United States v. Joseph Mudekunye

Case: 09-10968 Document: 00511536314 Page: 1 Date Filed: 07/11/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 11, 2011

No. 09-10968 Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JOSEPH MUDEKUNYE; FABIAN MUYABA

Defendants - Appellants

Appeal from the United States District Court

for the Northern District of Texas

Before BARKSDALE, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:

Fabian Muyaba, Joseph Mudekunye, and three co-defendants were

charged in a 39-count indictment stemming from their tax-fraud conspiracy.

Muyaba, Mudekunye, and one co-defendant were convicted in a joint jury trial.

Muyaba challenges the sufficiency of the evidence to support his convictions; the

district court’s applying two Sentencing Guideline enhancements; and its

ordering part of his sentence to run consecutively. Mudekunye challenges its

failure to sever his trial from Muyaba’s; and his sentence as being procedurally

unreasonable. We AFFIRM in part and VACATE and REMAND in part.

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I.

From 2004 to 2007, Mudekunye and Muyaba worked as tax preparers at

Reliable Tax Services in Dallas, Texas, where they participated in a conspiracy

to file fraudulent tax returns. In 2007, Muyaba began operating Efficient Tax

Service, where he and Mudekunye prepared tax returns in a similar, fraudulent

manner.

At both Reliable and Efficient, Mudekunye and Muyaba falsified tax

returns in several ways, inter alia: changing their clients’ filing status (“single”

to “head of household”); and claiming losses for non-existent businesses. Upon

receiving their tax refunds, the clients were charged sizeable and misleading

fees.

To avoid IRS detection, Reliable submitted returns using a different

Electronic Filer Identification Number each year. Defendants also hid their

fraudulent operations by denying their clients copies of their returns, despite

repeated requests. Consequently, until they were contacted by the IRS, many

clients were unaware their tax returns contained false information.

Following a Government investigation, Mudekunye, Muyaba, and three

co-defendants were charged in the 39-count indictment. All were charged with

conspiracy to prepare fraudulent tax returns, in violation of 18 U.S.C. § 371.

Mudekunye and Muyaba were each charged with multiple counts of: aiding and

assisting in the preparation of fraudulent tax returns, in violation of 26 U.S.C.

§ 7206(2); aiding and abetting, in violation of 18 U.S.C. § 2 and 26 U.S.C.

§ 7206(2); and identity theft, in violation of 18 U.S.C. § 1028(a)(7) and (c)(3)(A).

At the conclusion of the Government’s case-in-chief, Muyaba’s motion for

judgment of acquittal was granted for three counts. A jury found Muyaba guilty

on seven of ten counts; Mudekunye, six of 12.

Muyaba was sentenced, inter alia, to 120 months’ imprisonment: 60 on

count 1 (conspiracy); a consecutive 24 on count 33 (preparation of fraudulent tax

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forms); and 36 each on counts 27-28 and 30-32 (same offense), to run

concurrently with each other, but consecutive to the sentences for counts 1 and

33. Mudekunye received, inter alia, 97 months’ imprisonment: 60 on count 1

(conspiracy); 36 on counts 7, 9, and 25 (preparation of fraudulent tax forms); and

97 on counts 35-36 (identity theft), to run concurrently.

II.

Muyaba’s, then Mudekunye’s, claims are addressed. Analysis of one or

more claims for each is restricted because their review is only for plain error.

A.

Muyaba presents two challenges to his convictions; four, to his sentence.

Each fails.

1.

Muyaba preserved his sufficiency challenge by moving, pursuant to

Federal Rule of Criminal Procedure 29(a), for judgment of acquittal at the close

of both the Government’s case-in-chief and all the evidence. Accordingly, review

is de novo. E.g., United States v. Simmons, 470 F.3d 1115, 1120 (5th Cir. 2006).

His “verdict will be affirmed if a reasonable trier of fact could conclude from the

evidence that the elements of the offense were established beyond a reasonable

doubt”. Id. (citation and internal quotation marks omitted). All evidence is

viewed, and reasonable inferences drawn, in the light most favorable to the

verdict; “we evaluate neither the weight of the evidence nor the credibility of the

witnesses”. Id. “‘The evidence need not exclude every reasonable hypothesis of

innocence or be wholly inconsistent with every conclusion except that of guilt,

and the jury is free to choose among reasonable constructions of the evidence.’”

United States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999) (quoting United

States v. Burton, 126 F.3d 666, 669-70 (5th Cir. 1997)).

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a.

For his sufficiency challenge to his conspiracy conviction, Muyaba

contends: the evidence did not show he worked at Reliable; and, therefore, the

Government did not establish his involvement in the tax-fraud conspiracy there.

The Government had to prove beyond a reasonable doubt that “defendant either

positively or tacitly agreed with another person to accomplish a common and

unlawful plan, and that during the existence of the conspiracy, one of the

conspirators knowingly committed an overt act in furtherance of the conspiracy”.

