United States v. McCoy, JoAnn

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2002 Decided December 20, 2002

No. 01-3052

United States of America,

Appellee

v.

JoAnn McCoy,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 98cr00082-01)

Lisa B. Wright, Assistant Federal Public Defender, argued

the cause for appellant. With her on the briefs was A. J.

Kramer, Federal Public Defender.

Elizabeth Trosman, Assistant U.S. Attorney, argued the

cause for appellee. With her on the briefs were Roscoe C.

Howard, Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese

III, and Suzanne G. Curt, Assistant U.S. Attorneys.

Before: Ginsburg, Chief Judge, Edwards, Sentelle,

Henderson, Randolph, Rogers, Tatel, and Garland, Circuit

Judges, and Williams, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

Williams.

Dissenting opinion filed by Circuit Judge Henderson, with

whom Chief Judge Ginsburg and Circuit Judge Sentelle

join.

Williams, Senior Circuit Judge: We here address the

scope of resentencing after a remand from the court of

appeals under the following conditions: (1) the defendant

seeks to raise a contention that was contingently relevant in

the initial sentencing (but the contingency did not then mate-

rialize); (2) defendant did not raise the contention in that

sentencing; and (3) the district court's action on remand

renders the contention determinative (if it is allowable and

correct). The source of the contingency here is the Sentenc-

ing Guidelines' complex treatment of multiple "groups" of

offenses. See U.S.S.G. s 3D1.4.

We conclude that the defendant's ability to raise her contin-

gent issue here depends upon whether she could establish

"good cause," within the meaning of Rule 32(b)(6)(D) of the

Federal Rules of Criminal Procedure, for not having raised it

sooner. The district court never considered the good cause

issue. Rather than remand to the district court, however, we

remand to the panel. If it finds that the merits claim is not a

winner, there will be no need for the district court to take the

matter up yet again.

* * *

JoAnn McCoy was convicted on two charges of making

false statements in a loan application and on one count of

perjury. Her case was referred to a probation officer, and

the process of generating a Presentence Report ("PSR")

proceeded along the lines prescribed by Rule 32(b)(6) (renum-

bered as Rules 32(e)-(g), per amendments effective December

1, 2002). The probation officer circulated a PSR (the "origi-

nal PSR") to the defendant and counsel on both sides, see

Rule 32(b)(6)(A), and the prosecution and the defense both

objected to various aspects, see Rule 32(b)(6)(B). The most

critical objection was the prosecution's request for an en-

hancement for obstruction of justice, to be applied to both the

crime "groups" (false statements and perjury). The proba-

tion officer added the enhancements and circulated a new

version of the PSR (the "revised PSR") on January 22, 1999.

See Rule 32(b)(6)(C).

The revised PSR calculated a "combined" offense level of

21. Twenty levels derived from the two false statement

counts--the false statement "group" for purposes of the

multi-group adjustment. U.S.S.G. s 3D1.4. These 20 levels

comprised 14 for the base offense and the size of the loss,

plus three upward adjustments of two levels each--for

McCoy's "managerial role" in directing other participants, for

her "more than minimal planning," and for her obstruction of

justice.

The second "group" was for McCoy's perjury conviction

and totaled 14 levels, 12 for the base offense and two for

obstruction of justice, and to a term of supervised release.

Finally, the revised PSR combined the two groups under

"multiple count adjustment" provisions of U.S.S.G. s 3D1.4,

adding one point to the false statement group for a "combined

offense level" of 21. Simplifying the arcane formula of

s 3D1.4 for purposes of this case, we may say that it calls for

no upward adjustment of the count for the more serious

group if the difference between the two groups is nine or

more levels, a one-point upward adjustment if the difference

is five to eight levels, and a two-level adjustment if the

difference is zero to four levels. The logic of this is plainly

that as the severity of the less serious group gets closer to

that of the more serious, it becomes appropriate to add, and

to add more, to the combined offense level.

Once the revised PSR was circulated, both sides com-

mented on the probation officer's recommendation, through

memoranda and at the sentencing hearing itself, as provided

by Rule 32(c)(1). McCoy objected to all the enhancements,

including the ones for obstruction of justice. She did not,

however, object to the obstruction enhancement on a ground

that was specific to the perjury group. Application Note 7 of

the Guidelines section governing obstruction, U.S.S.G.

s 3C1.1, explains that for a limited number of crimes, includ-

ing perjury but not false statements, the obstruction bump

should not be added unless "a significant further obstruction

occurred during the ... prosecution ... of the obstruction

offense [here perjury] itself." Victory on a potential Applica-

tion Note 7 argument would have been useful if but only if

other sentencing adjustments had occurred yielding a particu-

lar alignment of the two groups (as a practical matter, a gap

of three or four levels, as opposed to the initial gap of six).

The district court rejected all of McCoy's objections and

sentenced her to concurrent terms of 37 months on the false

statement charges and 24 months on the perjury charge.

