v. Maxwell , 285 F.3d 336, 342 (4th Cir. 2002), when the sentencing court employs an improper burden of proof, United States v. Jordan , 256 F.3d 922, 933 (9th Cir. 2001), and when the sentencing court denies the defendant his right to allocution, United States v. Adams , 252 F.3d 276, 288–89 (3rd Cir. 2001). 11 Here, we are not faced- 24 -

with a similar scenario where basic notions of just ice are jeopardized. Hence, we cannot hold, based upon the culmination of these fa ctors, that the mandatory application of the Guidelines in this case—while er ror—is a particularly egregious one that would result in a miscarriage of justice or otherwise call the judiciary into disrepute unless we remanded.
III. CONCLUSION Because Mr. Gonzalez-Huerta’s challenge to this non-constitutional Booker error was raised for the first time on appeal and h e cannot satisfy the fourth prong of plain-error review, we AFFIRM.United States v. Gonzalez-Huerta , No. 04-2045

TACHA , Chief Circuit Judge, concurring. I fully concur in the majority opinion. I write se parately because I would also find that Mr. Gonzalez-Huerta cannot satisfy t he third prong of plain-error review. I am authorized to say that Judge Kelly, J udge Murphy, Judge O’Brien, Judge McConnell, and Judge Tymkovich join this conc urring opinion. Having concluded thatthe burden squarely rests on Mr. Gonzalez-Huerta, I would turn next to whether he satisfies the third-p rong. Unlike in United States v. Antonakopoulos , 399 F.3d 68 (1st Cir. 2005), or United States v. Shelton , 400 F.3d 1325, 1328, 1332–33 (11th Cir. 2005) , Mr. Gonzalez-Huerta does not point to anything in the record that shows with a reasona ble probability that his substantial rights were affected by the mandatory application of the Guidelines. The most he can offer is speculation that with its newfound discretion the District Court might impose a lower sentence. In my view, t his is an insufficient showing. In the District Court, Mr. Gonzalez-Huerta offered no mitigating evidence that suggests a lower sentence would be justified, nor did he contest facts in the presentence report. Indeed, the court specifically asked Mr. Gonzalez-Huerta, “Are all of the statements of fact in your [present ence] report correct?” Mr. Gonzalez-Huerta replied, “Yes.” The court then inq uired, “[I]s there any need for an evidentiary hearing on disputed facts?” Defense counsel stated there was not. The court again asked, “Are there any written mater ials other than the presentence-2-

report that I should take into account?” Mr. Gonza lez-Huerta’s lawyer replied, “Nothing on behalf of the defendant, Judge.” The c ourt then stated its intention to sentence Mr. Gonzalez-Huerta to 57 to 71 months’ incarceration and asked, “Are you in agreement with that?” Defense counsel replied, “Yes, your honor.” Yet again, the court asked defense counsel, “would you like to make a statement on behalf of Mr. Gonzalez at this time?” Defense c ounsel thanked the Judge for sentencing at the low end of the range and stated t hat he had informed Mr. Gonzalez-Huerta that he was eligible for good-time credits. This record, at best, leaves me only with speculation that the District C ourt would have issued a lower sentence if it had sentenced under a non-mandatory Guideline regime. The Court in Jones v. United States , 527 U.S. 373 (1999) , which was a capital case, instructs that such speculation abouta possible lighter sentence cannot satisfy the third prong of plain error. The Court held that when “the effect of an alleged error is so uncertain, a defendant ca nnot meet his burden of showing that the error actually affected his substantial ri ghts.” Jones , 527 U.S. at 394–95; see also United States v. Rodriguez , 398 F.3d 1291, 1299–1301 (11th Cir. 2005) (applying Jones to a constitutional Bookererror case), petition for cert. filed, (U.S. Feb. 23, 2005) (No. 04-1148). The Court face d a similar issue in Romano v. Oklahoma , 512 U.S. 1 (1994), another capital case. In Romano , the Court held that even if the sentencing jury considered an impe rmissible factor in-3-

recommending a death sentence, the defendant could not demonstrate that substantial rights were affected when that “conclus ion necessarily rests upon one’s intuition.” Id . at 14. This Court faces a similar situation here. Mr. Gon zalez-Huerta urges that if he were resentenced, the District Court would entera lower sentence. But this conclusion, as in Romano , necessarily rests upon Mr. Gonzalez-Huerta’s intu ition that the sentencing court would employ its newfound sentencing discretion to enter a lower sentence. One could just as easily i ntuit that the court here would enter the same sentence. Indeed, in many cases, al though not in this case, a reviewing court could easily intuit that the distri ct court would impose a greater sentence on remand. Cf. United States v. Forbes , slip op. No. 03-1597, 2005 WL 481605, *2 (2nd Cir. Mar. 1, 2005) (unpublished) (“ We note that should Forbes determine upon remand that for whatever reason, inc luding the possibility that he might expose himself to a higher sentence, he does not in fact seek resentencing, he may so inform the court.”). Therefore, I would hold that Mr. Gonzalez-Huerta has not met his burden. The dissent relies heavily on post- Bookersentencing statistics from the United States Sentencing Commission. See Linda D. Maxfield, U.S. Sentencing Comm’n, Data Extract on March 3: Numbers on Post-Booker Sen tencings at 2 (Mar. 14, 2005) (available at http://www.ussc.gov/B lakely/booker_030305.pdf)-4-

(last visited Mar. 30, 2005) . Relying on these statistics, the dissent states that 13.7 percent of all sentences post- Bookerare below the Guidelines range when the Government does not recommend a departure. The dissent argues that this statistical variance suggests that both the third and fourth prongs of plain-error review are met in most non-constitutional Bookerplain error cases. This lone statistic, however, does not display the whole pict ure. The rate of non-government-sponsored, below-Guideli nes-range sentences is only slightly greater post- Bookerthan before Blakelyand Bookerwere handed down. See Linda D. Maxfield, U.S. Sentencing Comm’n, Data Extract on March 15: Numbers on Post-Booker Sentencings at 10 (Mar. 22, 2005) (available at http://www.ussc.gov/Blakely/booker_032205.pdf) (las t visited Mar. 30, 2005) . In Fiscal Year 2002 (i.e., before Blakely ), 11.9 percent of defendants were sentenced below the Guidelines range without govern ment sponsorship. Id

. Post- Booker , 13.7 percent of defendants are sentenced below th e Guidelines range without government sponsorship. Id. This is a change of only 1.8 percentage points. This 1.8 percentage point incre ase in the likelihood of a lower sentence—without any case-specific indicia that a l ower sentence would be entered—does not show “a reasonable probability that, but for the er ror claimed, the result of the proceeding [in this case] would h ave been different.” United States v. Dominguez Benitez , 542 U.S. —, 124 S. Ct. 2333, 2339 (2004).1 Even focusing just on post- Bookerstatistical data, there is an important

distinction that the dissent fails to mention. Of the 13.7 percent of sentences entered below the Guidelines range, 4.7 percent of those lower sentences were based upon Guidelines approved “downward departures .” Maxfield, U.S. Sentencing Comm’n, Data Extract on March 3: Numbers on Post-Booker Sentencings at 2. Thus, 8.3 percent of “[a]ll cases explicitly cit[ e] either US v Booker or 18 USC § 3553 as a reason for a sentence below the guideline range . . . . [or] do not provide a reason for the below-guid eline sentence.” Id. at 2 n.3. Hence, post- Bookeronly 8.3 percent of sentences receive a non-Guidel ines approved lower sentence. Here, Mr. Gonzalez-Huertadoes not argue that any additional Guidelines departures apply. As such, aproper reading of the post-Booker-only statistics places Mr. Gonzalez-Hue rta in a category where only 8.3 percent of defendants have received lower sente nces. -5- Even more telling, in Fiscal Year 2002, only 0.8 pe rcent of sentences were above the Guidelines range. Maxfield, U.S. Sentencing Comm’n, Data Extract on March 15: Numbers on Post-Booker Sentencings at 10. Post- Booker , 1.9 percent of sentences are above the Guidelines range

. Id

. This is a change of 1.1 percentage points. If this Court were to rely upon generalized statist ics as the dissent suggests, then it would face a situation in which, post- Booker , a defendant has a 1.8 percentage point increased chan ce of a below-Guidelinesrange sentence and a 1.1 percentage point increased chance of an aboveGuidelines-range sentence. Without any case-specif ic indicia that a lower (or greater) sentence would be given, whether these statistics show a reasonable probability that a lower sentence would be entered is a “conclusion [that] necessarily rests upon one’s intuition.” Romano , 512 U.S. at 14. 1
Because I would also hold that Mr. Gonzalez-Huerta bears the burden to-6-

meet the third prong of plain-error review and thathe does not bear his burden, I would affirm based upon the third prong of plain-er ror review as well as the fourth.1 United States v. Olano , 507 U.S. 725 (1993).

United States v. Gonzalez-Huerta , No. 04-2045 EBEL, Circuit Judge, concurring.