United States v. Bourgeois, 950 F.2d 980, 983 (5th Cir. 1992). The agreement

need not be explicit, and “may be inferred from a concert of action”. United

States v. Mann, 161 F.3d 840, 847 (5th Cir. 1998) (citation and internal

quotation marks omitted).

The evidence established that Muyaba worked as a tax preparer at

Reliable; had a cubicle there; was engaged by many clients when they visited it

for tax-filing help; and was one of several of its tax preparers who fraudulently

prepared returns. A rational trier of fact could find, beyond a reasonable doubt,

that Muyaba was part of the conspiracy.

b.

Muyaba also makes a sufficiency challenge to his conviction for aiding and

assisting in the preparation of false and fraudulent tax forms at Reliable. The

Government had to prove, beyond a reasonable doubt, that Muyaba “willfully

aided, assisted, counseled, or advised another in the preparation or presentation

under the internal revenue laws of a document that is fraudulent or false as to

any material matter”. United States v. Clark, 577 F.3d 273, 285 (5th Cir. 2009)

(citation and internal quotation marks omitted).

A reasonable jury could have found Muyaba guilty on those counts.

Evidence established that, while working at Reliable (and Efficient), Muyaba

presented himself as a tax-return preparer; discussed tax returns and refunds

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with his clients; received tax-preparation information from them; and claimed

business losses, credits, and deductions on their returns that were neither

substantiated nor requested.

Muyaba insists some of the trial testimony was “incredible and unworthy

of belief”. As noted, the evidence’s being sufficient does not require the removal

of all doubt, e.g., Anderson, 174 F.3d at 522; and, it is not our role to evaluate

witness credibility—that, of course, is for the jury, Simmons, 470 F.3d at 1120.

Moreover, to the extent Muyaba contends there was a lack of evidence showing

he filed the fraudulent returns, he misstates the elements for violation of 26

U.S.C. § 7206(2): that defendant must file the return is not one of them. See

Clark, 577 F.3d at 285.

2.

In challenging two enhancements to his offense level, Muyaba contends:

the one for leader-or-organizer does not apply to him; and the one for

obstruction-of-justice was applied incorrectly because he did not commit perjury

at trial. The district court’s findings of fact for sentencing are reviewed for clear

error; its application and interpretation of the Guidelines, de novo. United

States v. Creech, 408 F.3d 264, 270 n.2 (5th Cir. 2005). Of course, the leader-or-

organizer and obstruction-of-justice enhancements involve factual findings,

reviewed for clear error; however, “[a] ruling that . . . findings permit an

obstruction-of-justice enhancement is a question of law, reviewed de novo”.

United States v. Miller, 607 F.3d 144, 148 (5th Cir. 2010) (citations and internal

quotation marks omitted). “A factual finding is not clearly erroneous if it is

plausible in light of the record read as a whole.” United States v. Valencia, 44

F.3d 269, 272 (5th Cir. 1995).

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a.

Guideline § 3B1.1(c) provides: “If the defendant was an organizer, leader,

manager, or supervisor in any criminal activity . . . , increase [his offense level]

by 2 levels”. Its commentary states:

To qualify for an adjustment under this section, the

defendant must have been the organizer, leader,

manager, or supervisor of one or more other

participants. An upward departure may be warranted,

however, in the case of a defendant who did not

organize, lead, manage, or supervise another

participant, but who nevertheless exercised

management responsibility over the property, assets, or

activities of a criminal organization.

U.S.S.G. § 3B1.1 cmt. n.2.

The court applied the two-level enhancement based upon finding that

Muyaba “was an organizer and a leader in the Efficient Tax Service”, serving as

its owner, and the employer of at least one other person, Mudekunye. In

contesting this enhancement based upon his role at Efficient, although he is

silent about his work there, Muyaba maintains the district court clearly erred

because “he didn’t play as big a part in Reliable as the others”. The

enhancement was based upon Muyaba’s role at Efficient, not Reliable.

b.

In challenging his obstruction-of-justice enhancement for perjury at trial,

Muyaba maintains: his testimony about Amber Redden was his “belief”, which

is insufficient to be classified as a lie; and evidence of Muyaba’s wife having

removed his office documents following his arrest is insufficient to show he lied

about not having access to his business records. The Guideline provides:

If (A) the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of

justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction, and (B)

the obstructive conduct related to (i) the defendant’s

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offense of conviction and any relevant conduct; or (ii) a

closely related offense, increase the offense level by 2

levels.

U.S.S.G. § 3C1.1. Additionally, “the court should be cognizant that inaccurate

testimony or statements sometimes may result from confusion, mistake, or

faulty memory and, thus, not all inaccurate testimony or statements necessarily

reflect a willful attempt to obstruct justice”. U.S.S.G. § 3C1.1 cmt. n.2; see also

United States v. Greer, 158 F.3d 228, 239 (5th Cir. 1998) (noting courts “must

carefully consider whether the defendant has engaged in [obstructive] behavior

in a conscious and deliberate attempt to obstruct or impede the administration

of justice”).

