In this task, you will be shown a prompt from a judicial decision and multiple holding statements derived from citations following text in a legal decision.  Holdings represent the governing legal rule when the law is applied to a particular set of facts. There are five answer choices for each citing text. The correct answer is the holding statement that corresponds to the citing text. The four incorrect answers are other holding statements. You should find the correct option. There is a <HOLDING> token in the position of the citing text prompt where the holding statement was extracted.

Q: Accordingly, the second Olano prong is satisfied: the error, both as to the absence of a jury determination on an essential element of the offense and the failure to include that element in the indictment, was indeed “plain.” c. Did the plain error affect Thomas’s substantial rights? An error affects a defendant’s “substantial rights” if it is “prejudicial” and it “affected the outcome of the district court proceedings.” Gore, 154 F.3d at 47. “Though ‘prejudice’ is also required to show that an error is not ‘harmless,’ pursuant to Fed.R.Crim.P. 52(a), the important difference of plain error prejudice [in most cases] is that ‘[i]t is the defendant rather than the Government who bears the burden of pers , 2001), with United States v. Vazquez, 271 F.3d 93, 100-01 3d Cir. (2001) (en banc) (<HOLDING>), and United States v. Terry, 240 F.3d 65, 
 Holding statements: (A) holding that any error was harmless and thus not plain error (B) holding that constitutional error cannot be premised on error in a charge unless the error violated some right which was guaranteed to the defendant by the fourteenth amendment (C) holding that sentencing error is harmless if the error did not affect the district courts selection of the sentence imposed (D) holding at the governments urging that a similar error was an error in both the trial and sentencing (E) holding that error in method by which interest from damages award was calculated was an error in substantive law not a clerical or mathematical error

A: (D)
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Q: substantial rights. Mares, 402 F.3d at 520. The district court made no comments suggesting it would have imposed a lesser sentence in the absence of mandatory guidelines. See United States v. Bringier, 405 F.3d 310, 317 (5th Cir.2005) (stating the issue as “whether [the defendant] has demonstrated that the sentencing judge would have reached a different result had it sentenced [the defendant] under an advisory scheme rather than a mandatory one”), cert. denied, — U.S. -, 126 S.Ct. 264, 163 L.Ed.2d 238 (2005) (No. 05-5535). Therefore, Tovar fails to demonstrate plain error. Tovar contends for the first time on appeal that the statute under which he was convicted, 21 U.S.C. § 841, is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (<HOLDING>). As he concedes, however, this issue is 
 Holding statements: (A) holding any fact other than a prior conviction that increases the maximum penalty beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt (B) holding that ojther 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 (C) holding that any fact other than a prior conviction may not be used to enhance a defendants sentence beyond the statutory maximum unless it is submitted to a jury and proved beyond a reasonable doubt (D) holding that 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 (E) holding that other than fact of prior conviction any fact that increases penalty for crime beyond prescribed statutory minimum must be submitted to jury and proved beyond reasonable doubt

A: (C)
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Q: reached, two were struck for cause, and two were seated on the jury. The prosecutor then argued that defense counsel had not shown a prima facie case of discrimination. The trial court overruled appellant’s motion. After the jury was sworn and dismissed for the day, the prosecutor asked that she be allowed to explain on the record why she struck the contested jurors. Following the prosecutor’s presentation, defense counsel stated why she thought the State’s reasons were merely pretextual. Appellant claims the State waived its right to maintain that no prima facie showing of discrimination was made when it chose to give its reasons for striking jurors Delaney and Jones. See Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App.), cert. denied, — U.S. —, 113 S.Ct. 297, 121 L.Ed.2d 221 (1992) (<HOLDING>). We disagree. The record shows that the State 
 Holding statements: (A) holding that a prima facie case is subject to independent review (B) recognizing that whether the employee uses the mcdonnell douglas framework or other evidence to create a prima facie case when the employer offers a legitimate nondiseriminatory reason for its adverse action the question is whether a rational trier of fact could conclude that the employers action was taken for impermissibly discriminatory reasons (C) holding that once prosecutor makes raceneutral explanation for peremptory challenge and trial court rules on question of intentional discrimination issue of prima facie case becomes moot (D) holding that without more the mere fact that the prosecutor used a high number of strikes to remove women from the venire is insufficient to establish a prima facie case (E) holding that when the prosecutor articulates reasons for strikes and the trial court makes a ruling on discriminatory intent the question of whether a prima facie case was made is moot

A:
(E)
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