I agree with the majority’s decision to affirm Gonz alez-Huerta’s sentence under the fourth prong of the Olano 1 plain-error test and therefore I join Sections I, IIA, IIB, IID, and III of the majority opinion. However, I disagree with the majority’s analysis and conclusion reached under th e third prong of the Olano plain-error analysis (Maj. op. sections IIC), and a ccordingly I do not join those sections of the majority opinion. Regarding the pr ejudice-prong analysis, I believe that Judge Briscoe got it right, and accord ingly, I join Section IV of her concurrence. Regarding the fourth prong of the Ola no plain-error analysis, as noted above, I join Section IIE of the majority opi nion. I join Part II of Judge Hartz’s concurrence. Finally, I add this concurrin g opinion to offer some additional analysis applicable to the fourth-prong analysis. When an appellant meets the first three prongs of t he plain-error analysis, as Gonzalez-Huerta has in this case, “an appellate court may then exercise its discretion to notice a forfeited error, but only if . . . the error seriously affect[s] the fairness, integrity or public reputation of jud icial proceedings.” United States
v. Cotton , 535 U.S. 625, 631 (2002) (quotation omitted). I agree with the majority opinion that the plain error in this case does not seriously affect the2 I agree with both the majority opinion and with Jud ge Hartz that we

cannot conflate the third and fourth prongs of the plain-error analysis. Rather, we must address these two inquiries separately. -2- fairness, integrity or public reputation of judicia l proceedings, but I write separately to discuss the specific factors that lea d me to that conclusion. Judge Hartz has addressed the fourth prong in some detail in his concurrence, and I agree with his reasoning. 2 The majority opinion, and Judge Hartz’s concurrence, appropriately note that the se ntencing guidelines’ purpose was to make sentencing more uniform and, thus, more fair. They observe, therefore, that it would not generally advance the fairness, integrity or public reputation of judicial proceedings, in a systemic s ense, to remand individual cases for resentencing after United States v. Booker , 125 S. Ct. 738 (2005), where the sentence already imposed falls within the range est ablished by those guidelines. Rather, a sentence within the applicable guideline range generally represents a sentence within the national norms adopted for such similarly convicted defendants. Building on this reasoning, I would suggest at leas t three non-exclusive factors that this court should consider in determin ing whether to notice and correct Bookererror that has affected an appellant’s substantial rights. First, was the plain error constitutional error? T his court applies a less restrictive plain-error analysis whenever an appell ant urges a constitutional error.-3-

See United States v. Brown , 316 F.3d 1151, 1155 (10th Cir. 2003). If there h ad been constitutional error here that affected Gonzal ez-Huerta’s sentence, it would be much more likely to cast judicial proceedings in disrespect and would be much harder for us to uphold. See, e.g. , United States v. McDaniel , 398 F.3d 540, 549 (6th Cir. 2005) (holding Sixth Amendment Bookererror would diminish fairness of criminal sentencing scheme). But in this case t he district court’s error in treating the sentencing guidelines as mandatory rat her than only advisory was not constitutional error. The second factor I would consider is whether an ap pellant’s sentence falls within the guideline range, now viewed as advisory, for the defendant’s particular conduct and criminal history. Unlike a guilt/innoc ence determination, which is generally an “either-or” proposition, sentencing is instead “the choice of a point within a range established by Congress.” United St ates v. Paladino , Nos. 03-2296, 03-2383, 03-2386, 04-1951, 04-2339, 0 4-2378, 2005 WL 435430, at *8 (7th Cir. Feb. 25, 2005). In this case, the district court imposed a sentence that fell within the applicable guideline range. T here is, then, a comfort level here because Gonzalez-Huerta received a sentence si milar to the sentence most similarly historied defendants in the United States would have received for the3 Admittedly, this will be true of most sentences that fall within the

previously mandatory guideline range. Nevertheless , it is important to consider this factor, even though it will support denying re lief in most plain-error cases. And this factor alone is not dispositive. The fourth prong of the plain-error analysis is, at its core, a discretionary prong, ye t one that places a heavy burden on the party seeking to invoke it. Whether a sente nce is within a societally approved range is a strong factor, but only one fac tor among several that we should consider in deciding whether to exercise ourdiscretion to grant plain-error relief.

4 While this factor overlaps, to some degree, with th e third prong’s analysis, it is also relevant here under the fourth prong. Nevertheless, whether a defendant can show that he would likely receive a s ubstantially lighter discretionary sentence on remand seems to me to be a necessary component of any fairness evaluation under the fourth prong. And, u nlike the third prong’s analysis, here we need not make the binary determin ation of whether or not the appellant was prejudiced by the plain error, we nee d not worry about blurring the distinction between plain and harmless error, and w e need not engage in backward-looking speculation of an unknowable judic ial mindset. Instead, at the fourth prong, we can apply our own objective analys is to determine whether a different sentence under a discretionary scheme is likely. Further, this factor does not drive the fourth-prong analysis like its does t he third prong. Again, this is but one of several factors that we will consider before determining whether or not to exercise our discretion to notice and correct plain error. If prejudice is uncertain, we can simply take that uncertainty into account in deciding how much weight to give this factor under the fourth-prong analysis. In this case, I did not find the absence of such ev idence sufficient to override the defendant’s showing of prejudice underthe third prong because he made a sufficient showing of prejudice in light of his sentence being at the very bottom of a sentencing range believed by the judge to be a mandatory range, (continued...) -4- crime for which he was convicted. 3 See Brown , 316 F.3d at 1161. Third, I would consider whether there was evidence in the record or proffered that would suggest that, if we remanded t his case for resentencing, the district court would likely impose a significantly different sentence. 4 See id. at4 (...continued)

particularly when he had little incentive either to object to the sentence or to put on mitigating evidence given the prevailing case la w. In the fourth-prong analysis, I would look to see whether, notwithstand ing that disincentive, there is anything in the record or proffered that would sugg est a substantially different sentence if we were to remand. -5- 1163. It seems to me that one aspect of whether th e defendant received an unfair sentence is whether the sentence would likely chang e to a significant degree if he were returned to the district court for discretiona ry resentencing. On this record, however, there is no such evidence, nor is any such evidence proffered. In this case, then, these three fourth-prong Olano factors all cut against Gonzalez-Huerta. There was no constitutional error ; Gonzalez-Huerta’s sentence fell within the applicable guideline range, indicat ing he received the same sentence that other similarly convicted defendants would have received, so there was nothing unfair about his sentence from a societ al perspective; and there is no evidence in the record or proffered to suggest thatthe district court, on remand, able to exercise greater discretion, would impose asignificantly different sentence. Thus, there is no showing that even from the defendant’s unique perspective there was anything unfair about the sen tence he received. For these reasons, I would conclude that this court need not notice the district court’s sentencing error, in treating the guidelines as man datory, because the error does not seriously affect the fairness, integrity or pub lic reputation of judicial-6-

proceedings in this case.04-2045, United States v. Gonzalez-Huerta

HARTZ , Circuit Judge, concurring:

I. I join Judge Tacha’s opinion for the court. I writ e separately to focus on how the remedy provided by Bookeraffects plain-error review.
II. Defendant’s sentence must be affirmed. Relief unde r the plain-error doctrine is not proper, because a remand for resent encing would not advance fairness or the integrity of judicial proceedings a nd would more likely injure the reputation of the courts than improve it. Defendan t was sentenced in accordance with national norms incorporated within sentencing guidelines established by a sentencing commission whose charter for two decades has been to improve the fairness and uniformity of sentencing in the federa l courts. To remand for resentencing in the absence of evidence in the reco rd that the guideline range would be inappropriate for this defendant would serve only to permit the district court to deviate from those guidelines in the exerc ise of an idiosyncratic personal view of fairness. Nothing in the record suggests t hat the guidelines have failed to accommodate a significant feature of Defendant’s cr ime or personal history, and the original sentence was not unreasonable. My rea soning follows: “No procedural principle is more familiar . . . tha n that a constitutional-2-

right, or a right of any other sort, may be forfeit ed in criminal as well as civil cases by the failure to make timely assertion of th e right before a tribunal having jurisdiction to determine it.” United States v. Olano , 507 U.S. 725, 731 (1993) (internal quotation marks omitted). Nevertheless, there is also a long tradition of correcting unpreserved errors in limited circumstan ces. Fed. R. Crim. P. 52(b) states: “Plain errors or defects affecting substan tial rights may be noticed although they were not brought to the attention of the court.” Under the plainerror doctrine a defendant who has failed to preser ve a claim of error in district court is entitled to relief only when (1) the distr ict court committed error under the law in effect at the time the appeal is heard, (2) the error is obvious under that law, and (3) the error affected the defendant’s sub stantial rights. Rule 52(b) then “leaves the decision to correct the forfeited errorwithin the sound discretion of the court of appeals, and the court should not exer cise that discretion unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Olano , 507 U.S. at 732 (internal quotation marks omitted ). The first two prongs of the plain-error test are no t disputed in this case. Most of the appellate decisions regarding plain err or in Booker- issue cases have focused on the third prong—the effect of the error on the defendant’s substantial rights. But because of the unusual nature of the Bookerdecision, addressing the propriety of the exercise of discretion (what I wil l refer to as the fourth prong)-3-

may often enable the appellate court to avoid the t roubling third-prong issues that have divided the other circuits. What was unusual about the Bookerdecision was the disconnect between the constitutional violation and the remedy. To be sure, the remedy (making the Sentencing Guidelines advisory only) cures the cons titutional violation (permitting the judge to find by a preponderance of the evidence the facts necessary to impose a sentence of such severity). Ordinarily, however, the cure for a constitutional violation is more direct: If the court improperly instructed the jury, the case must be retried with a proper instru ction; if inadmissible evidence was presented to the jury, the case must be retried without the evidence, etc. In those cases if a constitutional error—such as the a dmission of evidence barred by the Confrontation Clause—affected the Defendant’s s ubstantial rights (thus satisfying prong three of the plain-error test), itis ordinarily natural to conclude that the fourth prong is also satisfied and reversa l is necessary in the interest of fairness, integrity, and the public reputation of j udicial proceedings. Not to reverse to correct the error is to ignore the injury the defendant suffered from the violation of his or her constitutional rights. Such would also be the appropriate approach had the remedial opinion in Bookerbeen otherwise. If, say, the Supreme Court had de cided that the cure for Bookererror was to require a retrial at which the jury w ould have to find beyond-4-