Muyaba testified he had no access, post-arrest, to documents at Efficient;

however, other evidence showed his testimony was false because his wife had

then retrieved those documents. Additionally, Muyaba testified that he believed

one of his clients, Redden, had employed Muyaba’s brother in Missouri to

complete her return. Redden’s testimony, however, was that she did not know

Muyaba’s brother, and had watched Muyaba complete it.

In addition, there were manifest inconsistencies in other portions of his

testimony. In applying the enhancement, the court adopted the presentence

investigation report’s (PSR) discussion of Muyaba’s inconsistent trial testimony.

For example, he testified he never worked for Reliable, even though, as discussed

supra, significant evidence established that he did. Muyaba also denied

completing and signing fraudulent returns; however, that testimony conflicts

with extensive evidence of fraudulent claims on returns he completed and

signed. The court ruled: the inconsistencies in Muyaba’s testimony were

“material to whether he was guilty . . . of the counts . . . against him, and . . . his

statements on these issues [did] not result from confusion, mistake, or faulty

memory, but [were] instead a willful and deliberate attempt to obstruct justice”.

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3.

Muyaba also contends the district court erred in ordering that his sentence

for count 33 be consecutive to those for counts 27-28 and 30-32. He maintains:

the sentences for each count should have been grouped and ordered to run

concurrently because, under Guideline § 3D1.2, those counts charged him for the

same offense, violations of 26 U.S.C. § 7206(2) that were for “substantially the

same harm”.

Because Muyaba did not so object at sentencing, review is only for plain

error. E.g., United States v. Ronquillo, 508 F.3d 744, 748 (5th Cir. 2007). For

reversible plain error, defendant must show a clear or obvious error that affects

his substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).

If he does so, our court has discretion to correct that error, and generally will do

so only if it seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Id.

a.

The PSR grouped all counts as “Closely Related”, including the six counts

for violations of § 7206(2) (27-28 and 30-33). Because one count of conviction was

for conspiracy to prepare fraudulent tax returns, Muyaba’s offense level was

based on the total amount of tax loss attributed to his offenses. See U.S.S.G.

§§ 2T1.9(a)(1), 2T1.1(a)(1), 2T4.1 (Tax Table). That loss amount, combined with

the enhancements discussed supra, resulted in Muyaba’s having an advisory

Guideline sentencing range of 97-121 months. In challenging his sentence,

Muyaba fails to account for the mandatory requirements of Guideline § 5G1.2,

which provides, inter alia:

If the sentence imposed on the count carrying the

highest statutory maximum is less than the total

punishment, then the sentence imposed on one or more

of the other counts shall run consecutively, but only to

the extent necessary to produce a combined sentence

equal to the total punishment. In all other respects,

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sentences on all counts shall run concurrently, except

to the extent otherwise required by law.

U.S.S.G. § 5G1.2(d) (emphasis added).

For Muyaba, the count carrying the highest statutory maximum sentence

was count 1 (conspiracy to prepare fraudulent tax returns), with a statutory

maximum of 60 months’ imprisonment. Each of the other counts (fraudulent-

tax-return preparation) had a statutory maximum of 36 months. Therefore, if

the court had imposed concurrent sentences for all counts of conviction,

Muyaba’s total sentence would have been 60 months’ imprisonment, well below

his advisory range of 97 to 121 months, and in contravention of Guideline

§ 5G1.2(d).

b.

Muyaba also claims ineffective assistance of counsel (IAC) because: his

counsel did not object at sentencing to the sentence for count 33 being

consecutive (deficient performance); and Muyaba was prejudiced because he

accordingly received 24 additional months of imprisonment. E.g., Strickland v.

Washington, 466 U.S. 668, 687 (1984).

We “resolve [IAC] claims . . . on direct appeal only in rare cases where the

record allow[s] us to evaluate fairly the merits of the claim”. United States v.

Higdon, 832 F.2d 312, 314 (5th Cir.1987). This is one of those instances because

the record is adequately developed. Because, as discussed supra, the

consecutive-sentence claim has no merit, the requisite deficient performance

does not exist.

B.

Mudekunye claims: his trial should have been severed from Muyaba’s;

and, on two grounds, his sentence was procedurally unreasonable.

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1.

Although Mudekunye moved to sever prior to trial, he did so only with

respect to co-defendant Nichelle Henson not with respect to Muyaba.

Nevertheless, he contends the district court erred by not severing his trial from

Muyaba’s, and claims resulting prejudice. Because this issue is raised for the

first time on appeal, review is only for plain error. E.g., United States v. Misher,

99 F.3d 664, 669 (5th Cir. 1996).

Severance vel non is within the discretion of the district court: it should

be granted “only if there is a serious risk that a joint trial would compromise a

specific trial right of one of the defendants”, and limiting instructions to the jury

will often cure any prejudice resulting from a joint trial. Zafiro v. United States,

506 U.S. 534, 539 (1993). Mudekunye must show “specific and compelling

prejudice against which the district court could not provide adequate protection,

and that this prejudice resulted in an unfair trial”. United States v. Stouffer, 986

F.2d 916, 924 (5th Cir. 1993). Mudekunye fails to do so; instead, he complains

generally.