McCoy appealed her conviction, objecting to all the en-

hancements, see United States v. McCoy, 242 F.3d 399, 403

(D.C. Cir. 2001) ("McCoy I"), but again not raising the

perjury-specific attack on the obstruction enhancement. Ab-

sent a change in the constellation of groups, lopping a couple

of levels off the perjury calculation was of no moment. As it

turned out, she did prevail on one enhancement, persuading

us that the district court might well have applied an incorrect

standard in assessing the "managerial role" bump. Id. at

410. Accordingly we remanded to the district court to recon-

sider that issue. Id. at 411.

On remand, the district court instructed the probation

officer to update the PSR in light of McCoy I, and the

probation officer read that decision as holding that no mana-

gerial role enhancement should apply. The government ac-

quiesced in the elimination of that enhancement, and the

probation officer prepared an updated version of the PSR

(the "resentencing PSR") that reduced to 18 the sentencing

level for the false statement offense. But now the gap

between the more serious and the less serious groups was

four points instead of six, so the proper multi-group adjust-

ment was two points instead of one. Absent further changes,

the combined offense level would be 20.

When the probation officer circulated the resentencing

PSR reflecting the elimination of the managerial role bump

and the higher multi-group adjustment, McCoy raised her

perjury-specific attack on the obstruction enhancement. Vic-

tory on this issue would now be determinative. Overturning

that enhancement would restore a six-point gap, causing the

overall offense level to settle at 19 points. The government

does not deny that within the resentencing procedure

McCoy's claim was timely and in compliance with Rule 32.

The government objected, however, on the ground that

McCoy had not raised the point in her first appeal. McCoy

responded that at the time of that appeal, victory on the

perjury-specific issue would have had no direct consequence.

The district court did not address either of these arguments,

but ruled simply that "the only issue presently before the

court" was to "resentence without the two-level [managerial

role] enhancement."

On McCoy's second appeal the major issue was how to

apply our precedent, United States v. Whren, 111 F.3d 956

(D.C. Cir. 1997), to these facts. There we had said that on a

remand for resentencing the district court "may consider only

such new arguments or new facts as are made newly relevant

by the court of appeals' decision--whether by the reasoning

or by the result." Id. At 960. The panel divided over the

question whether an argument that in the first sentencing

had been potentially relevant, but never immediately so,

qualified as "newly relevant." See United States v. McCoy,

280 F.3d 1058, 1062 (D.C. Cir. 2002) ("McCoy II"). We

granted McCoy's petition for rehearing en banc to clarify the

court's position on that issue.

* * *

Before turning to the merits we note that the government

objected to rehearing en banc on the ground that McCoy's

completion of her prison sentence had mooted the issue. But

the controlling statutes explicitly make the Guidelines compu-

tation relevant to McCoy's supervised release, which persists

to this day:

Factors To Be Considered In Including a Term Of

Supervised Release. The court, in determining whether

to include a term of supervised release, and, if a term of

supervised release is to be included, in determining the

length of the term and the conditions of supervised

release, shall consider the factors set forth in section

3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and

(a)(6).

18 U.S.C. s 3583(c) (emphasis added). The most obviously

relevant cross-referenced section is s 3553(a)(4)(A), which

refers to "the applicable category of offense committed by the

applicable category of defendant as set forth in the guidelines

issued by the Sentencing Commission...." Id.

s 3553(a)(4)(A). Resentencing under a revised Guidelines

computation clearly could benefit McCoy.

* * *

The government argues that McCoy should be barred by

her failure to raise the Application Note 7 argument on her

initial appeal. But Whren was clearly directed to the defen-

dant's failure to raise an issue "at the original sentencing

hearing," 111 F.3d at 959, not omission from a prior appeal.

We see no basis for finding waiver from failure to raise before

the appeals court an issue on which the district court never

ruled and which never became determinative before the dis-

trict court. Such a rule would require appellants to include a

wide range of purely contingent arguments. Since appeals

are only rarely successful--in this circuit, only 12.9% of all

appeals result in a reversal of the district court, and national-

ly, this figure falls to 9.5%, see Judicial Business of the U.S.

Courts 102 tbl. B-5 (2000)--the resulting clutter of appellate

briefs would be considerable. Although not treating an omis-

sion as a waiver will occasionally cause the court to hear an

otherwise unnecessary successive appeal, the gain in simplifi-

cation of initial appeals seems to us well worth it.

Turning to the issue of the initial sentencing itself, the

government argues that under Rule 32 of the Federal Rules

of Criminal Procedure McCoy's failure to raise the Applica-

tion Note 7 argument there operated as an effective waiver of

that argument. Although the government didn't raise Rule

32 earlier, the Whren test must be understood in light of that

rule, and both parties have articulated their views of the

Rule's role. We therefore take it into account in resolving

the case.

The government specifically invokes Rule 32(b)(6)(B), but

this is plainly wrong. At that stage the defendant had before

her only the original PSR, which did not propose any bump

for obstruction at all. Rule 32(b)(6)(B) only requires a party

to "communicate ... any objections to ... sentencing classifi-

cations ... contained in or omitted from the presentence

report," not objections to adverse classifications as yet un-

mentioned.