a reasonable doubt all facts needed to determine th e offense level used to calculate the guideline range, then the fourth pron g would ordinarily be satisfied if the defendant had been prejudiced by the trial j udge’s making a critical finding by a preponderance of the evidence. But that was not the remedy adopted in Booker . Even if the judge had made no critical finding, a defendant who preserved error is entitled to resentencing with the guidelines no longer being ma ndatory. And when the judge did make a critical finding, the remedy is not to s et aside the improper finding but, again, only to require resentencing under a di scretionary-guideline regime. As I shall explain, this is highly significant in applying plain-error’s fourth prong. As stated in Olano , discretion should not be exercised to correct a f orfeited error “unless the error seriously affect[ed] the fa irness, integrity, or public reputation of judicial proceedings.” Olano , 507 U.S. at 732 (internal quotation marks omitted). This language may suggest that in exercising discretion whether to correct the error, the appellate court should lo ok only backwards—at, say, the unfairness or damage to the reputation of judicial proceedings caused by the error in the district court. But surely the underlying c oncerns are simply fairness, integrity, and the public reputation of the courts. And those virtues can also be viewed in light of the remedy to be provided for th e error—in other words, by looking forward to see whether correcting the errorwill advance those ends. If-5-

granting the appellant the relief to which he or sh e would be entitled had the issue been preserved in district court would not advance the fairness, integrity, or public reputation of judicial proceedings, why shou ld the appellate court exercise its discretion to grant that relief? In this regar d, I think it noteworthy that in rejecting relief under the plain-error doctrine in a fairly recent case, the Supreme Court observed that “it would be the reversal of a conviction such as this [and not affirmance] which would [seriously affect the fairn ess, integrity or public reputation of judicial proceedings].” Johnson v. United States , 520 U.S. 461, 470 (1997). Thus, it seems to me essential in plain-error Bookercases to determine whether reversal and remand for resentencing by a j udge under a discretionaryguideline regime would advance fairness, integrity, or the public reputation of the courts. To resolve the issue requires examination of what purpose would be served by a remand to allow the sentencing judge to deviate from the sentencing range set by the guidelines. The federal sentencing guidelines, it must be remem bered, were the product of concern about the unfairness arising from deviat ions in sentencing that could be attributed only to the idiosyncracies of individ ual judges. Prior to enactment of the Sentencing Reform Act of 1984, the broad dis cretion enjoyed by sentencing judges “led to perceptions that ‘federal judges met e out an unjustifiably wide-6-

range of sentences to offenders with similar histor ies, convicted of similar crimes, committed under similar circumstances.’” Koon v. United States , 518 U.S. 81, 92 (1996), quoting S. Rep. No. 98-225, p. 38 (1983). Such perceptions could only damage the reputation of the courts. The 1984 stat ute was intended to reduce the problem. Writing for the Court in United States v. Booker , 125 S. Ct. 738 (2005), Justice Breyer spoke of “the increased uniformity o f sentencing that Congress intended the Guidelines system to achieve.” Id . at 757. See also id . at 785 (Stevens, J. dissenting) (“‘[T]he core function of the guidelines and the underlying statute . . . is to reduce disparity in sentencing and restore fairness and predictability to the sentencing process.’” (quotin g 133 Cong. Rec. 33109 (1987) (remarks of Sen. Hatch))); id . at 789 (Scalia, J., dissenting) (“Justice Breyer’ s opinion for the Court repeatedly acknowledges that the primary objective of the Act was to reduce sentencing disparity.”). That pu rpose survives Booker although, of course, the discretion now granted to sentencing judges will decrease uniformity. To further the objectives of fairness and uniformity, the Sentencing Commission has labored for two decades to establish national norms for sentencing. See Mistretta v. United States , 488 U.S. 361, 369-70 (1989) (summarizing responsibilities of the Commission). These norms reflect the factors that should appropriately be considered in sentencing and the weight to be-7-

given those factors. The sentencing judge pre- Bookercould depart from the guidelines sentencing range, but only when “the cou rt finds that there exists an aggravating or mitigating circumstance of a kind, o r to a degree, not adequately taken into consideration by the Sentencing Commissi on in formulating the guidelines that should result in a sentence differe nt from that described.” 18 U.S.C. § 3553(b)(1). See generally Koon , 518 U.S. at 92-96 (describing operation of guidelines). No doubt many sentencing judges have disagreed with the guidelines ranges in particular cases. But Congres s, surely aware of the potential for the guidelines to offend the sensibilities of s entencing judges, chose uniformity as worth that cost. What, then, is accomplished by remanding for resent encing when the sentencing judge’s original fact findings are not q uestionable and the court correctly applied the Sentencing Guidelines? That depends. In some circumstances it will be apparent from the record o n appeal that the guidelines process has failed—that the result is objectively u nreasonable. To remand for resentencing in such circumstances may be necessary to advance “fairness, integrity, and the public reputation of judicial pr oceedings.” In the great bulk of cases, however, no such unfairness appears, and the sole purpose of a remand for resentencing would be to allow one party or the oth er to benefit from the idiosyncratic views of the particular judge. Reman ding for resentencing in such-8-

circumstances may be “fair” in the eyes of the sent encing judge and the prevailing party, but a sentence outside the national norms se t by the guidelines is not fair when viewed from the perspective of the federal cri minal justice system as a whole, and the process of remanding to create sente ncing disparities will injure “the public reputation of judicial proceedings.” This view is not contrary to the mandate in Booker

. Bookerrecognizes the injustice of disparate sentencing. To be sure, the mandate will result in greater sentencing disparities. But that is an undesirable consequence of the Supreme Court’s ruling, not the ruling’s goal. Although di sparities may be a necessary, unavoidable consequence of granting relief to those who preserved an Apprendior Blakely argument at sentencing, the plain-error doctrine do es not require that consequence to be magnified by granting relief to t hose who did not preserve below the claims they are raising with us. Turning to the present case, nothing in the record suggests that Defendant’s original sentence was unreasonable. The fourth pro ng of the plain-error test not being satisfied, the sentence must be affirmed.BRISCOE , J., joined by SEYMOUR , J., and HENRY , J., concurring in part and

dissenting in part, and joined by EBEL , J., as to Section IV, and LUCERO , J., as to Section V.

I agree with the majority that with the issuance of United States v. Booker , 125 S.Ct. 738 (2005), we must now conclude the dist rict court erred by applying the Sentencing Guidelines in a mandatory rather tha n advisory fashion at the time it sentenced Gonzalez-Huerta. Although I agree that this error was neither constitutional nor structural in nature, I disagree that the error does not warrant correction. When Gonzalez-Huerta was sentenced, no one in the courtroom – neither the district court nor counsel – knew of orapplied the correct law. In my view, this error not only affects Gonzalez-Huerta’s substantial rights, it also seriously affects the fundamental fairness, integri ty, or public reputation of judicial proceedings. Accordingly, I would remand this case for resentencing.
I. In September 2003, Gonzalez-Huerta was indicted by a federal grand jury on one count of reentry by a deported alien previou sly convicted of an aggravated felony, in violation of 8 U.S.C. § 1326. Gonzalez- Huerta pled guilty to that charge in November 2003, and was sentenced by the d istrict court on March 1, 2004. At the time of sentencing, Gonzalez-Huerta a dmitted all of the relevant facts set forth in the presentence investigation re port, including the fact of his-2-

prior conviction. Based upon those admitted facts, the district court sentenced Gonzalez-Huerta to 57 months’ imprisonment, a sente nce at the bottom of the applicable guideline range (57-71 months). Judgmen t was entered by the district court on March 2, 2004, and Gonzalez-Huerta filed anotice of appeal on March 8,
2004. As these facts indicate, Gonzalez-Huerta’s sentenci ng on March 1, 2004, predated the Supreme Court’s rulings in both Blakel y v. Washington , 124 S.Ct. 2531 (June 24, 2004), and Booker(January 12, 2005). Although Apprendi v. New Jersey , 530 U.S. 466 (2000), predated Gonzalez-Huerta’s s entencing, its holding that any fact increasing a sentence beyond the stat utory maximum must be submitted to a jury was seemingly inapplicable to G onzalez-Huerta’s case, since Gonzalez-Huerta’s sentence did not exceed the statu tory maximum penalty and the district court did not engage in any fact-findi ng. Not until after GonzalezHuerta had filed his notice of appeal did the Supre me Court issue Blakely and indicate, in the context of a Washington state case , that the “statutory maximum sentence” for Apprendi purposes is the maximum guideline sentence a judge may impose solely on the basis of the facts reflected i n the jury verdict or admitted by the defendant. On September 16, 2004, Gonzalez-Huerta filed his or iginal appellate brief asserting in pertinent part that, in light of Blake ly , “the federal Sentencing-3-

