2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-28-2005

USA v. Scott

Precedential or Non-Precedential: Precedential

Docket No. 03-1160

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 02-4521, 03-1130 & 03-1160

UNITED STATES OF AMERICA

v.

KEVIN DAVIS,

Appellant at No. 02-4521

KEVIN A. MINNIS,

Appellant at No. 03-1130

REGINAL SCOTT,

Appellant at No. 03-1160

Sur Denial of Petition for Rehearing En Banc

and Motion to Defer Disposition of All Pending Direct

Criminal Appeals Presenting Booker Claims Pending

Resolution of the Petition for Rehearing En Banc

(D.C. Criminal Nos. 02-cr-00106-1,

02-cr-00106-3, 02-cr-00106-2)
 Jones v. United States, 526 U.S. 227 (1999) (construing 1

provisions of federal carjacking statute to set forth additional

2

Before: SCIRICA, Chief Judge,

SLOVITER, NYGAARD, ALITO, ROTH,

McKEE, RENDELL, BARRY, AMBRO, FUENTES,

SMITH, FISHER, VAN ANTWERPEN,

and COWEN, Circuit Judges

(Filed: April 28, 2005)

OPINION SUR DENIAL OF THE

PETITION FOR REHEARING EN BANC

AND THE MOTION TO DEFER

SCIRICA, Chief Judge.

The government has moved to defer disposition of all

sentencing appeals pending resolution of its petition for

rehearing en banc in this case. We have denied the petition for

rehearing and will deny the motion as well.

The Supreme Court’s decision in United States v. Booker

brought about sweeping changes in the realm of federal

sentencing. 125 S. Ct. 738 (2005). Drawing upon its reasoning

in Jones, Apprendi, and Blakely, the Booker majority held that 1
elements of offense, rather than sentencing considerations, so

that facts triggering such provisions must be charged in

indictment and proven beyond a reasonable doubt); Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of

a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.”); Blakely v.

Washington, 542 U.S.---, 124 S. Ct. 2531 (2004) (extending

Apprendi to Washington’s state sentencing scheme).

3

mandatory enhancement of a sentence under the Guidelines,

based on facts found by the court alone, violates the Sixth

Amendment. Booker, 125 S. Ct. at 756. To remedy this

constitutional infirmity, the Court excised that provision of the

statute making application of the Guidelines mandatory. Id. at

764. In the aftermath of Booker, the Federal Sentencing

Guidelines– once a mandatory regime circumscribing the

discretion of district court judges– are “effectively advisory.”

Id. at 757. Under the post-Booker sentencing framework,

DistrictCourts will considerthe applicable advisory Guidelines

range in addition to factors set forth in 18 U.S.C. § 3553(a).

See Booker, 125 S. Ct. at 764-65. Booker is applicable to all

cases on direct review. Id. at 769. 

Direct appeals of sentences imposed before Booker

generally present two kinds of claims: first, defendants whose

sentences were enhanced by judicial factfinding raise Sixth

Amendment claims; second, defendants who contend the
 Where a defendant preserved a Booker claim before the 2

district court, we will review for harmless error under Fed. R.

Crim. P. 52(a).

4

DistrictCourts erroneously treated the Guidelines as mandatory

rather than advisory.

In our review of pre-Booker cases, many of the direct

appeals call for a plain error analysis because defendants did not

raise the sentencing issue before the District Court. See Fed. R.

Crim. P. 52(b). Where a defendant demonstrates “error” that 2

is “plain,” and that “affects substantial rights,” we may correct

that error where the “fairness, integrity, or public reputation of

judicial proceedings” was affected. United States v. Evans, 155

F.3d 245, 251 (3d Cir. 1998). As explained in Evans, an error

will affect substantial rights where it is prejudicial and “affected

the outcome of the district court proceedings.” Id. (quoting

United States v. Olano, 507 U.S. 725, 734 (1993)).

Where the District Court imposed a sentence greater than

the maximum authorized by the facts found by the jury alone,

the outcome of sentencing was altered to the defendant’s

detriment. Mandatory enhancement of a sentence in violation

of the Sixth Amendment is prejudicial and affects the

substantial rights of the defendant. As we have noted,

“imposing a sentence not authorized by law seriously affects the

fairness, integrity, and reputation of the proceedings.” Evans,

155 F.3d at 252 (citing United States v. Dozier, 119 F.3d 239,

244-45 (3d Cir. 1997)). In cases where a defendant’s sentence
 Prior to Booker, we addressed a similar issue in our en 3

banc opinion in United States v. Vasquez, 271 F.3d 93 (3d Cir.

2001). In Vasquez, the defendant was charged with drug

conspiracy, obstruction of justice, and witness tampering. 

Vasquez was convicted of conspiracy to distribute and possess

cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A),

which prescribed a maximum sentence of 20 years. Because of

three judicially-found facts– drug quantity, his leadership role,

and attempted obstruction of justice– the District Judge

sentenced him to more than 24 years’ imprisonment.

On appeal we discussed the effect of the judiciallydetermined drug quantity. We found Vasquez’s sentence

erroneous under Apprendi because the “judge, rather than the

jury, determined drug quantity and then sentenced Vasquez to .

. . a term in excess of his . . . statutory maximum.” 271 F.3d at

99. Despite the District Court’s error, however, we found that

Vasquez failed to show an effect on his substantial rights

because the drug quantity was never in dispute. The quantity of

drugs involved was established at trial and substantiated by

scientific evidence. Vasquez never contested the amount.

