United States v. Gilchrist , 137 F. App'x 520 ( 2005 )

Filed: March 8, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4379
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DERRELL LAMONT GILCHRIST,
Defendant - Appellant.
O R D E R
On January 25, 2005, Darrell Lamont Gilchrist filed a petition
for rehearing with a suggestion for rehearing en banc to which the
government filed a response on February 11, 2005. Having reviewed
Gilchrist’s petition, the panel is of the opinion that Gilchrist’s
convictions should be affirmed for the reasons stated in the panel
opinion. However, the panel is of the opinion that Gilchrist’s
sentences must be vacated and the case remanded for resentencing in
light of United States v. Booker, 125 S. Ct. 738 (2005), which was
decided after the panel opinion issued in this case.
Accordingly, Gilchrist’s petition for rehearing is granted
solely on the issue of whether he is entitled to be resentenced.
No member of this court having asked for a poll on the petition for
rehearing en banc, the petition for rehearing en banc is denied.
Entered at the direction of Senior Judge Hamilton with the
concurrences of Judge Niemeyer and Judge Luttig.
For the Court
/s/ Patricia S. Connor
Clerk of Court
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LUTTIG, Circuit Judge, concurring:
I concur in the order of remand, although I do not believe
that such is absolutely necessary.
Because this case comes to us on plain error review and
because our court’s opinion in United States v. Hughes, 396 F.3d 374(4th Cir. 2005), remains an important part of the ongoing dialogue
in the courts of appeals as to the reach of Rule 52(b) in the wake
of United States v. Booker, 125 S. Ct. 738 (2005), I write below to
explain why I believe that our court erred, and fundamentally so,
in its application of Rule 52(b) in Hughes.
In order for a defendant to prevail under Rule 52(b), “there
must be an ‘error’ that is ‘plain’ and that ‘affects substantial
rights.’” United States v. Olano, 507 U.S. 725, 732 (1993). The
defendant bears the burden of establishing that an error affected
his substantial rights and must demonstrate that “the error
actually affected the outcome of the proceedings.” United States
v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998) (emphasis added).
In the context of an error relating to the imposition of sentence,
a defendant “must establish that [the imposed] sentence was longer
than that to which he would otherwise be subject.” United States
v. Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en banc). While the
Supreme Court has variously articulated the requirement that a
different result would have been likely or probable, see United
States v. Dominguez Benitez, 124 S. Ct. 2333, 2342 (2004) (Scalia,
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J. concurring), it has recently suggested that an offender can
establish prejudice with a “showing of a reasonable probability
that, but for [the error claimed], the result of the proceeding
would have been different.” Id. at 2339 (internal quotations
omitted); see also United States v. Antonakopoulos, No. 03-1384,
2005 WL 407365, at *7-8 (1st Cir. 2005) (adopting the Dominguez
Benitez “reasonable probability” standard for Booker claims).
Because “Rule 52(b) leaves the decision to correct the forfeited
error within the sound discretion of the court of appeals,” Olano,
507 U.S. at 732, the Supreme Court has admonished that we should
only notice “particularly egregious errors . . . that seriously
affect the fairness, integrity or public reputation of judicial
proceedings.” United States v. Young, 470 U.S. 1, 15 (1985).
I believe Hughes erred with regard to its identification of
the error, its determination of whether that error affected Hughes’
substantial rights, and in its determination that it should
exercise its discretion to recognize that error.
Proper application of Rule 52(b) depends upon an accurate
understanding of the error committed which, in turn, requires an
accurate understanding of Booker. It is as a consequence of its
failure to understand Booker that Hughes has fundamentally
misapplied the plain error doctrine in the wake of Booker.
In Booker, the Supreme Court held that judicial factfinding
that results in an increase in an offender’s sentence under the
4
“Guidelines as written” -- that is, the guidelines as “mandatory
and binding on all judges” -- violates the Sixth Amendment.