As discussed, a generalized showing of prejudice is insufficient. E.g.,

United States v. Solis, 299 F.3d 420, 441 n.46 (5th Cir. 2002) (“severance issues

are fact-specific, requiring a showing of specific compelling prejudice” (citation

and internal quotation marks omitted)); Stouffer, 986 F.2d at 924. In addition,

substantial evidence directly implicating Mudekunye in the conspiracy removes

any concern that not severing subjected him to “manifest injustice”. United

States v. Carreon, 11 F.3d 1225, 1240 (5th Cir. 1994). Last, the instructions

alleviated any risk of prejudice arising from a joint trial. See United States v.

Bernard, 299 F.3d 467, 476 (5th Cir. 2002). The jury was instructed to consider

each defendant’s charges separately, and this court must presume that it heard,

understood, and followed those instructions. Richardson v. Marsh, 481 U.S. 200,

211 (1987). Defendants’ being acquitted on some charges reflects the jury was

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able to consider, and weigh separately, each of the charges. United States v.

Ellender, 947 F.2d 748, 755 (5th Cir. 1991).

2.

Mudekunye contends his sentence was procedurally unreasonable because

the court erroneously applied two sentencing enhancements for the same

conduct. Because Mudekunye failed to raise this objection below, plain error

review applies. See United States v. Hernandez–Martinez, 485 F.3d 270, 272–73

(5th Cir. 2007).

a.

Under the Guidelines, if a § 2T1.4(b)(1) enhancement is applied at

sentencing, a § 3B1.3 enhancement should not be. U.S.S.G. § 2T1.4(b)(1) cmt.

n.2. The Government concedes that the district court erred in applying both

enhancements and that this error was clear. The application of the § 3B1.3

enhancement resulted in a total offense level of 28. Combined with Mudekunye’s

criminal history category of I, the application of the enhancement resulted in an

advisory sentencing range of 78 to 97 months. The correct Guidelines range is

63 to 78 months. See U.S.S.G. Ch. 5 Pt. A (Sentencing Table). The incorrect

Guidelines range (78–97 months) and the correct Guidelines range (63–78

months) overlap by one month as the top of the correct range and the bottom of

the incorrect range are the same: 78 months.

b.

To satisfy the third prong of plain-error review, the error must have

affected the defendant’s substantial rights, which ordinarily requires the

defendant to show that the error “affected the outcome of the district court

proceedings.” United States v. John, 597 F.3d 263, 284 (5th Cir. 2010) (quotation

omitted). A sentencing error affects a defendant’s substantial rights if he can

show a reasonable probability that, but for the district court’s misapplication of

the Guidelines, he would have received a lesser sentence. United States v.

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Blocker, 612 F.3d 413, 416-17 (5th Cir. 2010). Our precedent is clear that absent

additional evidence, a defendant has shown a reasonable probability that he

would have received a lesser sentence when (1) the district court mistakenly

calculates the wrong Guidelines range, (2) the incorrect range is significantly

higher than the true Guidelines range, and (3) the defendant is sentenced within

the incorrect range. See, e.g., John, 597 F.3d at 284–85 (holding that an imposed

sentence affects a defendant’s substantial rights when it significantly exceeds

the high- and low-ends of applicable Guidelines range); United States v. Jasso,

587 F.3d 706, 713 n.10 (5th Cir. 2009) (“In cases where this Court has found

plain error, the gap between the correct and erroneous sentences has been

sufficient enough that there was an apparent, reasonable probability that the

defendant would have received a lesser sentence but for the district court’s

error.”) (collecting cases).

There is a second line of precedent relevant to this case. These cases hold

that when the correct and incorrect ranges overlap and the defendant is

sentenced within the overlap, “we do not assume, in the absence of additional

evidence, that the sentence affects a defendant’s substantial rights.” United

Blocker, 612 F.3d at 416. This default (or presumption) is undeniably sensible,

because the defendant is still sentenced within the applicable Guidelines range.

Mudekunye’s case does not neatly fall into either line of precedent. The

correct and incorrect sentencing ranges overlap by one month, but he was

sentenced well outside the one month overlap, 19 months above the correct

range. No published cases have addressed the same fact scenario, but in an

unpublished case, United States v. Carrizales–Jaramillo, we remanded for

resentencing in a similar situation. 303 F. App’x 215, 217 (5th Cir. 2008) (per

curiam) (unpublished) (vacating a 31-month imposed sentence based on an

incorrect Guidelines calculation of 30–37 months rather than 24–30 months).