Guidelines [we]re unconstitutional and not severabl e.” Aplt. Br. at 4. Following the issuance of Booker , we directed the parties to file supplemental brie fs. Gonzalez-Huerta now asserts that the district courterred in sentencing him because, contrary to Booker , it applied the Sentencing Guidelines in a mandato ry rather than advisory fashion. Gonzalez-Huerta furt her argues that this error was both constitutional and structural in nature. Acco rdingly, Gonzalez-Huerta contends he is entitled to be resentenced.
II. In Booker , the Supreme Court addressed two questions: “wheth er [its] Apprendi line of cases applies to the Sentencing Guidelines , and if so, what portions of the Guidelines remain in effect.” 125 S.Ct. at 747. With respect to the first question, the Court held that its Apprend i line of cases, including Blakely , “applies to the Sentencing Guidelines.” Id. at 755. Thus, “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at 756. As for the second question, the Court, in what can be referred to as its “remedial holding,” “answer[ed] the quest ion of remedy by finding the provision of the federal sentencing statute that ma kes the Guidelines mandatory, 18 U.S.C.A. § 3553(b)(1) (Supp. 2004), incompatible with [its] constitutional1 Section 3742(e) sets forth standards of review on appeal, including de

novo review of departures from the applicable Guide lines range

. -4- holding.” Id. More specifically, the Court “conclude[d] that th is provision must be severed and excised, as must one other statutory section, § 3742(e) (main ed. and Supp. 2004), which depends upon the Guidelines’ mandatory nature.” 1 Id. at 756-57. The result, the Court held, was to “make[] the Guidelines effectively advisory.” Id. at 757. In other words, the Court held, “[i]t req uires a sentencing court to consider Guidelines ranges, see 18 U.S.C.A. § 3553(a)(4) (Supp. 2004), but it permits the court to tailor the sentence in light of other statutory concerns as well, see § 3553(a) (Supp. 2004).” Id. In its remedial holding in Booker , the Court outlined how its decision was to be applied: [W]e must apply today’s holdings – both the Sixth A mendment holding and our remedial interpretation of the Sent encing Act – to all cases on direct review. (citations omitted). Thatfact does not mean that we believe that every sentence gives rise to aSixth Amendment violation. Nor do we believe that every appeal wil l lead to a new sentencing hearing. That is because we expect revi ewing courts to apply ordinary prudential doctrines, determining, f or example, whether the issue was raised below and whether it fails the “plainerror” test. It is also because, in cases not invo lving a Sixth Amendment violation, whether resentencing is warran ted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error d octrine.
125 S.Ct. at 769. At least four directives can be drawn from this lan guage. First, Bookeris-5-

to be applied retroactively to cases, such as Gonza lez-Huerta’s, that were pending on direct review at the time of Booker ’s issuance. Second, not every case pending on direct review at the time of Booker ’s issuance will involve a Sixth Amendment sentencing violation or require a new sen tencing hearing. Third, “ordinary prudential doctrines,” including the plai n error test, are expected to be applied to cases pending on direct review at the ti me of Booker ’s issuance. Finally, the resolution of cases pending on direct review that do not involve a Sixth Amendment violation may hinge upon applicatio n of the harmless-error doctrine. Application of these directives requires a reviewin g court to first determine the type of error(s) at issue. As Bookermakes clear, a case pending on direct review at the time of the opinion’s issuance can po tentially involve (a) a Sixth Amendment violation resulting from the district cou rt’s enhancement of the defendant’s sentence based upon judicially-found fa cts, (b) a violation of Booker ’s remedial holding, i.e., the district court’s tre atment of the Sentencing Guidelines as mandatory rather than discretionary, or (c) both. After determining the type of alleged error(s) at issue, a reviewing court must then determine whether the defendant raised the issue(s) below and , in turn, the standard of review that should be applied to the alleged error( s).2 I agree with the majority that the error asserted b y Gonzalez-Huerta is

neither constitutional nor structural in nature. -6- III. Turning to Gonzalez-Huerta’s appeal, it is undisput ed that he has asserted one Booker -related error, i.e., that the district court in hi s case applied the Sentencing Guidelines in a mandatory rather than di scretionary fashion (what the majority refers to as “non-constitutional Bookererror”). 2 The next question, and the one on which our en banc review is most heavily focused, is what standard of review to apply to that alleged error. Generally speaking, we apply one of two standards o f review to errors arising in criminal cases. Which standard of revie w will apply depends upon whether or not the defendant asserted a timely obje ction to the error in the district court. If the defendant timely objected, the error is generally considered to be “nonforfeited,” and we in turn apply the “harmless error” standard outlined in Federal Rule of Criminal Procedure 52(a). United S tates v. Olano , 507 U.S. 725, 731 (1993). Under that standard, “[a]ny error . . . that does not affect substantial rights must be disregarded.” Fed. R. Crim. P. 52(a ). If the defendant did not timely object to the error, it is generally conside red “forfeited,” and we in turn apply the “plain error” standard outlined in Federa l Rule of Criminal Procedure 52(b). Olano , 507 U.S. at 731. Under Rule 52(b), a court of ap peals may correct-7-

(1) an error, (2) that is plain, and (3) that affec ts substantial rights, but only if (4) the error seriously affects the fairness, integrity , or public reputation of judicial proceedings. United States v. Cotton , 535 U.S. 625, 631 (2002). Although Rule 52(a) and Rule 52(b) “require[] the same kind of in quiry,” there is one important difference between them: in plain error cases “[i]tis the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Olano , 507 U.S. at 734. The difficulty we face in this case is that the err or asserted by GonzalezHuerta does not fit neatly within either of these t wo categories. To be sure, Gonzalez-Huerta did not assert the error below and instead is raising it for the first time on appeal. If we were to consider only that f act, it would be easy to classify the error as “forfeited” and then move to a straigh tforward application of the plain error standard outlined in Rule 52(b). To do so, h owever, would ignore the realities of this case. At the time Gonzalez-Huert a was sentenced, the Federal Sentencing Act made application of the United State s Sentencing Guidelines mandatory. See 18 U.S.C. § 3553(b)(1). Further, it is safe to say that no one at that time, including Gonzalez-Huerta and the distri ct court, could have predicted the absolute sea-change in federal sentencing that would ultimately be wrought by the Supreme Court in its Bookerremedial holding, i.e., severing and excising “the provision of the federal sentencing statute that ma kes the Guidelines mandatory,”3 In United States v. Labastida-Segura , 396 F.3d 1140, 1142-43 (10th Cir.

2005), this court applied the harmless error standa rd to a defendant who, like Gonzalez-Huerta, asserted a non-constitutional Book ererror. The only difference is that the defendant in Labastida-Segurawas sentenced after Blakely and thus was able to assert a Blakely -based challenge to the Guidelines. Id. at 1142. Notably, however, the defendant in Labastida-Seguradid not accurately predict (continued...) -8- 125 S.Ct. at 756, so as to render the Guidelines ad visory. Thus, in contrast to the overwhelming majority of plain error cases, it is u nreasonable in my view to conclude that Gonzalez-Huerta could and should have raised the issue below. See O’Connor v. Ohio , 385 U.S. 92, 93 (1966) (refusing to punish crimin al defendant for failing to anticipate a new constitutional rule recognized during the pendency of his direct appeal); United States v. Viola , 35 F.3d 37, 42 (2d Cir. 1994) (“If we were to penalize defendants for failing to challeng e entrenched precedent, we would be insisting upon an omniscience on the part of defendants about the course of the law that we do not have as judges. Imposing such a duty would only encourage frivolous objections and appeals.”), abro gated on other grounds , Salinas v. United States , 522 U.S. 52, 65-66 (1997); see generallyUnited States v. Dominguez Benitez , 124 S.Ct. 2333, 2340 (2004) (noting that one of t he primary policies underpinning Rule 52(b) is “to encourage t imely objections”). It therefore strikes me as disingenuous, as well as unfair, to t reat Gonzalez-Huerta’s error like the vast majority of other plain errors, and in tur n to require Gonzalez-Huerta to satisfy the typical plain error standard. 33 (...continued)

the remedy that would ultimately be adopted by the Supreme Court in Booker , i.e., he did not object before the district court b y asserting the Guidelines should be applied in an advisory rather than mandatory fas hion. Instead, he asserted that the unconstitutional provisions of the Guidelines w ere not severable. Id. Nevertheless, this court treated the non-constituti onal Bookererror as if it had been raised below, applied the harmless error stand ard, and remanded the case for resentencing. Id. at 1143. Although it is unclear at this point, perhaps this court, given the holding in Labastida-Segura , will adopt an approach similar to that recently a nnounced by the First Circuit, i.e., “offer[ing] to treat almos t any colorable claim in the district court as preserving the Bookerissue and avoiding plain error requirements.” United States v. Heldeman , No. 04-1915, 2005 WL 708397, at *3 (1st Cir. Mar. 29, 2005). -9- Gonzalez-Huerta’s case also fails to fit neatly wit hin the plain error framework for another reason. As noted, a plain er ror cannot be corrected unless it affects a defendant’s substantial rights. Olano , 507 U.S. at 734. “[I]n most cases,” this means “that the error must have been p rejudicial: It must have affected the outcome of the district court proceedings.” Id

. Typically, an appellate court applying the plain error test is able to make a rea sonable determination of an error’s prejudicial effect on the district court pr oceedings by reviewing the record on appeal. E.g. , Johnson v. United States , 520 U.S. 461, 470 (1997) (concluding that, despite district court’s plain error of decid ing the issue of materiality, i.e., Gaudinerror, in a perjury prosecution rather than submitting it to the jury, there was no basis for reversal because “the evidence sup porting materiality was ‘overwhelming’”); Harrington v. California , 395 U.S. 250, 254 (1969) (“Our4 For example, in his supplemental appellate brief, G onzalez-Huerta argues

that “[u]nder the old [mandatory guideline] scheme, . . . the [district] court was not allowed to consider that some jurisdictions hav e a ‘Fast Track’ program for illegal reentry defendants that allows them to rece ive substantially lower sentences than are available to defendants in juris dictions without such a program.” Aplt. Supp. Br. at 10 (citing United States v. Armenta-Castro , 227 F.3d 1255, 1277 (10th Cir. 2000)). Under the post- Bookeradvisory guideline scheme, however, he notes that “a sentencing court is required to consider ‘the need to avoid unwarranted sentencing disparities am ong defendants with similar records who have been found guilty of similar condu ct,’” and thus it would be reasonable for the district court in this case on r emand to “reduce the disparity produced by ‘Fast Track’ sentencing programs by low ering” his sentence since he “did not have the opportunity to benefit from such a program.” Id. -10- judgment must be based on our own reading of the re cord and on what seems to us to have been the probable impact of the” error at i ssue). Here, however, GonzalezHuerta’s sentencing proceedings were conducted by t he district court under what we now know was the mistaken assumption that the Se ntencing Guidelines were to be applied in a mandatory fashion. Thus, there was no opportunity or incentive, as there is now post-Booker , for Gonzalez-Huerta or the government to present evidence or arguments outside of the bounds allowed by the Guidelines. 4 See United States v. Barnett , 398 F.3d 516, 528 (6th Cir. 2005) (“Under the new postBookerframework, the district court is empowered with gr eater discretion to consider the factors provided in 18 U.S.C. § 3553(a ) in determining a proper sentence.”); United States v. Crosby , 397 F.3d 103, 115 (2d Cir. 2005) (“It will . . . be impossible to tell what considerations counsel for both sides might have brought to the sentencing judge’s attention had the y known that they could urge-11-