Booker, 125 S. Ct. at 750 (Stevens, J.). The Court’s remedy for
this constitutional infirmity, however, was not the abolition of
judicial factfinding; rather, the Court severed entirely “the
provision of the federal sentencing statute that makes the
Guidelines mandatory, 18 U.S.C. § 3553(b)(1),” id. at 756 (Breyer,
J.). The effect of this severance was to render the Guidelines
advisory in all cases, not merely those cases in which the trial
court impermissibly found facts in violation of the Sixth
Amendment. Indeed, the Court specifically rejected the
Government’s proposal to treat the guidelines as mandatory in cases
in which there was no constitutionally impermissible judicial
factfinding, on the grounds of the Court’s conclusion that
“Congress would not have authorized a mandatory system in some
cases and a nonmandatory system in others.” Id. at 768 (Breyer,
J.); see also id. at 769 (Breyer, J.) (“[W]e must apply today’s
holdings -- both the Sixth Amendment holding and our remedial
interpretation of the Sentencing Act -- to all cases on direct
review.”).
Because of the constitutional violation identified in Booker
and the remedy ordered by the Court, Booker errors can take two
forms.
5
First, it is error if the sentencing court (1) within a
mandatory guideline regime (2) found facts that resulted in an
increase in the offender’s sentence beyond that which would have
been supported by the jury’s findings. This error, which results
in a violation of the Sixth Amendment, is the type of error that
occurred in Booker’s case. As the Court explained, the district
court’s error was that it “applied the Guidelines as written and
imposed a sentence higher than the maximum authorized solely by the
jury’s verdict.” Id. at 769 (Breyer, J.). Justice Breyer’s
reference to the “Guidelines as written” confirms that the district
court’s treatment of the Guidelines as mandatory was necessarily
part of the error that occurred in Booker’s case. See Booker, 125
S. Ct. at 750 (“The Guidelines as written, however, are not
advisory; they are mandatory and binding on all judges.”) (emphasis
added).
Second, because the Court held that the remedy for
impermissible judicial factfinding in violation of the Sixth
Amendment was the severance of the provision that made the
Guidelines mandatory (rendering them in all cases advisory), it is
also error if the sentencing court merely imposed a sentence under
the Guidelines “as written,” that is, as mandatory. This second
type of error, which does not entail a violation of the Sixth
Amendment because the district court did not find facts
impermissibly, is the type of error that occurred in Fanfan’s case.
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While it is possible for a sentencing court to have erred
under Booker in either of these two respects, it must be understood
that a court will not have erred in either respect provided that it
sentenced the offender under the Guidelines as advisory only. And
this even if the court increased the offender’s sentence based upon
facts beyond those found by the jury.
Hughes’ mistake is evident from the first step of its plain
error analysis -- namely the identification of the error committed
by the district court. The panel in Hughes concluded that the
relevant error under Booker was simply the “imposition of a 46-
month sentence, in part based on facts found by the judge.” Id. at
379. The court did not consider as error the district court’s
application of the Guidelines in their mandatory form. Indeed,
Hughes suggests that the district court should have applied the
Guidelines in their mandatory form, but simply have relied only on
the facts found by the jury. Id. (“Here, under the mandatory
guideline regime in existence at the time of sentencing, that
maximum would have been calculated according to an Offense Level of
10 . . . which is the maximum authorized by the facts found by the
jury.”). By failing to recognize as error the district court’s
imposition of sentence on the assumption that the Guidelines were
mandatory, Hughes failed to take into account the entirety of the
holding of Booker -- both its conclusion of Sixth Amendment
violation and its ordered remedy. In effect, the Hughes court
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divorced the fact of the district court’s impermissible factfinding
from the fact that such factfinding was only impermissible because
of the district court’s assumption that the Guidelines were
mandatory. And in so doing, Hughes failed to appreciate the
central premise of Booker, namely that “[i]f the Guidelines . . .
could be read as merely advisory . . . [then] the selection of
particular sentences in response to differing sets of facts . . .
would not implicate the Sixth Amendment.” Booker, 125 S. Ct. at
750 (Stevens, J.).