But defendant still had an opportunity to raise her present

objection to the obstruction bump. Rule 32(c)(1) (renumber-

ed as Rule 32(i)) requires the district court to give the parties

"an opportunity to comment on the probation officer's deter-

minations and on other matters relating to the appropriate

sentence." In fact McCoy exercised this opportunity as to

many objections--between the filing of the revised PSR on

January 22, 2000 and the actual sentencing on June 3, 2000.

Rule 32(c)(1)'s language, quoted above, provides a broad

opportunity to comment, and we think McCoy's perjury-

specific contention clearly qualified. It had the potential to

affect her sentence. And we note that Rule 32(c)(1) antici-

pates that objections not immediately affecting the sentence

will be made, for its third sentence instructs the district court

that it must, "[f]or each matter controverted ... make either

a finding on the allegation or a determination that no finding

is necessary because the controverted matter will not be

taken into account in, or will not affect, sentencing." Id.

But McCoy's failure to raise the claim in time for the

sentencing hearing does not necessarily mean that she has

lost the point forever. Rule 32(b)(6)(D) (renumbered as Rule

32(i)(1)(D)) provides that "[f]or good cause shown, the court

may allow a new objection to be raised at any time before

imposing sentence." Although this subsection's location as a

part of Rule 32(b)(6) might suggest that it refers only to

points that parties failed to make at the Rule 32(b)(6)(B)

opportunity, both common sense and the language "at any

time" indicate a broader coverage.

To be sure, it may be fairly uncommon for an omission at

the Rule 32(c)(1) stage to be even susceptible to the possibili-

ty of relief under the "good cause" standard of Rule

32(b)(6)(D). Typically the next stage after that opportunity

will be appeal, in which a party's previously omitted claims

will be governed by the plain error standard. But it is easy

to imagine a case where the opportunity provided by Rule

32(c)(1) involves multiple stages, e.g., a briefing schedule that

follows the usual court of appeals pattern (opening-response-

reply). And here, of course, a resentencing follows the

defendant's neglect of her Rule 32(c)(1) opportunity. We see

no reason why omissions occurring at the Rule 32(c)(1) stage

should be governed by a standard more severe than good

cause, unless of course there is some affirmative reason for a

more demanding standard. Compare, e.g., Johnson v. Unit-

ed States, 520 U.S. 461 (1997) (applying plain error standard

on appeal in reviewing a determination of the trial court to

which defendant did not object, but which was declared

erroneous between trial and appeal); United States v. Dale,

140 F.3d 1054, 1056 (D.C. Cir. 1998) ("cause and prejudice"

standard governs an argument raised for the first time on

collateral review and based on a rule adopted after the

conclusion of the direct appeal).

Thus a proper application of Rule 32 required the district

court in resentencing to decide whether McCoy's failure to

raise her Application Note 7 argument was "for good cause

shown." We need not address how that standard would have

applied if the issue had arisen in the initial sentencing, i.e., if

the district court had initially accepted defendant's position

on the managerial role bump. We confine ourselves to the

good cause issue as it arose at resentencing.

Although the phrase "good cause" might suggest that the

inquiry concerns only the grounds for the defaulting party's

omission, in practice "good cause" inquiries typically range

more broadly, addressing (for instance) adverse effects--

direct or systemic--on opposing parties or the judiciary. See

United States v. Cray, 47 F.3d 1203, 1206-07 (D.C. Cir. 1995)

(holding that the inquiry for the withdrawal of a guilty plea,

characterized as an issue of "good cause," includes consider-

ation of "whether the Government would have been substan-

tially prejudiced"); cf. Yesudian ex rel. United States v.

Howard Univ., 270 F.3d 969, 971 (D.C. Cir. 2001) (assessment

of "excusable neglect" takes into account the "potential im-

pact on judicial proceedings"). In the present context, at

least the following factors--many pressed by the parties,

though to be sure primarily as arguments in the interpreta-

tion of Whren--would seem relevant to the court's exercise of

discretion:

Against a finding of good cause: (1) To the extent that

resolution of the contention required the district court to

conduct any factual analysis, as McCoy claims, loss of the

benefit of the district court's fresh recollection of the trial

would be relevant. (2) If the defendant withheld the claim

for strategic reasons (as the government claims, offering in

support only a possible contradiction between the Application

Note 7 argument and McCoy's sufficiency argument against

both obstruction bumps), it would count against finding good

cause.

In favor of a finding of good cause: (1) As the initial

sentencing played out, the Application Note 7 claim would not

have been determinative at any time in that sentencing. (2)

The claim was doubly contingent, in that it would have been

moot if defendant had won all her stated points in the initial

sentencing and under several varieties of partial victory (e.g.,

if the court had ruled in her favor on the evidentiary basis of

the obstruction bump, or, indeed, any partial victory except

those which left the gap between the offense levels at three or

four). (3) Addressing the claim on the merits will have no

material effect on any party's future incentives, as only a

small fraction of judgments are reversed on appeal, and

parties thus have strong incentives to raise their sentencing

objections early. (4) A person's liberty is at stake.