Accordingly, we held that Vasquez’s sentence would have been

the same if the government had submitted drug quantity for a

jury determination, that is, failure to submit this question to the

jury, therefore– while an Apprendi violation– had no actual

5

was enhanced based on facts neither admitted to nor found by

a jury, therefore, the defendant can demonstrate plain error and

may be entitled to resentencing. See United States v. Hughes,

3
effect on defendant’s sentence. 

We did not have the benefit of Booker when deciding

Vasquez. Nor did we hold that an Apprendi violation at

sentencing will never affect a defendant’s substantial rights;

rather, we held the substantial rights of the individual defendant

in that case were not affected.

6

401 F.3d 540 (4th Cir. 2005) (finding plain error and remanding

for resentencing because defendant– who was sentenced to 46

months due to judicial factfinding where the jury verdict

authorized only a 12-month sentence– demonstrated that his

substantial rights were affected).

Similarly, a defendant’s substantial rights may have been

affected where the District Court erred by treating the

Guidelines as mandatory rather than advisory. At this stage, we

cannot ascertain whether the District Court would have imposed

a greater or lesser sentence under an advisory framework. But

the mandatory nature of the Guidelines controlled the District

Court’s analysis. Because the sentencing calculus was

governed by a Guidelines framework erroneously believed to be

mandatory, the outcome of each sentencing hearing conducted

under this framework was necessarily affected. Although plain

error jurisprudence generally places the burden on an appellant

to demonstrate specific prejudice flowing from the District

Court’s error, in this context– where mandatory sentencing was

governed by an erroneous scheme– prejudice can be presumed.
7

See Olano, 507 U.S. at 735 (noting that certain types of error

should, on plain error review, “be presumed prejudicial if the

defendant cannot make a specific showing of prejudice”);

United States v. Adams, 252 F.3d 276, 287 (3d Cir. 2001)

(“Given the nature of the right [of allocution] and the difficulty

of proving prejudice from its violation, we conclude that we

should presume prejudice when a defendant shows a violation

of the right and the opportunity for such a violation to have

played a role in the district court's sentencing decision.”)

(emphasis in original); see also United States v. Barnett, 398

F.3d 516, 528 (6th Cir. 2005) (presuming prejudice where “it

would be exceedingly difficult” for defendant raising Booker

claim to show that the district court’s failure to treat the

Sentencing Guidelines as advisory affected his sentence). 

Furthermore, as noted by the Court of Appeals for the

Sixth Circuit, “[w]e would be usurping the discretionary power

granted to the district courts by Booker if we were to assume

that the district court would have given [defendant] the same

sentence post-Booker.” United States v. Oliver, 397 F.3d 369,

380 n.3 (6th Cir. 2005). Failure to remand for resentencing,

therefore, could adversely affect the fairness and integrity of the

proceedings. Accordingly, defendants sentenced under the

previously mandatory regime whose sentences are being

challenged on direct appeal may be able to demonstrate plain
 See Barnett, 398 F.3d at 516. In Barnett, defendant received 4

a sentence within the Guidelines range, did not object before the

district court, but challenged his sentence on appeal in light of

Booker. Specifically, he argued that the district court’s

mandatory application of the Sentencing Guidelines was plain

error. The Court of Appeals for the Sixth Circuit found plain

error, holding that Barnett’s “is an appropriate case in which to

presume prejudice” because the mandatory nature of the

Guidelines affected the district court’s sentencing calculus,

because it would be “exceedingly difficult” for a defendant to

demonstrate conclusively that the district court’s error affected

the outcome of the proceeding, and because “we simply do not

know how the district court could have sentenced.” Id. at 527-

29 (quotations omitted). The Barnett Court concluded:

Instead of speculating as to the district court’s

intentions in the pre-Booker world, and trying to

apply those intentions to predict the same court’s

sentence under the post-Booker scheme, we are

convinced that the most prudent course of action

in this case is to presume prejudice given the

distinct possibility that the district court would

have imposed a lower sentence under the new

post-Booker framework and the onerous burden

he would face in attempting to establish that the

sentencing court would have imposed such a

8

error and prejudice. We will remand such cases for

resentencing.4
sentence.

9

Booker applies to all cases pending on direct review. By

remanding, we ensure that each defendant to whom Booker

applies is sentenced accordingly. This approach results in

uniform treatment of post-Booker defendants on direct appeal,

fostering certainty in the administration of justice and efficient

use of judicial resources. Moreover, astheCourt of Appeals for

the Second Circuit has noted, “correction of error in the context

of sentencing does not precipitate . . . burdensome and often

lengthy consequence[s]” on remand. United States v. Crosby,

397 F.3d 103, 117 (2d Cir. 2005). 

 In this opinion, we express no view on waiver or

alternative sentences. We will continue to review each appeal

individually. Appellants have been directed to state whether

they wish to challenge their sentence under Booker. For those

who do not, we consider the appeal on its merits. Where an

appellant raises a Booker claim and establishes plain error,

however, we will decide claims of error related to the

conviction, vacate the sentence, and remand for consideration

of the appropriate sentence by the District Court in the first

instance. Accordingly, the Government’s Motion to Defer

Disposition of All Pending Criminal Appeals Presenting Booker

Claims Pending Resolution of the Government’s Petition for

Rehearing En Banc is denied.