A sentencing court’s error must be defined by reference to
what the district court should have done in light of the entire
holding of Booker; not merely by reference to the Sixth Amendment
violation identified in Booker. The error in Hughes thus was like
that in Booker’s case, namely judicial factfinding coupled with the
imposition of sentence under the Guidelines “as written,” or as
mandatory rather than advisory. The error was not, as
Hughes holds, that the district court merely failed to impose a
sentence on the basis of the facts as found by the jury, instead
imposing “a 46-month sentence, in part based on facts found by the
judge.” Id. at 379.
That the Hughes panel did so err is confirmed by Booker’s
instructions regarding the continuing vitality of the Guidelines
and the necessary implication that district courts may continue to
impose sentences based on extra-verdict factfinding. Indeed, after
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Booker, sentencing courts still “must consult [the] Guidelines and
take them into account when sentencing,” Booker, 125 S. Ct. at 768
(Breyer, J.), and “consider the Guidelines sentencing range
established for . . . the applicable category of defendant.” Id.
at 764 (Breyer, J.). Consideration of the applicable Guidelines
range for a particular defendant, of course, will continue to
include the district court’s consideration of facts not found by a
jury or included in a plea agreement. The Hughes panel itself
reached the same conclusion, though it failed to recognize the
implications of that conclusion, holding that “a district court
shall first calculate (after making the appropriate findings of
fact) the range prescribed by the guidelines.” Hughes, 396 F.3d at
378-79 (emphasis added).
The error in Hughes’ formulation is further confirmed by the
Supreme Court’s treatment of Fanfan’s claim. “In . . . Fanfan’s
case, the District Court . . . imposed a sentence that was
authorized by the jury’s verdict -- a sentence lower than the
sentence authorized by the Guidelines as written.” Id. Despite
the fact that there was no Sixth Amendment violation, the Court
vacated and remanded the sentence in order to permit the Government
to seek resentencing, presumably based on the extra-verdict facts
that the district court had refused to consider. Id. Thus, the
Court rejected Hughes’ implicit suggestion that the district court
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would not have erred had it only considered the facts found by the
jury.
Having failed to correctly identify the error committed by the
district court, the Hughes panel compounded its error by holding
that Hughes’ substantial rights had been affected because he would
have received a lower sentence had the district court imposed
Hughes’ sentence in accordance with the facts found by the jury.
Hughes, 396 F.3d at 380 (“Had the district court imposed a sentence
within that maximum [the maximum authorized by the facts found by
the jury alone], Hughes’ sentence would have been . . . markedly
lower.”). Had the district court applied the entire holding of
Booker, however, it would have made the same factual findings; it
simply would have treated the Guidelines as advisory, with respect
to the sentence to be imposed in light of those findings.
Accordingly, prejudice must be determined by comparing what the
district court did under a mandatory regime to “what the district
court would have done had it imposed a sentence in the exercise of
its discretion pursuant to § 3553(a),” id. at 380 n.6 -- an inquiry
expressly rejected in Hughes.1 Under such an analysis, as even the
1
Hughes believed it critical, if not dispositive, in
rejecting the prejudice inquiry mandated by Booker that “Hughes
[did] not argue that the district court erred by failing to regard
the guidelines as advisory . . . . Rather, Hughes argues that the
district court erred by imposing a sentence that was greater than
the maximum authorized by the facts found by the jury alone.”
Hughes, 396 F.3d at 380 n.6. But the Supreme Court’s holding in
Booker, not the litigant’s self-serving formulation of his claim,
defines the relevant legal error and prejudice inquiry. See United
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panel in Hughes conceded, Hughes failed to establish prejudice
because it “simply [did] not know how the district court would have
sentenced Hughes had it been operating under the regime established
by Booker.” Hughes, 396 F.3d at 381 n.8; see Jones v. United
States, 527 U.S. 373, 390 (1999) (“Where the effect of an alleged
error is . . . uncertain, a defendant cannot meet his burden [under
Rule 52(b)] of showing that the error actually affected his
substantial rights.”).2
That such a comparison is compelled by Booker is confirmed by
the sentencing method district courts are required to employ on
remand, even under Hughes. As the disposition of Fanfan’s case
confirms, district courts are not free to disregard extra-verdict
facts; rather, district courts must “calculate (after making the
appropriate findings of fact) the range prescribed by the
guidelines,” id. at 378-79 (emphasis added), and consider that
range in exercising its discretion pursuant to section 3553(a).