While this case is not binding, it is persuasive and supports the conclusion that

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the reasoning applicable to our “no overlap” line of cases best applies here. That

is, where it is “not apparent from the record that [the defendant] would have

received an above-Guidelines sentence,” the imposed sentence affects the

defendant’s substantial rights. John, 597 F.3d at 285 (holding that a sentence

21 months above the high end and 38 months above the low end of the correct

Guidelines range violated the defendant’s substantial rights).

It is not apparent from the record that Mudekunye would have received

an above-Guidelines sentence of 97 months if the district court had calculated

the Guidelines correctly. See John, 587 F.3d at 285. The sentencing judge stated

that Mudekunye’s “sentence happens to be within the Guideline range” and that

it “is the appropriate sentence in this case given all of the facts and

circumstances.” The government argues that these phrases indicate that the

court would have imposed the same sentence regardless of the correct Guidelines

range. We cannot arrive at the same conclusion. The court’s comments are vague

and ambiguous, in contrast to other cases in which we have held that the court’s

statements eliminate any reasonable probability of a lesser sentence. In these

cases, the sentencing court stated explicitly and unequivocally that the imposed

sentence was the correct sentence regardless of the applicable Guideline ranges.

See United States v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008) (finding that

district court imposed a valid alternative non-Guidelines sentence when it

considered the correct and incorrect ranges and stated: “I believe that I have

calculated the guidelines correctly, but even if I am wrong about the guidelines,

this is the sentence that I would impose in any event.”); United States v.

Lemus-Gonzalez, 563 F.3d 88, 94 (5th Cir. 2009) (finding no reasonable

probability of a lesser sentence where the district court considered both the

correct and incorrect ranges and stated that it would have imposed the same

sentence in any event). The record does not establish that Mudekunye would

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have received an above-Guidelines sentence of 97 months if the district court had

calculated the Guidelines correctly.

In light of the significant disparity between Mudekunye’s sentence and the

top of the correct Guidelines range and the absence of any evidence suggesting

that the court would have sentenced Mudekunye to 97 months’ imprisonment

irrespective of the correct Guidelines range, Mudekunye has shown a reasonable

probability of a lesser sentence and therefore, demonstrated that the court’s

clear error affected his substantial rights.

c.

Even where a defendant’s substantial rights are violated, our court retains

discretion to correct the reversible plain error only if it seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Puckett, 129 S.

Ct. at 1429. The substantial disparity between the imposed sentence and the

applicable Guidelines range warrants the exercise of our discretion to correct the

error. See United States v. Gonzalez–Terrazas, 529 F.3d 293, 299 (5th Cir. 2008)

(concluding that the imposition of a sentence that was substantially greater than

the Guidelines range affected the defendant’s substantial rights and the fairness

of the judicial proceedings). We vacate Mudekunye’s sentence and remand for

resentencing.1

III.

For the foregoing reasons, we AFFIRM on every ground with the exception

of Mudekunye’s sentence which we VACATE and REMAND for resentencing.

1

Because we vacate and remand for resentencing, we need not address Mudekunye’s

argument that his sentence was procedurally unreasonable because the sentencing court

treated the Guidelines as mandatory and ignored mitigating factors.

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RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting in part:

I dissent only from the majority’s, under plain-error review, requiring

resentencing for Mudekunye (part II.B.2.). It has been almost 20 years since

United States v. Olano, 507 U.S. 725 (1993), clarified application of plain-error

review. And, for reviewing sentences imposed through application of the

Sentencing Guidelines, it has been over six years since United States v. Booker,

543 U.S. 220 (2005), held the Guidelines are only advisory. In the light of Olano

and Booker, it would seem that plain-error review would have been simplified

and made more flexible. Unfortunately, if not amazingly, just the opposite has

occurred.

This is vividly reflected in the majority’s analysis and holding for

Mudekunye’s sentence, through which it seeks to apply the Supreme Court’s and

our precedent. It’s time for our court to step back, re-examine, and simplify this

important and all too often complex aspect for applying plain-error review to

sentences imposed under the advisory Guidelines. Accordingly, I urge our court

to review en banc this part of the majority opinion.

In vacating Mudekunye’s sentence, the majority emasculates the plain-error

standard of review by applying it in a manner inconsistent with the Supreme

Court’s and our precedent. In an area of law it admits is unclear, the majority

effectively creates a new rule: where defendant’s imposed sentence lies outside

the correct advisory Guidelines sentencing range, defendant must be resentenced

in district court. This rule is neither supported by precedent nor justified under

plain-error doctrine. The majority’s strained insistence on resentencing reflects

that, within our circuit, plain-error review, in this context, has been weakened to

the point of toothlessness, thereby defeating its many important and salutary

purposes, including “to induce the timely raising of claims and objections . . . .”

Puckett v. United States, 129 S. Ct. 1423, 1428 (2009).

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I.