Factors that could work against the admission of the new

objection, but are absent here: (1) Requirements of additional

fact-finding. The issue here required no new fact-finding, as

it turned on the legal analysis of what constitutes a "signifi-

cant further obstruction," and, in defendant's view, on a

comparison of the offense conduct with defendant's testimony

at trial. (2) Disruption of proceedings. In the scenario in

which it arose, consideration of the Application Note 7 argu-

ment would not have interrupted any proceeding in the

slightest. (3) Prejudice. Its consideration on resentencing

would not have prejudiced the government in any way.

A requirement that the district court consider such factors

as these in applying Rule 32(b)(6)(D) does nothing to disturb

Whren's principle that parties should raise at sentencing the

objections that they have "reason" to raise. Whren, 111

F. 3d at 960. But incentives to raise an issue have different

strengths, and nothing in Whren suggests that parties must

be considered to have "reason" to raise a doubly contingent

objection for which the likelihood of any significance is re-

mote. Since an absolute requirement to raise all objections

(regardless of the degree of relevance) is likely both to waste

judicial resources and work injustice, we have no basis for

imposing such a rule, and indeed are barred from doing so

under Rule 32(b)(6)(D) as we understand it.

In this case, we think it clear that a district court finding of

good cause would not have been an abuse of discretion. We

need not in the end decide whether the opposite, a finding of

no good cause, would have been an abuse of discretion. The

Application Note 7 claim has already been presented to the

panel in McCoy II, and, if it should lack merit, there will be

no need either for an initial good cause ruling by the district

court or any review for abuse of discretion. Given the very

high probabilities (cited above) that a substantive claim will

not prevail, passing that issue back to the panel is likely to

consume fewer judicial resources than would a remand to the

district court. Accordingly we remand the case to the panel

for further proceedings consistent with this opinion.

We understand that district judges' individual experience

may incline them to different preferences as between a high

degree of assurance that even contingent issues are raised

early (at the expense of more time spent either resolving

them or at least recognizing that the contingency has not

materialized) and a low of degree of assurance (with a higher

risk of interruptions for late-raised issues and of successive

hearings for a single defendant). District judges may adopt

standing orders to guide practitioners. See Fed. R. Crim. P.

57(b) (allowing judges to "regulate practice in any manner

consistent with federal law, these rules, and the local rules of

the district").

We note in closing that even an unexcused failure to raise a

claim at sentencing would not automatically bar its consider-

ation on appeal. As we said in Whren, such a claim is still

subject to review for plain error. 111 F.3d at 960. More-

over, because the impact of a sentencing error tends to be

more obvious than that of the typical trial error, and the

consequences of a reversal and remand less disruptive, the

finding of "prejudice" necessary for plain error review is

more readily made. See, e.g., United States v. Saro, 24 F.3d

283, 287-88 (D.C. Cir. 1994).

The case is remanded to the panel.

So ordered.

Karen LeCraft Henderson, Circuit Judge, with whom

Ginsburg, Chief Judge, and Sentelle, Circuit Judge, join,

dissenting:

Under what circumstances may a defendant raise at resen-

tencing an objection that he failed to raise at his original

sentencing? Until today, our decision in United States v.

Whren, 111 F.3d 956 (D.C. Cir. 1997), cert. denied, 522 U.S.

1119 (1998), provided a relatively straightforward and sensi-

ble answer to the district judges of this circuit:

[U]pon a resentencing occasioned by a remand, unless

the court of appeals expressly directs otherwise, the

district court may consider only such new arguments or

new facts as are made newly relevant by the court of

appeals' decision--whether by the reasoning or by the

result.

Whren, 111 F.3d at 960. At best, the majority opinion

misunderstands and misapplies this rule. At worst, the court

has jettisoned Whren sub silentio. Accordingly, and for the

reasons set forth below, I respectfully dissent.

* * *

Before a three-judge panel of this court, the appellant,

JoAnn McCoy, sought remand and reconsideration of the

district court's May 9, 2001 judgment resentencing her to 33

months in prison and five years of supervised release. See

generally United States v. McCoy, 280 F.3d 1058 (D.C. Cir.

2002) (McCoy II). She contended that the district court

erred in refusing to consider her objection--made under

Application Note 7 of U.S.S.G. s 3C1.1--to the obstruction-

of-justice enhancement added to her perjury offense level.

Although McCoy acknowledged that she did not raise the

Note 7 objection at her original sentencing, she argued that

the court's remand for resentencing in United States v.