States v. Rodriguez, No. 04-12676, 2005 WL 272952, at *12 (11th
Cir. 2005) (“We disagree with the notion [in Hughes] that the
defendant can define the constitutional error, and thereby
predetermine the third prong of the plain error test, by the
phrasing of his argument.”).
2
For the same reason, in cases where an offender has
preserved his Booker challenge, it is unlikely that the Government
will be able to establish that such an error is “harmless beyond a
reasonable doubt” as it is required to do in order to prevail under
Rule 52(a). See Neder v. United States, 527 U.S. 1, 7 (1999).
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The Hughes panel erred in its final step as well, exercising
its discretion to notice the error on the grounds that “Booker
wrought a major change in how federal sentencing is to be
conducted,” Hughes, 396 F.3d at 380, and because “[t]he fact
remains that a sentence has yet to be imposed under a regime in
which the guidelines are treated as advisory.” Id. at 381 n.8.
While the latter observation is correct -- and, indeed, highlights
the Hughes panel’s erroneous identification of the relevant error
-- affirming pre-Booker sentences will not undermine the “fairness,
integrity or public reputation of judicial proceedings.” Hastings,
134 F.3d at 244 (internal quotation marks omitted). As the
Government explains in its well-taken petition for en banc
rehearing in Hughes, Hughes “was sentenced under a system that was
used for almost two decades to sentence hundreds of thousands of
offenders.” And the sentence he received “represent[ed] a 20-year
effort by the Sentencing Commission to formulate and update
sentencing policy to reflect the collective wisdom of Congress and
the judiciary; to assign carefully calibrated weights to factors,
both aggravating and mitigating, that judges have traditionally
used in determining appropriate sentences; and to account for the
sentencing purposes identified in 18 U.S.C. § 3553(a).” United
States’ Petition for Rehearing En Banc at 14-15, Hughes, 396 F.3d
374.
12
In stark contrast, the Hughes panel’s sweeping conclusions in
defense of its decision to notice the error in that case would
compel remand in every case where we must apply Rule 52(b) to
Booker errors. The court itself said in Hughes:
[I]t is not enough for us to say that the sentence
imposed by the district court is reasonable irrespective
of the error. The fact remains that a sentence has yet
to be imposed under a regime in which the guidelines are
treated as advisory. To leave standing this sentence
simply because it falls within the range of
reasonableness unquestionably impugns the fairness,
integrity, or public reputation of judicial proceedings.
Hughes, 396 F.3d at 381 n.8. As this quotation makes clear,
Hughes’ defense of its exercise of discretion does not rest on the
presence of a Sixth Amendment violation. Rather, it applies to all
sentences imposed pre-Booker –- including those imposed pursuant to
our direction in United States v. Hammoud, 381 F.3d 316 (4th Cir.
2004), for even in those cases the sentence received by the
offender was not “imposed under a regime in which the guidelines
are treated as advisory.”
Likewise, while Hughes does not address prejudice in the
context of a case without a Sixth Amendment violation, its defense
of its exercise of discretion compels the conclusion that every
sentence imposed pre-Booker violated the offender’s substantial
rights. Otherwise, we would find ourselves in the indefensible
position of holding that a Booker error did not affect an
offender’s substantial rights even though, under Hughes, such
errors must be classified as egregious errors that result in the
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miscarriage of justice. Hughes, in sum, would require us to vacate
and remand every pre-Booker sentence on appeal, a result
demonstrably at odds with that contemplated by the Supreme Court.
Booker, 125 S. Ct. at 769 (Breyer, J.) (“Nor do we believe that
ever appeal will lead to a new sentencing hearing. That is because
we expect reviewing courts to apply ordinary prudential doctrines,
determining, for example, whether the issue was raised below and
whether it fails the ‘plain error’ test.”).
It is for the foregoing reasons that I believe that our
decision in United States v. Hughes was fundamentally flawed.
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