From 2004 to 2007, Mudekunye and Muyaba, with others, were tax

preparers at Reliable Express Tax Services, in Dallas, Texas. Mudekunye was

one of two primary preparers. In 2007, Muyaba began operating Efficient Tax

Services, where he and Mudekunye conducted a similar business. Throughout,

Mudekunye, Muyaba, and others, participated in a tax-return scheme, falsely

claiming (frequently without their clients’ knowledge) dependants, business

expenses, filing status, and tax credits; they also charged exorbitant fees against

their clients’ refund checks.

Mudekunye, Muyaba, and three co-defendants were charged in a 39-count

indictment. A jury found Mudekunye guilty on six counts, including conspiracy,

preparation of false income taxes, and identity fraud; Muyaba was found guilty

on seven similar counts. Mudekunye was sentenced, inter alia, to 97-months’

imprisonment; Muyaba, to 120.

The district judge who sentenced Mudekunye had presided at his trial.

For Mudekunye’s offense level for computing his advisory Guidelines sentencing

range, the district court adopted the calculation in the presentence investigation

report (PSR): a criminal history category level I and an offense level 28,

resulting in an advisory sentencing range of 78 to 97 months. As discussed in

the majority opinion at 11, in determining that offense level, the district court

erroneously applied two Guidelines sentencing enhancements for the same

conduct. But for this error, Mudekunye’s offense level would have been two

levels lower, resulting in an advisory sentencing range of 63 to 78 months—with

a one-month overlap at 78 months between the correct and incorrect ranges.

In sentencing Mudekunye, the district court considered: trial evidence; 18

U.S.C. § 3553(a)’s sentencing factors; adopted PSR fact-findings; the Guidelines’

being advisory; and Mudekunye’s request for a sentence at the bottom of the

advisory sentencing range. The PSR included information that Mudekunye filed

fraudulent tax returns from 2003 until late 2008, for an IRS tax loss of

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$3,426,916 (a “conservative estimate” because it did not include a variety of

falsely-claimed credits). In the light of those many factors, the district court

concluded a 97-month sentence was “appropriate” and stated: “In addition, this

sentence happens to be within the guideline range . . . .”

II.

Undisputed is the standard of review—plain error. For understanding

how our court has strayed from the limited role intended for such review, it is

helpful first to recall its history through the landmark Olano decision in 1993.

A.

Plain-error review is grounded in Federal Rule of Criminal Procedure 52,

which took effect in 1944 and concerns application of harmless and plain error.

For harmless error, the original Rule 52 provided: “[a]ny error, defect,

irregularity or variance which does not affect substantial rights shall be

disregarded”; but, “[p]lain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court”. FED . R.

CRIM. P. 52 (a)-(b) (1944).

The harmless-error portion of the Rule has not been substantively

amended; the plain-error portion has been and now provides: “A plain error that

affects substantial rights may be considered even though it was not brought to

the court’s attention”. FED. R. CRIM. P. 52(b) (2002). (Following Olano, Rule

52(b) was amended by removing the words “or defect”, reflecting that Rule 52(b)

was not to be read in the disjunctive. FED. R. CRIM. P. 52(b) advisory committee

notes.)

The plain-error portion of the Rule codified the doctrine that had

previously existed only in common law. Id. That doctrine provided: “[I]f a plain

error was committed in a matter so absolutely vital to defendants, [appellate

courts are] at liberty to correct it”. Wiborg v. United States, 163 U.S. 632, 658

(1896) (emphasis added) (evidence showed jury instructions insufficient to

sustain conviction). The concept of being able to correct plain error is found four

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years earlier, in two dissents in O’Neil v. State of Vermont, 144 U.S. 323, 360,370

(1892). Justice Field, dissented from the Court’s dismissing for lack of federal

jurisdiction and stated: “I think . . . that this court . . . should take notice of the

error of its own motion; for, if the denial by the court below of the immunity

claimed against the cruel and unusual punishment imposed was an error, it was

one of the gravest character, leaving the defendant to a life of misery, —one of

perpetual imprisonment and hard labor”. Id. at 364-65. Justice Harlan echoed

this view in his dissent. Id. at 370-71.

Although the plain-error doctrine was, in the beginning, somewhat loosely

defined, the Supreme Court was consistent in its limited use to reverse verdicts.

The Court generally believed it appropriate where there was either a clear lack

of evidence supporting a jury conviction or an erroneous jury instruction. See,

e.g., Wiborg, 163 U.S. at 658 (reversing judgment where no evidence showed

captain’s mates had knowledge of criminal act); see also Clyatt v. United States,

197 U.S. 207, 221-22 (1905) (remand required where “there [wa]s not a scintilla

of testimony” supporting defendant’s conviction); Brasfield v. United States, 272

U.S. 448, 450 (1926) (judge’s polling jurors during their deliberations created

specter of juror-coercion); Weems v. United States, 217 U.S. 349, 362, 382 (1910)

(holding statute unconstitutional). The plain-error doctrine empowered the

Court to “examin[e] th[e] record for the purpose of determining whether there

is any substantial evidence to be found in it to warrant the conviction of [a]

defendant . . . .” Valdez v. United States, 244 U.S. 432, 449 (1917) (Clarke, J.,

dissenting) (citing Diaz v. United States, 223 U.S. 442, 459 (1912) (evidence

sufficient to sustain conviction); Clyatt, 197 U.S. at 207; Wiborg, 163 U.S. at

658). (Under our current doctrine, failure to request a judgment of acquittal for

insufficient evidence is not reviewed for plain error; instead it is reviewed under

a far more strict standard—manifest miscarriage of justice. E.g., United States

v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007); United States v. Pierre, 958 F.2d

1304, 1310-11 (5th Cir. 1992).)