McCoy, 242 F.3d 399 (D.C. Cir.) (McCoy I), cert. denied, 122

S. Ct. 166 (2001), made the objection "newly relevant." On

February 22, 2002 a divided panel rejected McCoy's conten-

tion, holding that she had waived her Note 7 objection by

failing to raise it at her original sentencing. On June 12 the

full court granted McCoy's petition for rehearing en banc and

vacated the panel's judgment. Today the majority (1) holds

that "a proper application of Rule 32 required the district

court in resentencing to decide whether McCoy's failure to

raise her Application Note 7 argument was 'for good cause

shown,' " maj. op. at 8 (quoting Fed. R. Crim. P. 32(b)(6)(D));

and (2) intimates that McCoy's failure to raise the objection

at her original sentencing was for good cause, see id. at 8-10.

The court errs on both counts.

I.

I do not believe that Rule 32(b)(6)(D) required the district

court at resentencing to decide whether McCoy failed "[f]or

good cause shown" to raise the Note 7 objection at her

original sentencing. Rule 32(a) provides that "[w]hen a

presentence investigation and report are made ... [the]

sentence should be imposed without unnecessary delay follow-

ing completion of the process prescribed by subdivision

(b)(6)." Fed. R. Crim. P. 32(a). In turn, the process pre-

scribed by subdivision (b)(6) requires, first, that the probation

officer furnish the presentence report to the defendant, the

defendant's counsel and the government's counsel. See Fed.

R. Crim. P. 32(b)(6)(A). Next, "[w]ithin 14 days after receiv-

ing the presentence report," the parties are to "communicate

in writing to the probation officer, and to each other," any

objection they have to any of the "sentencing classifications

[or] sentencing guideline ranges ... contained in or omitted

from the presentence report." Fed. R. Crim. P. 32(b)(6)(B).

Not later than seven days before the sentencing hearing, the

probation officer must furnish to the district court and to the

parties the revised presentence report and an addendum

setting forth unresolved sentencing objections. See Fed. R.

Crim. P. 32(b)(6)(C). Finally, pursuant to the provision upon

which the majority places so much weight:

Except for any unresolved objection under subdivision

(b)(6)(B), the court may, at the hearing, accept the

presentence report as its findings of fact. For good

cause shown, the court may allow a new objection to be

raised at any time before imposing sentence.

Fed. R. Crim. P. 32(b)(6)(D).

Rending a few phrases from the broader context of this

scheme, see maj. op. at 7-8, the majority tortures the Rule

until it confesses. When Rule 32 is read as a whole, see

United Savings Ass'n v. Timbers of Inwood Forest Associ-

ates, 484 U.S. 365, 371 (1988) ("Statutory construction ... is a

holistic endeavor."), Rule 32(b)(6)(D) is construed more plau-

sibly another way. By requiring "completion of the process

prescribed by subdivision (b)(6)" "[w]hen a presentence ...

report [is] made under subdivision (b)(1)," the Rule on its face

contemplates that where, as here, a presentence report is

made at resentencing--the intial report at resentencing being

just as much a "presentence ... report" as the initial report

at the original sentencing--the parties will participate in a

"process" separate from (and no doubt shorter than) the one

undertaken at the original sentencing proceeding. Fed. R.

Crim. P. 32(a) ("The time limits prescribed in subdivision

(b)(6) may be either shortened or lengthened for good

cause."). Rule 32(b)(6)(D)'s inclusion as part of the integrat-

ed (b)(6) procedure manifests that the reference to "a new

objection" includes only those objections unavailable at the

Rule 32(b)(6)(B) stage of any one sentencing. See Fed. R.

Crim. P. 32(b)(6)(B); see also infra note 1. Thus, I do not

read the Rule's "new objection" language to permit a defen-

dant to "revive in the second round an issue he allowed to die

in the first." Whren, 111 F.3d at 960.

Nothing in the Rule precludes the interpretation I urge.

Only one other circuit, the Tenth, adopts the majority's

contrary construction. See United States v. Moore, 83 F.3d

1231, 1235 (10th Cir. 1996) (holding, in section 2255 context,

that district court's refusal to conduct de novo resentencing

"was potentially in conflict with the ability of the parties to

move to raise new issues with respect to the presentence

report at any time prior to the imposition of sentence" where

they have "good cause" to do so (citing Fed. R. Crim. P.

32(b)(6)(B))). The Tenth Circuit, of course, adheres to the de

novo resentencing approach, see United States v. Smith, 930

F.2d 1450, 1456 (10th Cir.) ("fully de novo resentencing is

entirely appropriate" (quotations omitted)), cert. denied, 502

U.S. 879 (1991), an approach we explicitly and wisely rejected

in Whren:

De novo resentencing is in essence a license for the

parties to introduce issues, arguments, and evidence that

they should have introduced at the original sentencing

hearing. The alternative of requiring the parties to raise

all relevant issues at the original sentencing hearing

serves both equity and efficiency: Each party gets early

notice of the other's position, and the district court can

resolve all material issues early on--when the record is

fresh in mind--and in a single proceeding, thereby mini-

mizing the scope of any second proceeding, i.e., should

the first result in a remand.