the judge to impose a non-Guidelines sentence.”); U nited States v. Jaber , No. CRIM.02-10201-NG, 2005 WL 605787, at *15 (D. Mass. Mar. 16, 2005) (taking into account, under § 3553(a), the fact that the de fendant was on salary and did not take a profit from the drug organization, the fact that the defendant engaged in no criminal conduct during the two years prior to his arrest, and the fact that the defendant’s post-conviction, pre-sentencing record was “perfect,” even though his wife was “hospitalized and dysfunctional,” his resi dence was foreclosed, and he was unable to find a meaningful job); United States v. Ranum , 353 F. Supp. 2d 984, 985-86 (E.D. Wis. 2005) (concluding that facto rs formerly forbidden to be considered under the Guidelines, such as a defendan t’s age, family ties and responsibilities, and physical, mental and emotiona l condition, may now be considered, post-Booker , pursuant to § 3553(a)); see also Steven G. Kalar, Booker Advisory: Into the Breyer Patch , 29 Champion 8, 15 (Mar. 2005) (suggesting that the “prohibited or discouraged departure” factors l isted in Chapter 5H of the Guidelines “are tailor-made for the broader equitab le analysis” that will now apply under Booker ). Likewise, there was no reason for the district court to give serious consideration to whether a sentence other than thatsuggested by the Guidelines was appropriate, nor was there any incentive for th e district court to voice concerns about the operation of the Guidelines. Se e Barnett , 398 F.3d at 528-29. In sum, because the entire legal framework in which Gonzalez-Huerta’s sentencing-12-

occurred was flawed, there is no way for him to pro ve, and for us to accurately assess, the likelihood that the district court woul d have imposed a different sentence had it known it had the discretion to do s o. In other words, “it would be exceedingly difficult for” Gonzalez-Huerta “to show that his sentence would have been different if the district court had sentenced him under [an] advisory, rather than the mandatory, Guidelines framework.” Id. at 528; see also United States v. Paladino , Nos. 03-2296, 03-2383, 03-2386, 04-1951, 04-2339, 04-2378, 2005 WL 435430, at *8 (7th Cir. Feb. 25, 2005) (noting the difficulty of assessing the effect of a sentencing error because “sentencing . . . is the choice of a point within a range established by Congress, and normally the ran ge is a broad one”); id. at *11 (recognizing “the impossible burden of proving thatthe sentencing judge would have imposed a different sentence had the judge notthought the guidelines mandatory”); Labastida-Segura , 396 F.3d at 1143 (applying harmless error standard to non-constitutional Bookererror and concluding it was impossible to determine what sentence would have been imposed by the district court under an advisory Guidelines framework). The majority quickly moves past this problem, sugge sting only that prejudice might be found to exist if there are stat ements in the record from the sentencing court expressing dissatisfaction with th e Guidelines sentence it believed, at the time, it was required to impose. Focusing the prejudice analysis-13-

on such evidence, however, ignores the reality of t he pre-Bookersentencing landscape. It is beyond dispute that the federal c ircuits, including our own, “repeatedly instructed sentencing courts pre-Bookerto impose sentences within the applicable mandatory Guidelines range, with limited exceptions, and . . . consistently upheld the constitutionality of the Gu idelines and their mandatory
nature . . . .” Barnett , 398 F.3d at 528. In turn, “[t]his well-establish ed case law substantially undermined any need or incentive for sentencing courts pre-Booker to note their objections and reservations in senten cing defendants under the thenmandatory Guidelines.” Id. at 529; see also Heldeman , 2005 WL 708397, at *3 (“we have recognized that a district judge [pre-Boo ker ] may well not have expressed his or her reservations because the guide lines made them hopeless”); Paladino , 2005 WL 435430, at *9 (suggesting that, pre-Booke r , “[a] conscientious judge” was “one who took the guidelines seriously w hatever his [or her] private views”). Thus, I agree with the Sixth Circuit that“[i]t would be improper,” and indeed cruelly ironic, for us to now “require defen dants such as” Gonzalez-Huerta “to produce this type of evidence–that sentencing c ourts had no reason to provide under our pre-Bookercase law–in order to establish that their substant ial rights have been affected.” Barnett , 398 F.3d at 529.
IV. Olano itself provides a way out of this thicket by recog nizing that the5 The majority states that “structural errors must, at a minimum, be

constitutional errors.” Maj. Op. at 11. Although the Supreme Court has sometimes used language suggesting that only consti tutional errors can qualify as “structural errors,” e.g. , Neder v. United States , 527 U.S. 1, 14 (1999) (“Under our cases, a constitutional error is either structu ral or it is not.”), the Fourth (continued...) -14- prejudice component (or the so-called “third prong” ) of the plain error test can be modified in extreme cases: We need not decide whether the phrase “affecti ng substantial rights” is always synonymous with “prejudicial.” ( citation omitted). There may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome , but this issue need not be addressed. Nor need we address those errors that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice . Normally, although perhaps not in every case , the defendant must make a specific showing of prejudice to satisfy the “affecting substantial rights” prong of Rule 52(b). 507 U.S. at 735 (emphasis added). This language re cognizes two possible exceptions to the “normal” formulation of the third prong. The first of these exceptions is for “structural errors,” i.e., the so -called “special category of forfeited errors that can be corrected regardless o f their effect on the outcome.” Id. at 735; see Barnett , 398 F.3d at 526 (interpreting Olano in this manner); see also United States v. Dominguez Benitez , 124 S.Ct. 2333, 2339 (2004) (noting that only structural errors can entitle a defendantto relief “without regard to [their] effect on the proceeding[s]”); Cotton , 535 U.S. at 632 (suggesting the Court in Olano was referring to structural errors). Although Gon zalez-Huerta contends the error at issue is structural in nature, I agree with the majority that it is not. 55 (...continued)

Circuit has expressly held that non-constitutional errors can also qualify as structural errors. See United States v. Curbelo , 343 F.3d 273, 280 (4th Cir. 2003) (holding, in a 2-1 decision, that, “whether violati ve of the Constitution or not, the error here is structural, and such errors ‘invalidate the conviction’ without any showing of prejudice.”). Likewise, the Third Circu it and this court have suggested as much. See United States v. Stevens , 223 F.3d 239, 244 (3d Cir. 2000) (stating that nonconstitutional errors “gener ally cannot amount to a structural defect”); United States v. Lewis , 21 Fed. Appx. 843 (10th Cir. 2001) (unpublished decision) (concluding that non-constit utional errors can warrant automatic reversal) (implying, without directly con cluding, that a violation of Fed. R. Crim. P. 8(c) was a structural error). Eve n assuming, arguendo, that structural errors can include non-constitutional er rors, I would still conclude that the error asserted by Gonzalez-Huerta is not struct ural in nature. -15- That still leaves, however, the second potential ex ception recognized in Olano , i.e., errors that “should be presumed prejudicial i f the defendant cannot make a specific showing of prejudice.” 507 U.S. at 735. Obviously, this language was meant to refer to something other than structural e rrors. See Dominguez Benitez , 124 S.Ct. at 2339 (noting that, other than for stru ctural errors, “relief for error is tied in some way to prejudicial effect”); Barnett , 398 F.3d at 526-27. Like the Sixth Circuit in Barnett , I conclude that the error asserted by Gonzalez-Huerta falls within this second exception. 398 F.3d at 527-28 (“We are convinced that this is an appropriate case in which to presume prejudice under the Supreme Court’s decision in Olano .”). To begin with, it is apparent, for the reasons outlined above, that the task of making a s pecific showing of prejudice is nearly impossible for Gonzalez-Huerta and others si tuated similarly to him, i.e., that “set” of defendants who were sentenced prior t o Bookerand Blakely

.6 Notably, the percentage of post-Bookersentences falling below the

advisory Guideline range for reasons other than a g overnment-sponsored reduction has been steadily rising since the issuan ce of Booker . See Linda D. Maxfield, U.S. Sentencing Comm’n, Data Extract on M arch 3: Numbers on PostBooker Sentencings (Mar. 14, 2005) (available at http://www.ussc.gov/Blakely/booker_030305.pdf) (noting that, as of March 3, 2005, 13.0 percent of all post-Bookersentences were below the guideline range for reasons other than a government-sponsored downw ard departure); Linda D. Maxfield, U.S. Sentencing Comm’n, Numbers on Post-B ooker Sentencings (Feb. 28, 2005) (noting that, as of February 17, 2005, 12 .0 percent of all post-Booker sentences were below the guideline range for reason s other than a governmentsponsored downward departure). -16- Notwithstanding that fact, the available post-Booke rdata allows us to say with reasonable probability, and perhaps near-certainty, that some of the defendants within this “set” were in fact prejudiced by applic ation of the mandatory Guideline regime. On March 22, 2005, the United States Sente ncing Commission’s Office of Policy Analysis issued a memorandum compiling data on post-Bookersentencings as of the close-of-business on March 15, 2005. Lin da D. Maxfield, U.S. Sentencing Comm’n, Data Extract on March 15: Number s on Post-Booker Sentencings (Mar. 14, 2005) (available at http://www.ussc.gov/Blakely/booker_ 030305.pdf). According to that data, approximately 36.0 percent of all post-Bookersentences were below the advisory Guideline range. Further, approximately 13.7 perce nt of all post-Bookersentences were below the advisory Guideline range for a reaso n other than a governmentsponsored reduction. 6 Extrapolating from this data, it appears reasonab le to assume that perhaps as many as 13.7 percent of all the defendants in our Booker-17-