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Eight years before Rule 52(b) went into effect, the Court, in United States v.

Atkinson, 297 U.S. 157 (1936), denied the Government’s claims of reversible error,

and, in doing so, initially defined the parameters of current plain-error review.

Atkinson stated that, only “[i]n exceptional circumstances” may courts of appeals

consider objections not raised in district court. Atkinson, 297 U.S. at 160. In

language adopted almost 60 years later in Olano, the Atkinson Court held plain-

error review could be utilized “if the errors are obvious, or if they otherwise

seriously affect the fairness, integrity or public reputation of judicial proceedings”.

Id. Otherwise, jury verdicts may not be set aside for errors not presented to the

trial court, a practice “founded upon considerations of fairness to the court and to

the parties and of the public interest in bringing litigation to an end after fair

opportunity has been afforded to present all issues of law and fact”. Id. at 159.

As noted, Rule 52(b), enacted in 1944, codified the plain-error doctrine.

Between 1944 and 1982, the Court applied Rule 52(b) in a manner consistent with

the doctrine that predated its taking effect. See, e.g., United States v. Park, 421

U.S. 658, 675-76 (1975) (jury instructions, based on entirety of record, sufficient to

sustain conviction); Fisher v. United States, 328 U.S. 463, 469-70 (1946) (jury

instructions sufficient to sustain conviction and sentence).

As also noted, at its inception, Rule 52 did not define the phrase “affecting

substantial rights”—nor does it do so now. The Court, however, in Kotteakos v.

United States, 328 U.S. 750, 757 n.9, 775-76 (1946), indicated that the “affecting

substantial rights” portion of Rule 52 (both harmless error under part (a) and plain

error under part (b)) meant “the error had substantial and injurious effect or

influence in determining the jury’s verdict”. The Court has since noted that the

affecting-substantial-rights standard from Kotteakos has evolved into “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. 74, 81-82 (2004)

(citation and internal quotation marks omitted). The latter is addressed in the

substantial-rights prong of current plain-error review, discussed infra.

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In United States v. Frady, 456 U.S. 152, 163-66 (1982), the Court

reinforced the limits of Rule 52(b). In ruling that the plain-error standard of

review was inapplicable to collateral review of a criminal conviction, the Court

noted that Rule 52(b) grants “courts of appeals the latitude to correct

particularly egregious errors on appeal” and “reflects a careful balancing of our

need to encourage all trial participants to seek a fair and accurate trial the first

time around against our insistence that obvious injustice be promptly

redressed”. Id. at 163. The Court cautioned, however, that “Rule 52(b) is to be

used sparingly, solely in those circumstances in which a miscarriage of justice

would otherwise result”. Id. at 163 n.14 (emphasis added) (citing United States

v. Gerald, 624 F.2d 1291, 1299 (5th Cir. 1980)). “The intention of [Rule 52(b)] is

to serve the ends of justice; therefore it is invoked only in exceptional

circumstances where necessary to avoid a miscarriage of justice.” Id. (emphasis

added) (citation and internal quotation marks omitted).

The Court subsequently noted that the “miscarriage of justice” standard

articulated in Frady was synonymous with that from Atkinson (“seriously affect the

fairness, integrity or public reputation of judicial proceedings”). United States v.

Young, 470 U.S. 1, 15 (1985) (holding alleged prosecutorial misconduct not reversible

plain error). In describing the parameters of plain-error review (whether the error

seriously affected substantial rights and had an unfair prejudicial impact on juror

deliberations), the Young Court first cautioned against a per se, i.e., categorical,

approach to plain-error review: “An error . . . must be more than obvious or readily

apparent . . . to trigger appellate review under [Rule] 52(b)”. Id. at 16 n.14. “To do

otherwise could well lead to having appellate courts indulge in the pointless exercise

of reviewing harmless plain errors—a practice that is contrary to the draftsmen’s

intention behind Rule 52(b) . . . .” Id. (internal quotation marks omitted). (Post-

Olano, the Court again cautioned against this per se approach in Puckett v. United

States, 129 S. Ct. 1423, 1433 (2009), citing Young, 470 U.S. at 16 n.14.)