Whren, 111 F.3d at 959-60. I am baffled by the court's

willingness to adopt an interpretation of Rule 32(b)(6)(D) that

(1) sanctions the wasteful de novo resentencing described

above; (2) effectively overturns Whren, which the majority

does not even attempt to harmonize with the Rule; (3) was

urged by neither party,1 see infra Part II.A; (4) is not the

__________

1 Although the parties expressed in their en banc briefs "views of

the Rule's role," maj. op. at 7, neither even remotely suggested the

role the court propounds. See Supp. Br. of Appellee at 2, 5, 7, 9

n.4; Supp. Reply Br. of Appellant at 2-5. Indeed, McCoy herself

argued that the "good cause" language of Rule 32(b)(6)(D) "applies

most natural reading of the Rule; and (5) cuts against the

case law of the other "waiver" circuits, which do not even

mention the Rule under similar circumstances, much less hold

that it has the broad application the majority suggests. See

United States v. Ticchiarelli, 171 F.3d 24, 32 (1st Cir.)

(adopting Whren's waiver approach without mentioning Rule

32), cert. denied, 528 U.S. 850 (1999); United States v.

Marmolejo, 139 F.3d 528, 530-31 (5th Cir.) (same), cert.

denied, 525 U.S. 1056 (1998); United States v. Parker, 101

F.3d 527, 528 (7th Cir. 1996) (adopting waiver approach

similar to that of Whren without mentioning Rule 32).

I take issue as well with the majority's suggestion that the

language of Rule 32(c)(1) supports permitting McCoy to raise

her Note 7 objection at resentencing. See maj. op. at 7

("Rule 32(c)(1)'s language ... provides a broad opportunity to

comment, and we think McCoy's perjury-specific contention

clearly qualified."). Rule 32(c)(1) provides that

[a]t the sentencing hearing, the court must afford counsel

for the defendant and for the Government an opportunity

to comment on the probation officer's determinations and

on other matters relating to the appropriate sentence,

and must rule on any unresolved objections to the pre-

sentence report.... For each matter controverted, the

court must make either a finding on the allegation or a

determination that no finding is necessary because the

controverted matter will not be taken into account in, or

will not affect, sentencing.

Fed. R. Crim. P. 32(c)(1) (emphasis added). The court's

apparently sweeping view of a party's "opportunity to com-

ment on ... other matters relating to the appropriate sen-

tence," maj. op. at 7 (quoting Fed. R. Crim. P. 32(c)(1)), would

permit at resentencing an objection that at the original

sentencing would not have "immediately affect[ed]" a defen-

dant's combined offense level. Id. But that interpretation

seriously misreads the Rule in its entirety. Rule 32(c)(1)'s

reference to "other matters relating to the appropriate sen-

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only to objections that should have been made earlier under Fed. R.

Crim. P. 32(b)(6)(B)." Supp. Reply Br. of Appellant at 4.

tence" does not include McCoy's belated Note 7 objection,

which constitutes instead a "comment on the probation offi-

cer's [previous obstruction-of-justice] determinations." Fed.

R. Crim. P. 32(c)(1). By operation of text and under any

reasonable reading of Rule 32 as a whole, "other matters

relating to the sentence" do not include "comment[s] on the

probation officer's determinations." Id. (emphasis added);

see Webster's Third New International Dictionary, Una-

bridged 1599 (1981) ("other" means "not being the one ...

first mentioned or of primary concern" (emphasis added));

see also United States v. Chung, 261 F.3d 536, 539 (5th Cir.

2001) ("Rule 32(b)(6)(B)'s deadline ... would be meaningless

if the district court were obliged to entertain new objections

at the sentencing hearing" pursuant to Rule 32(c)(1)). In-

deed, the cases that mention "other matters relating to the

appropriate sentence" include "matters" such as a district

court's sua sponte upward (or downward) departure, its impo-

sition of a special condition of supervised release or any other

condition of sentencing "not expressly contemplated by the

[G]uidelines." E.g., United States v. Angle, 234 F.3d 326, 347

(7th Cir. 2000), cert. denied, 533 U.S. 932 (2001); see also, e.g.,

United States v. Hernandez, 251 F.3d 1247, 1250-52 (9th

Cir.), reh'g denied, 280 F.3d 1216 (9th Cir. 2001); United

States v. Queensborough, 227 F.3d 149, 153-55 (3d Cir. 2000),

cert. denied, 531 U.S. 1131 (2001); United States v. Pank-

hurst, 118 F.3d 345, 357 (5th Cir.), cert. denied, 522 U.S. 1030

(1997); United States v. Edgin, 92 F.3d 1044, 1048-49 (10th

Cir. 1996), cert. denied, 519 U.S. 1069 (1997).

The United States Supreme Court has observed that, in

conjunction with the integrated process set forth in Rule

32(b)(6), Rule 32(c)(1) was designed to "promot[e] focused,

adversarial resolution of the legal and factual issues relevant

to fixing Guidelines sentences." Burns v. United States, 501

U.S. 129, 137 (1991). Whren dovetails with a proper reading

of the Rule by requiring the parties to "raise all relevant

issues at the original sentencing hearing," thereby ensuring

that "[e]ach party gets early notice of the other's position [so

that] the district court can resolve all material issues early on

[and] when the record is fresh in mind." Whren, 111 F.3d at

959-60. I acknowledge that Rule 32, Burns and Whren

direct the parties to raise only "relevant" or "material" issues

at the original sentencing--so that they do not waste the

district court's time--but I also recognize (as the majority

does not) that McCoy's Note 7 objection was "relevant" under

circuit precedent. See infra Part II.B.