plain-error set of cases, or approximately one out of every seven such defendants, would receive a below-Guideline sentence if they we re sentenced under a discretionary Guideline regime. In other words, th ere is some data to suggest that one out of every seven of such defendants were prej udiced by application of the pre-Bookermandatory Guideline regime. Further, if we confin e our analysis to only those defendants who, like Gonzalez-Huerta, re ceived a pre-Bookersentence at the very bottom of the applicable Guideline rang e, it appears safe to assume that the percentage actually prejudiced by the mandatory application of the Guidelines is higher. I therefore conclude that the “most pru dent course of action” in these unique circumstances is to apply the second Olano exception and presume prejudice. Id. at 529. Although Olano provides ample support for application of the pres umption of prejudice approach, I believe there is another s ource of case law that provides additional support. Our court and other circuits h ave recognized the “superveningdecision doctrine.” See United States v. Santiago , 238 F.3d 213, 215 (2d Cir. 2001) (noting that when source of error is superven ing judicial decision that alters settled law, it is appropriate to modify the third prong of the plain error rule so that the government bears the burden of persuasion) ; United States v. Washington , 12 F.3d 1128, 1139 (D.C. Cir. 1994) (recognizing do ctrine and noting that it “reflects the principle that it would be unfair, an d even contrary to the efficient7 Support for the doctrine can also be drawn from O’C onnor , where the

Supreme Court held that an Ohio state defendant’s “ failure to object to a practice which Ohio had long allowed [could not] strip him o f his right to attack the practice following its invalidation” by the Supreme Court during the pendency of his direct appeal. 385 U.S. at 93. -18- administration of justice, to expect a defendant to object at trial where existing law appears so clear as to foreclose any possibility of success.”); see also Anixter v. Home-State Prod. , 77 F.3d 1215, 1231-32 (10th Cir. 1996) (applying similar doctrine in civil case); United States v. Zeigler , 19 F.3d 486, 494 (10th Cir. 1994) (appearing to apply similar approach where governme nt objected to defendant’s sentence for the first time on appeal based on inte rvening Supreme Court decision that effectively overruled circuit precedent). Thi s doctrine, which appears to be rooted in Olano 7 , recognizes that “[a] defendant clearly has no duty to object to [something] that is based on firmly established cir cuit authority,” and thus “cannot be said to have ‘forfeited a right’ by not making a n objection, since at the time of trial no legal right existed.” Viola , 35 F.3d at 42. Cases falling within the scope of this doctrine are treated in a manner similar to “harmless error review under Rule 52(a),” thereby requiring “the government [to] show that the error did not affect the defendant’s substantial rights.” Id. The “presumption of prejudice” approach appears to achieve much the same result as the supervening decision doctrine, albeit by modifying the analysis under th e third prong of the plain error test rather than by channeling the case into the ha rmless error framework.-19-

In comparison to slavishly applying the traditional formulation of the third prong of the plain error test, adopting the “presumption of prejudice” approach will undoubtedly result in more of the relatively s mall set of plain-error Booker cases being remanded for resentencing. The costs a ssociated with that result, however, are minimal in my view, particularly in co mparison to the benefits of ensuring that defendants are not subjected to unnec essary and improper deprivations of their liberty. See United States v. Serrano-Beauvaix , Nos. 02- 2286, 02-2682, 2005 WL 503247, at *10 (1st Cir. Mar . 4, 2005) (Lipez, J., concurring) (“Given what is at stake in sentencing decisions–the potential for additional months or even years in prison–I believe that the increased administrative burdens are a tolerable price to pay .”); United States v. Williams , 399 F.3d 450, 456 (2d Cir. Feb. 23, 2005) (“A resen tencing is a brief event, normally taking less than a day and requiring the attendance of only the defendant, counsel, and court personnel.”); Barnett , 398 F.3d at 532 (Gwin, J., concurring) (“In summary, an unnecessarily restrictive plain er ror analysis will result in substantial additional work for this court and will save the district courts almost no time. * * * I believe it more efficient to remand this case to the district court for re-sentencing. Otherwise, we adopt a rule that resu lts in an inordinate expenditure of appellate court resources, yet saves the distric t court little.”). The majority expresses three reservations about ado pting the “presumption-20-

of prejudice” approach. In my view, none of those reservations are persuasive. First, they assert that “in the twelve years since its decision in Olano , the [Supreme] Court has never again mentioned this cate gory of presumed prejudice – let alone applied it to an analogous factual scenar io.” Maj. Op. at 13. Although this statement is true, it is equally true that the Supreme Court has never expressly repudiated the language in Olano discussing the category of presumed prejudice. Further, the majority cannot, in my view, point to any case that has come before the Supreme Court since Olano that has presented such a compelling case for application of that “presumed prejudice” exception. Indeed, if the error now asserted by Gonzalez does not fall within this exce ption, then I seriously question if any case ever will. Moreover, the majority over looks the various post-Olano circuit cases that have applied the “presumption of prejudice” approach to other
errors, e.g. , Barnett , 398 F.3d at 526- 27 (cataloging cases), as well a s the cases cited above which have applied the supervening-deci sion doctrine. Second, the majority suggests that because in some cases “the sentencing judge [may have] expressed unhappiness with the man datory nature of the Guidelines on the record,” “establishing that non-c onstitutional Bookererror affects substantial rights is not an impossible tas k.” Maj. Op. at 14. For the reasons already discussed, the fact that a handful of such cases may exist is not, in my view, a reasonable basis for rejecting the “pres umption of prejudice” approach.-21-

Third, the majority questions the “presumption of p rejudice” approach because “placing the burden on the appellant is one of the essential characteristics distinguishing plain error from harmless error,” an d “[s]hifting the burden to the appellee would seriously blur this distinction and would be inconsistent with our precedent.” Maj. Op. at 15. Again, for the reason s already discussed, it is apparent that this case and others like it do not f it neatly within either the harmless error or the plain error framework, and thus demand some type of meaningful exception. The fact that the “presumption of preju dice” approach may “blur th[e] distinction” between the two standards is not, in my view, a meaningful basis on which to reject the approach, particularly since th e “presumption of prejudice” approach originated with the Supreme Court and not the lower federal courts, and because the approach is obviously suited for an exc eedingly narrow range of cases. As for the alleged inconsistency between the “presu mption of prejudice” approach and our precedent regarding plain error, the majori ty does not point to any cases similar to the one at hand, nor can it point to any cases in which we have rejected the “presumption of prejudice” approach.

V. With this modification of the burden of persuasion with respect to prejudice in place, I now turn to application of the plain er ror test. The first two prongs of8 Every circuit that has applied a plain error analys is to a Bookererror has

agreed that the first and second prongs of the testare satisfied. The government in this case likewise agrees that the first and sec ond prongs of the test are satisfied. -22- the plain error test, i.e., was there (1) an error that (2) was plain, cannot seriously be disputed in this case. 8 In light of the remedial holding in Booker , it is apparent that the district court in this case erred in treat ing the Guidelines as mandatory rather than advisory. Although this error was not “plain” at the time of GonzalezHuerta’s sentencing (since Bookerhad not yet been issued at that time), it is the law at the time of the appellate decision that is r elevant here. See Johnson , 520 U.S. at 468 (holding that “where the law at the tim e of trial was settled and clearly contrary to the law at the time of appeal--it is en ough that the error be ‘plain’ at the time of appellate consideration.”). Thus, in l ight of the remedial holding in Booker , the error is now plain. E.g. , Barnett , 398 F.3d at 525-26. Applying the presumption of prejudice approach outl ined above, the third prong of the plain error test, i.e., whether the pl ain error affected substantial rights, is also satisfied. More specifically, the very real possibility that the district court in this case may have imposed a lower sentenc e under an advisory Guideline regime, combined with the near-impossibility of Gon zalez-Huerta demonstrating on the existing record that the district court like ly would have done so, allows us to presume that Gonzalez-Huerta “was prejudiced by the imposition of a sentence under the mandatory Guidelines.” Barnett , 398 F.3d at 529. Further, there is9 Like the Sixth Circuit in Barnett , I do not “discount the possibility . . .

that in other cases the evidence in the record will be sufficient to rebut the presumption of prejudice.” 398 F.3d at 529. Here, however, I am not aware of any “clear and specific” evidence in the record ind icating that the district court would not have imposed a lower sentence under an ad visory guideline regime. Id. -23- nothing in the record that would rebut this presump tion. 9 That leaves the fourth prong of the plain error tes t. Under that prong, we must exercise our discretion to “correct a plain fo rfeited error affecting substantial rights if the error ‘seriously affect[s] the fairne ss, integrity or public reputation of judicial proceedings.’” Olano , 507 U.S. at 736 (quoting United States v. Atkinso n , 297 U.S. 157, 160 (1936)). The question is whetherthat standard is satisfied here, where there is a reasonable probability that, had t he district court applied the Guidelines in an advisory rather than mandatory fas hion, Gonzalez-Huerta would have received a lesser sentence than the one actual ly imposed. In United States v. Brown , 316 F.3d 1151, 1161 (10th Cir. 2003), we noted that the federal circuit courts “have not hesitated to exercise their discretion to correct” plain errors arising from sentencing where the “correct application of the sentencing laws would likely significantly reduce t he length of the sentence.” Although we did not quantify what would constitute a “significant reduction” in the length of a sentence, a review of relevant case law suggests that almost any reduction in the amount of actual incarceration is sufficient to meet this definition. E.g. , Glover v. United States , 531 U.S. 198, 203 (2001) (concluding, in context of-24-

appeal from denial of 28 U.S.C. § 2255 motion, “that any amount of actual jail time” resulting from district court’s misapplicatio n of the Guidelines “has . . . significance” for purposes of assessing prejudice); United States v. Villegas , No. 03-21220, 2005 WL 627963, at *7 (5th Cir. Mar. 17, 2005) (concluding that, because district court’s error increased Guideline- suggested sentence by at least five months, the error seriously affected the fairn ess, integrity, or public reputation of judicial proceedings); United States v. Syme , 276 F.3d 131, 157-58 (3d Cir. 2002) (reaching similar conclusion where district c ourt’s error increased defendant’s minimum guideline sentence by seven mon ths); see also Paladino , 2005 WL 435430, at *9 (“It is a miscarriage of just ice to give a person an illegal sentence that increases his punishment”); United St ates v. Smith , 267 F.3d 1154, 1160 (D.C. Cir. 2001) (“we have no trouble concludi ng that a misapplication of the burden of proof that results in a defendant ser ving a longer sentence adversely affects the fairness and integrity of the judicial proceeding.”); United States v. Martinez-Rios , 143 F.3d 662, 678 (2d Cir. 1998) (“one would be h ard-pressed to think of a more senseless injustice than the depriv ation of a citizen’s liberty for several months as a result of [an] . . . error.”); cf. United States v. Phipps , 319 F.3d 177, 192 (5th Cir. 2003) (refusing to correct plain error where the erroneously long sentence ran concurrently with a v alid longer sentence); Brown , 316 F.3d at 1162 (refusing to correct plain error t hat likely operated in defendant’s-25-

favor). Because of the nature of the error at issue here, i t is impossible to quantify precisely how much Gonzalez-Huerta’s sentence mighthave been reduced had the district court applied the Guidelines in an advisory fashion. That is because, as already discussed, the error affected the entire le gal framework applied by the district court and counsel when Gonzalez-Huerta was sentenced, and thus the record on appeal is simply not adequate to allow us to reasonably estimate what sentence the district court would likely have impos ed had it applied the Guidelines in an advisory fashion. That said, it is not at al l unreasonable to assume, particularly in light of the fact that Gonzalez-Hue rta was sentenced at the very bottom of the applicable Guideline range, that, had the district court decided to exercise its discretion and deviate from the sugges ted Guideline range, it might have done so by imposing a sentence equivalent to t hat which would have been imposed under the next-lower Guideline range (51-63 months rather than 57-71 months). Doing so could conceivably have resulted in a reduction in GonzalezHuerta’s sentence of up to six months. Under clear ly established precedent, that potential reduction is serious enough to affect the “fairness, integrity or public reputation of judicial proceedings.” See , e.g. , United States v. Knight , 266 F.3d 203, 207 (3d Cir. 2001) (“application of an incorre ct guideline range resulting in a sentence that is also within the correct range affe cts substantial rights”); United-26-

States v. Osuna , 189 F.3d 1289, 1294 (10th Cir. 1999) (ordering re sentencing in plain error case where, absent district court’s sen tencing error, defendant’s guideline range would have been 46-57 months ratherthan 51-63 months); United
States v. Weaver , 161 F.3d 528, 530 (8th Cir. 1998) (rejecting gove rnment’s assertion that “error did not affect [defendant’s] substantial rights because . . . sentence he received fell within the Guidelines ran ge . . . which would have applied absent the error”); United States v. Spears , 159 F.3d 1081, 1088 (7th Cir. 1998) (remanding where juvenile offenses were wrong ly included, resulting in wrong criminal history category: “[t]he district co urt looked at the wrong sentencing range when determining [defendant’s] sen tence. We have determined this to constitute plain error.”); United States v. Martinez-Rios , 143 F.3d 662, 675- 76 (2d Cir. 1998) (concluding that, although it was unclear whether correcting error would have any effect on sentencing level, re mand was required under plain error analysis); United States v. Ford , 88 F.3d 1350, 1356 (4th Cir. 1996) (holding that where district court miscalculated criminal hi story points “[t]he error clearly affected [defendant’s] substantial rights because t he extra points caused [defendant] to be sentenced at a more severe guidel ine range”); United States v. Cabral-Castillo , 35 F.3d 182, 182 (5th Cir. 1994) (remanding sente nce where defendant was sentenced under a mistaken range of b etween 188 and 255 months even though defendant’s actual sentence, 188 months , fell within the proper range-27-

of 151 to 188 months); United States v. Robinson , 20 F.3d 270, 273 (7th Cir. 1994) (“A sentence based on an incorrect guideline range constitutes an error affecting substantial rights and thus constitutes p lain error.”); United States v. Plaza-Garcia , 914 F.2d 345, 347-48 (1st Cir. 1990) (remanding s entence within both erroneously applied and correct Guideline rang es under plain error doctrine because sentence “may well have been influenced by the [erroneous] sentencing recommendation”). Even putting aside any estimates of how much Gonzal ez-Huerta’s sentence could reasonably have been reduced, I agree with th e Sixth Circuit that the revolutionary nature of Booker ’s remedial holding, standing alone, warrants the exercise of our discretion in cases like Gonzalez-H uerta’s. More specifically, I conclude “it would be fundamentally unfair to allow [Gonzalez-Huerta’s] sentence, imposed under a mandatory Guidelines regi me, to stand in light of this substantial development in, and alteration of, the applicable legal framework.”
Barnett , 398 F.3d at 530; see Crosby , 397 F.3d at 115 (“[A] sentence unreasonable for legal error in the method of its selection is c ause for concern because, in many cases, it will be impossible to tell whether the ju dge would have imposed the same sentence had the judge not felt compelled to impose a Guidelines sentence.”). Although the majority concludes that Gonzalez-Huert a has failed to satisfy the fourth prong of the plain error test, there are , in my view, at least five flaws in10 The majority suggests that “several courts of appea ls have collapsed the

third and fourth prong analyses.” Maj. Op. at 16. I disagree. In my view, the circuits that have found plain error in light of Bo okersimply subscribe to the position that “[i]t is a miscarriage of justice to give a person an illegal sentence that increases his punishment . . . .” Paladino , — F.3d at —, 2005 WL 435430 at *9. -28- the majority’s reasoning. 10 First, the majority all but ignores our prior pre cedent, and that of other circuits, recognizing that forfei ted sentencing errors (including simple misapplications of Guideline provisions) can , and often do, affect the fairness, integrity, or public reputation of judici al proceedings. Second, and relatedly, the majority fails (yet again) to acknow ledge the dramatic change in sentencing law wrought by Booker , and instead suggests that the district court’s “mandatory application of the Guidelines [was not] particularly egregious.” Maj. Op. at 20. Were that characterization correct, I s trongly suspect the Supreme Court would not now be vacating the judgments in th e hundreds of criminal cases that were pending before it on direct review at the time of Booker ’s issuance. Moreover, had the Supreme Court been in agreement w ith that characterization, it could easily have said so in Booker ’s remedial holding, and thereby obviated the circuit-by-circuit wrangling that is now occurring over application of the plain error test to non-constitutional Bookererrors. Third, by suggesting that a sentence imposed within the Guidelines does not implicate th e fairness, integrity, or public reputation of judicial proceedings, the majority fa ils to give full effect to Booker ’s remedial opinion, and instead demonstrates a prefer ence for the pre-Booker ,-29-

mandatory Guideline regime. We should judge the fa irness, integrity, and reputation concerns not by whether the sentence was imposed under long-standing guidelines, but rather whether the sentence imposed satisfies those same concerns when reviewed under the changed law. Fourth, by su ggesting that GonzalezHuerta cannot satisfy the fourth prong because his sentence was imposed within the Guidelines, the majority effectively usurps the function of discretionary sentencing that has been afforded to district court s by Booker . In other words, the majority refuses to afford the district court in th is case an opportunity to exercise its discretion to sentence Gonzalez-Huerta simply b ecause, in the majority’s view, the Guideline sentence originally imposed is reason able. The impropriety of this approach was succinctly outlined by the Fourth Circ uit in United States v. Hughes , No. 03-4172, 2005 WL 628224, at *17 n.14 (4th Cir. Mar. 16, 2005): It is not enough for us to say that the sentence imposed by the district court is reasonable irrespective of the error. The determination of reasonableness depends not only on an evaluation of the actual sentence imposed but also the method employed in de termining it. Moreover, declining to notice the error would be ta ntamount to performing the sentencing function ourselves. This is so because the district court was never called upon to impose a se ntence under an advisory guideline regime. That the particular sen tence imposed here might be reasonable is not to say that the districtcourt, now vested with broader sentencing discretion, could not have imposed a different sentence that might also have been reason able. We simply do not know how the district court would have sente nced [defendant] had it been operating under the remedial scheme ann ounced in Booker