II.

Even if I were to accept the proposition that Rule

32(b)(6)(D) required the district court at resentencing to

decide whether McCoy failed "for good cause shown" to raise

the Note 7 objection at her original sentencing, I could not

agree with the result reached today because (1) neither the

government nor the defendant relied on the Rule at the panel

stage and neither has urged (at any stage) the interpretation

the majority adopts and applies retroactively; and (2) in any

event, Whren holds by necessary implication that in this

circuit a defendant cannot show "good cause" to raise a "new

objection" at resentencing under Rule 32(b)(6)(D) if he had

incentive to raise the objection earlier.

A.

The court's focus on Rule 32 at the en banc stage is

surprising. Our en banc briefing order directed the parties

"to address in their briefs only the issue of whether the

exception established in United States v. Whren, 111 F.3d 956

(D.C. Cir. 1997), for arguments 'made newly relevant by the

court of appeals' decision--whether by the reasoning or by

the result,' id. at 960, applies to this case." Br. Order.

Although the parties discussed Rule 32 in their supplemental

briefs, neither party described any interplay of the Rule with

Whren. Accordingly, we have been deprived of meaningful

assistance from either the government or the federal public

defender on the matter. In her en banc brief, McCoy did not

submit that Rule 32(b)(6)(D) would have permitted her to

raise her Note 7 objection at resentencing, see supra note 1;

instead she claimed that Whren did not preclude her from

doing so. She did claim that at her original sentencing "the

Note 7 issue was not 'material.' " See Supp. Reply Br. of

Appellant at 3. But that simply brings us back to Whren,

under which we must decide whether the Note 7 objection

became "newly relevant" (i.e., newly "material") after our

remand in McCoy I. I would hold that it did not. See infra

Part II.B.

I am also surprised by the court's willingness to include an

advisory opinion guiding a district court's good cause determi-

nation, see maj. op. at 9-10; the majority's list of possible

good cause factors is unnecessary to deciding the question

before us. Even more disturbing, the court--while conceding

that the question of good cause is within the district judge's

discretion in the first instance--"think[s] it clear that a

district court finding of good cause would not have been an

abuse of discretion." Id. at 10. I am at a loss; how can this

proposition be clear when the parties have had no chance to

test it in an adversarial context, whether before the district

court, the panel or the en banc court?

B.

The court observes that "the Whren test must be under-

stood in light of [Rule 32]," maj. op. at 7, but fails to

acknowledge the converse: the Rule must be understood in

light of the Whren test. Whren holds that

[a] defendant should not be held to have waived an issue

if he did not have a reason to raise it at his original

sentencing; but neither should a defendant be able to

raise an issue for the first time upon resentencing if he

did have reason but failed nonetheless to raise it in the

earlier proceeding.

Whren, 111 F.3d at 960 (emphasis added). The majority's

repeated references to the Note 7 objection as "a contention

that was contingently relevant in the initial sentencing," maj.

op. at 2 (emphasis in original); see also id. at 5 ("potentially

relevant"), 6 ("purely contingent"), 9, 10 ("doubly contin-

gent"), reveal its profound misunderstanding of the Whren

rule. It should be clear by now that Whren defines relevance

(or materiality) in terms of incentive, not of potentiality,

imminence or certainty of effect. In this circuit, there is no

such thing as a "contingently relevant" contention, much less

a "doubly contingent" one; a defendant either has incentive

at the initial sentencing to raise his objection or he does not.

Following Whren jot-for-jot in Ticchiarelli, the First Circuit

recognized this explicitly:

Whether there is a waiver depends not ... on counting

the number of missed opportunities (hearings, motions,

etc.) to raise an issue, but on whether the party had

sufficient incentive to raise the issue in prior proceed-

ings. See United States v. de la Cruz-Paulino, 61 F.3d

986, 994 n.5 (1st Cir. 1995) (noting, in the context of Fed.

R. Crim. P. 12, that "government violations of Rule

12(d)(2) should excuse a defendant's failure to move to

suppress evidence prior to trial ... since defendants

have no incentive to move to suppress evidence that the

government will not be introducing"); see also Whren,

111 F.3d at 960. This approach requires a fact-intensive,

case-by-case analysis.

Ticchiarelli, 171 F.3d at 32-33; see also United States v.

Hass, 199 F.3d 749, 753 (5th Cir. 1999) ("[W]hether a defen-

dant waived an issue for consideration at resentencing is

determined by whether the defendant had an incentive to

raise that issue in the prior proceedings."), cert. denied, 531

U.S. 812 (2000). On the facts of Ticchiarelli, the court found

that the defendant had not waived his resentencing objection

by failing to raise it at his original sentencing because, by the

time of that sentencing, "the district court had already issued

a final ruling, memorialized in a published order" rejecting

the argument. Ticchiarelli, 171 F.3d at 33. Ticchiarelli

plainly lacked incentive to raise the objection at his sentenc-

ing; acknowledging that fact, the court stated that its "waiver

doctrine does not require that a defendant, in order to

preserve his rights on appeal, raise every objection that

might have been relevant if the district court had not already

rejected the defendant's arguments." Id. (emphasis altered);

see also United States v. Rhodes, 145 F.3d 1375, 1378 (D.C.

Cir. 1998) (permitting defendant to raise rehabilitation issue

at resentencing where he "could not have argued at initial

sentencing for a departure based upon post-sentence rehabili-

tative efforts since these efforts had not yet taken place"

(internal quotation and alteration omitted)).

By contrast to Ticchiarelli's new objection, McCoy's Note 7

argument was not rejected by the district court before the

original sentencing. Because she had no idea how the court

was going to rule on any (much less all) of her sentencing

challenges, McCoy had incentive to raise at the outset all

objections she had to the revised presentence report to

ensure that she received the lowest possible Guidelines range.

In other words, McCoy had just as much incentive at sentenc-

ing as at resentencing to keep the gap in her offense levels at

six, thereby minimizing the effect of the multi-group adjust-

ment mandated by U.S.S.G. s 3D1.4. See McCoy II, 280

F.3d at 1063-64 ("Had she persuaded the sentencing judge

[about one of her sentencing challenges] (as, we presume, was

her purpose), McCoy's 'controlling' false statement offenses

level would have been reduced to 18, bringing it within four

points of her perjury offense level and increasing the multi-

group adjustment by one for a combined offense level of 20.");

maj. op. at 2-5 (explaining section 3D1.4's application to this

case). Had she raised the Note 7 claim at her original

sentencing, she would have preserved the objection and avert-

ed the ensuing dispute.

* * *

Today's decision does the district court no favor. Abandon-

ing Whren's bright-line waiver rule, the court (in dicta)

replaces it with a non-exhaustive set of amorphous "McCoy

factors"2 that will inundate district judges with "good cause"

claims at resentencing. Many of those claims are bound to be

as meritless as the one now before us; even if the district

court is able to dismiss them out of hand, the time spent

__________

2 One of the court's factors in favor of finding good cause--"[a]

person's liberty is at stake," maj. op. at 10--is irrelevant. A

person's liberty is always at stake at sentencing. (That is the point,

after all.) The makeweight "liberty factor" does not assist a

sentencing judge to distinguish one new objection from the next.

And although one of the majority's factors against a finding of

good cause--"[i]f the defendant withheld the claim for strategic

reasons," id. at 9--makes substantive sense, the court cavalierly

dismisses the notion that the factor is met here. It seems to me

that McCoy chose for tactical reasons not to raise the Note 7

objection when she was originally sentenced. She did initially

challenge the obstruction-of-justice enhancement on double jeopar-

dy grounds. She argued that because she had been "convicted of

perjury for statements that she made during a bankruptcy proceed-

ing," and because she had made "precisely the same statement"

during her criminal trial, "[t]o convict her of perjury and then to

enhance her sentence on essentially the same conduct is unconstitu-

tional [under] the Double Jeopardy Clause of the Constitution."

McCoy's Supp. Sentencing Mem. at 5 (quoted in McCoy I, 242 F.3d

at 408). On appeal in McCoy I, however, she took the opposite

position; she challenged the enhancement on sufficiency-of-the-

evidence grounds and contended that the two statements were

different. See McCoy I, 242 F.3d at 408 ("McCoy argues ... that

her testimony was not the same in both proceedings...." (emphasis

added)). In McCoy II, she asserts once again that she repeated

"precisely the same statements" at her criminal trial that she made

during the bankruptcy proceeding and that repeated perjury does

not constitute a "significant further obstruction" under Note 7. Br.

of Appellant at 19. Accordingly, even if Whren did not leave

McCoy without "good cause" to raise her new objection at resen-

tencing, the tactics of her counsel would.

The court's failure to include as one of its McCoy factors the

defendant's incentive to raise an objection at his original sentencing,

see maj. op. at 9-10, seems to confirm that, after today, Whren is

nothing more than "a derelict on the waters of the law." Lambert

v. California, 355 U.S. 225, 232 (1957) (Frankfurter, J., dissenting).

considering them will be ill spent.3

So begins the era of de novo resentencing in the D.C.

Circuit. Although some other circuits may be satisfied with

the choice, I thought we had made a better decision. I

respectfully dissent from the remand and would affirm the

district court's May 9, 2001 resentencing judgment.

__________

3 The majority observes that "[d]istrict judges may adopt stand-

ing orders to guide practitioners" pursuant to Fed. R. Crim. P. 57(b).

Maj. op. at 11. I, for one, would recommend they re-adopt Whren.