. Fifth, although the majority suggests that granting relief to Gonzalez-Huerta would-30-

call into question the “tens of thousands [of] fede ral sentences” imposed under the Guidelines since their implementation, there is no indication in Bookerthat it was meant to be applied retroactively, and at least two circuits have expressly so held.
See Humphress v. United States , 398 F.3d 855, 857 (6th Cir. 2005) (holding that Bookerdoes not apply retroactively to initial § 2255 mot ions); McReynolds v. United States , 397 F.3d 479, 481 (7th Cir. 2005) (same); see also United States v. Price , No. 04-7058, 2005 WL 535361 (10th Cir. Mar. 8, 20 05) (holding that Blakelydoes not apply retroactively); Bey v. United State s , 399 F.3d 1266, 1269 (10th Cir. Mar. 1, 2005) (holding that Bookercould not be raised in a second or successive § 2255 motion). Moreover, in the name o f allegedly preserving the integrity of established sentences, the majority ef fectively “condemn[s]” perhaps as many as one out of every seven defendants in the plain-error “set” of cases, including possibly Gonzalez-Huerta, “to serve an il legal sentence,” i.e., a sentence longer than that which would have been imposed by t he district court under an advisory Guideline regime. Paladino , 2005 WL 435430 at *11. I cannot agree with my colleagues who conclude thata remand for resentencing in this case “would not advance fairne ss or the integrity of judicial proceedings” but “would more likely injure the repu tation of the courts than improve it.” Hartz Concurrence, at 1. Specificall y, the concern is voiced that remanding cases like Gonzalez-Huerta’s for resenten cing under an advisory-31-

guideline regime “would serve only to permit the di strict court to deviate from th[e] guidelines in the exercise of an idiosyncrati c personal view of fairness,” and thus would result in less uniform sentences. Id. I submit these concerns run counter to the mandate set forth in Booker , i.e., to afford defendants, including those whose appeals were pending on direct review at the time of Booker ’s issuance, the opportunity of having the sentencing judge exercise his or her discretion under an advisory guideline regime, subj ect to appellate review for abuse of that discretion under a “reasonableness” s tandard. Does it advance the fairness, integrity, or public reputation of the co urts if we ignore the Booker mandate and remove from the district court the very sentencing discretion the Supreme Court gave it? That a resulting sentence o n remand may be less “uniform” and may deviate from the prior guideline sentence are not valid reasons for concluding the plain error we all agree occurre d at sentencing should not be corrected. To the contrary, the fact that the sentencing judge may impose a different sentence on remand is an argument for, rather than against, sentencing remand. Because all four prongs of the plain error test are satisfied in this case, I would remand to the district court for resentencing

.LUCERO , Circuit Judge, dissenting.

I join Part V of Judge Briscoe’s dissenting opinion . It is my judgement that the Court’s remand of Fanfan for further proceedings precludes the approach taken by my esteemed colleagues speaking in the maj ority. If the Court had concluded that the fourth prong of Olano could not be met, there would have remained no basis upon which to remand Fanfan’s cas e for further proceedings allowing the government, and potentially the defend ant, the benefit of Booker ’s remedial holding. This very action by the Court saps any intellectual vigor from the majority’s categorical decision to preclude exe rcise of our prudential obligations under Booker/Fanfan . I agree with the dissent that when there was no opportunity for the defendant or the government to develop a record relevant to post-Bookerdiscretionary sentencing, that even in non-constit utional cases fundamental fairness is clearly implicated. I also agree with much of the analysis of my other dissenting colleagues as to the third Olano factor as ably expressed by Judge Briscoe. Becaus e defendants like Gonzalez-Huerta were sentenced under a system in which the parties and the court were laboring under a fundamental mistake of law, it is difficult, if not impossible, for us to assess what a district court would have done in the proper exercise of its discretion. That flawed legal fram ework effectively eliminated any incentive litigants might have had to present evide nce and make objections that-2-

would have been relevant to the exercise of a distr ict court’s discretion. With regard to each of these considerations, I agree wit h Judge Briscoe’s dissent. Where I respectfully depart from the reasoning of b oth the majority and Judge Briscoe is with the premise that analyzing wh ether substantial rights have been affected by a sentence imposed in plain error turns on who has the burden to demonstrate “that the error must have affected the outcome of the district court proceedings.” United States v. Cotton , 535 U.S. 625, 632 (2002). Like Judge Briscoe, the Sixth Circuit responded to the burden shifting difficulty by presuming that defendants were prejudiced by Bookererror. United States v.
Barnett , 398 F.3d 516, 526-527 (6th Cir. 2005) (presuming prejudice because “the inherent nature of the error made it exceptionally difficult for the defendant to demonstrate that the outcome of the lower court pro ceeding would have been different had the error not occurred”). By contras t, like the majority, the Eleventh Circuit leaves the burden on the defendant to prove prejudice, and concludes that a defendant must lose where it is unclear from the record whether he was prejudiced. United States v. Rodriguez , 398 F.3d 1291, 1300 (11th Cir. 2005) (“[I]f the effect of the error is uncertain so thatwe do not know which, if either, side it helped the defendant loses.”). I would follow neither extreme; rather, I would ado pt the approach of the Second Circuit and the Seventh Circuit. That appro ach was well described by-3-

Judge Newman in the panel decision in United States v. Crosby , 397 F.3d 103 (2d Cir. 2005): “Some might suppose that the only choice for an app ellate court in a case presenting a procedural error in imposing a sentence is between disregarding the error and requiring a new sentencing. However, the choice is not so limited. Section 374 2(f) provides: ‘If the court of appeals determines that – (1) the sentence was imposed in violation of law . . . , the court shall remand the case for further sentencing proceedings with such instru ctions as the court considers appropriate.’ . . . [W]e conclude t hat the ‘further sentencing proceedings’ generally appropriate for p reBooker/Fanfan sentences pending on direct review wi ll be a remand to the district court, not for the purpose o f a required resentencing, but only for the more limited purpose of permitting the sentencing judge to determine whether to resent ence, now fully informed of the new sentencing regime, and if so, to resentence.” Id. at 117; see also United States v. Paladino , F.3d (7th Cir. 2005) (“what an appellate court should do in Bookercases in which it is difficult for us to determine whether the error was prejudicial is, whi le retaining jurisdiction of the appeal, order a limited remand to permit the senten cing judge to determine whether he would (if required to resentence) reimpo se his original sentence.”). Where the record at trial was developed under a sys tem operating under a mistake of law as to the exercise of a district cou rt’s discretion, and where analysis of prejudice based on that error can be no more than an educated guess, we can fulfill our obligation under “plain error re view” only by availing ourselves of the full information a limited remand to the dis trict court would provide. Not-4-

only is a limited remand the most pragmatic approac h, I would agree with the Second Circuit that it is within our appellate powe r: “since an appellate court has the authority to remand for resentencing, absent harmless error or unpreserved error that does not satisfy plain error analysis, w e think an appellate court necessarily has the lesser power to remand for a de termination of whether to resentence, and to permit resentencing.” Crosby , 397 F.3d at 117. What recommends the approach taken by the Second an d Seventh Circuits is that it recognizes the likely impossibility of p roving prejudice based on a record created in a pre-Bookersentencing proceeding, but does not purport to sol ve that injustice by imposing the same impossibility on the government. Rather, it leaves the burden on the defendant as is required by plain error review, but permits the defendant to construct a relevant record and allows the district court to weigh the evidence in the exercise of its discretion. Becaus e the sentencing court is more appropriately the venue than is ours to conduct the fact-finding necessary to evaluate any new evidence offered by the parties, and is most capable of determining whether in light of this evidence and i ts new discretion it would have imposed a different sentence, remand is necessary. A district court’s determination that in the exerci se of its discretion it would have imposed a non-trivially different sentence con clusively demonstrates that the original sentence affects a defendant’s substantial rights, and thus satisfies the-5-

third Olano factor. Moreover, for the reasons stated in Judge Briscoe’s dissent, a sentencing judge’s decision that he would have impo sed a non-trivially different sentence establishes that the error plaguing the or iginal sentence seriously affects the fairness, integrity, or public reputation of ju dicial proceedings. Conversely, any error in selecting the original sentence would not be prejudicial if the sentencing court determines on remand, after review ing the parties’ proffers of evidence and argument, that it would have imposed e ssentially the same sentence under an advisory Guidelines regime. In opposition, the majority complains that the Seco nd Circuit approach collapses the third and fourth Olano factors, contrary to Supreme Court precedent. (Slip op. at 16.) (“if these courts find the third prong satisfied, they conclude that the fourth prong is met as a matter of course”). I n this claim, the majority is mistaken. What occurs “as a matter of course” unde r a limited remand is that if the district court determines that it would impose a different sentence, then there is no longer any doubt as to whether the fairness o f the proceedings is seriously affected. I would hold to the principle that where a defendant is illegally sentenced and prejudice is established by a distric t court’s conclusion that it would have imposed a non-trivially different senten ce, then our discretion under the fourth prong is effectively at an end. The onl y reasonable conclusion that can follow from such a state of affairs is that the fun damental fairness and integrity of-6-

the courts are clearly implicated. This conclusion does not “collapse” the third and fourth prongs. Applying this approach to the facts of this case, I would hold that the record before us is insufficient to determine with confide nce whether Gonzalez-Huerta was prejudiced by the district court’s plainly erro neous application of the Sentencing Guidelines. Gonzalez-Huerta was sentenc ed at the very bottom of the Guidelines range. Although we can infer that the d istrict court did not wish to impose a higher sentence, we cannot say whether the court would have imposed a lower sentence in the exercise of its discretion. Adding to that uncertainty is the fact that Gonzalez-Huerta declined to offer any mit igating evidence not captured by the presentence report. He apparently would hav e done so under the present discretionary regime, as he desired to argue that t he presence of a “Fast Track” program in other jurisdictions allows defendants th ere “to receive substantially lower sentences than are available to defendants in jurisdictions without such a program.” Aplt. Supp. Br. at 10. He informs us on appeal that, had his sentencing occurred under the post-Bookersentencing regime, he would have argued that the district court should impose a lowe r sentence to “reduce the disparity produced by ‘Fast Track.’” Id. Gonzalez-Huerta received a sentence at the very bottom of the Guidelines range, the distri ct court did not have any evidence before it other than that contained in the PSR, and Gonzalez-Huerta-7-

presents an argument on appeal that he would have m ade to influence the district court’s discretion. For these reasons, I would rem and this case so that the district court may, on consideration of any additional evide nce or arguments that the defendant or the government may proffer, determine whether to resentence in light of Booker

. The division on this court over the proper approach to Bookercases pending direct review is replicated among the vario us circuit courts. This wide ranging circuit split results in the disparate treatment of criminal defendants throughout the nation. Such uneven administration of justice cries out for a uniform declaration of policy by the Supreme Court.