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As noted, in Olano, the Court in 1993 clarified and made uniform “the

standard for ‘plain error’ review by the courts of appeals under Rule 52(b)”. Olano,

507 U.S. at 731. Prior to Olano, our court had been in-step with the Supreme Court

regarding plain error’s being used sparingly. This court was mindful of the policy

underpinnings of plain-error review: “promoting the economy of judicial resources

and maintaining the distinct institutional roles of trial courts and appellate courts

. . . .” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991) (citation and internal

quotation marks omitted). Our court also noted the limited nature of reversal

under the plain-error standard of review: “it is invoked ‘only in exceptional

circumstances (where necessary) to avoid a miscarriage of justice’”. United States

v. Gerald, 624 F.2d 1291, 1299 (5th Cir. 1980) (quoting Eaton v. United States, 398

F.2d 485, 486 (5th Cir. 1968)); see also Lopez, 923 F.2d at 50 (questions of fact can

never constitute plain error); United States v. Brown, 555 F.2d 407, 420 (5th Cir.

1977) (constitutional errors noticed more freely than less serious ones). Moreover,

our court was mindful that plain-error review depended upon the facts and

circumstances of the case, Sykes v. United States, 373 F.2d 607, 612 (5th Cir. 1966);

and “[t]here is no hard and fast rule for determining whether error is plain”.

Gerald, 624 F.2d at 1299. By 1993, our rule for plain-error review was: “Plain

error is error which, when examined in the context of the entire case, is so obvious

and substantial that failure to notice and correct it would affect the fairness,

integrity or public reputation of judicial proceedings”. United States v. Vontsteen,

950 F.2d 1086, 1092 (5th Cir. 1992) (en banc) (citation and internal quotation

marks omitted).

In 1993, in Olano, in reversing a circuit court’s employing plain-error review

to overturn convictions, the Court held the presence of alternate jurors among a

deliberating jury was not reversible plain error. Olano, 507 U.S. at 741. In

articulating what was to become the well-known, four-prong framework for plain-

error review, Justice O’Connor reflected upon the doctrine’s history and emphasized

that plain-error review provides courts of appeals only with “limited power” to

correct forfeited (as opposed to waived) error. Id. at 731.

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The Court explained that forfeited error occurs when defendant fails to

make a timely objection to a court’s deviation from a legal rule; on the other

hand, “waiver is the intentional relinquishment or abandonment of a known

right”. Id. at 733 (emphasis added) (internal citation and quotation marks

omitted). “If a legal rule was violated during the district court proceedings, and

if the defendant did not waive the rule, then there has been an ‘error’ within the

meaning of Rule 52(b) despite the absence of a timely objection.” Id. at 733-34.

That four-prong framework provides: first, there must be error; second,

that error must be “plain”—“clear or obvious”—meaning not up for reasonable

debate; third, that plain error must have violated defendant’s substantial rights;

and fourth, if the first three prongs are satisfied (reversible plain error), the

courts of appeals may exercise their “remedial discretion” only “if the error

‘seriously affects the fairness, integrity or public reputation of judicial

proceedings’”. Id. at 732-736 (quoting Atkinson, 297 U.S. at 160); see also

Puckett, 129 S. Ct. at 1429. The use of “only” as a qualifier for “seriously affects

the fairness, integrity, or public reputation of judicial proceedings” first

appeared in Johnson v. United States, 520 U.S. 461, 467 (1997).

In any event, Olano clearly established that remand may be appropriate

only where the reversible plain error impacts this discretionary fourth prong,

i.e., seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Olano, 507 U.S. at 736. In addition, Justice O’Connor explained

why this fourth prong’s definition is not the “miscarriage of justice” standard.

Id. On this final, discretionary, prong, the Olano Court emphasized the

continuity in its application of plain-error review: “[T]he standard laid down in

United States v. Atkinson, was codified in Federal Rule of Criminal Procedure

52(b), and we repeatedly have quoted the Atkinson language in describing plain-

error review”. Olano, 507 U.S. at 736 (citations and internal quotation marks

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omitted). Without satisfying the Atkinson standard, “the discretion afforded by

Rule 52(b) would be illusory”. Id.

B.

For Mudekunye, those first two prongs of plain-error review (an error in

applying the two enhancements that was clear or obvious) are not at issue. The

majority’s application of the third and fourth prongs flies in the face of each

prong and is contrary to both the limited role for plain-error review and the

discretion and flexibility accorded it.

1.

Under Olano’s third prong, for reversible plain error, the clear or obvious

error (“plain error” upon analysis of the first two prongs) must “affect substantial

rights”, generally meaning defendant must demonstrate that the error “must

have affected the outcome of the district court proceedings”. United States v.

Mares, 402 F.3d 511, 521 (5th Cir. 2005) (quoting Olano, 507 U.S. at 734). In the

sentencing context, following the 2005 holding in Booker, 543 U.S. at 245, that

the Guidelines are only advisory, our court has interpreted that outcome-

determinative consideration for the third prong to mean “whether the defendant

can show a reasonable probability that, but for the district court’s misapplication

of the Guidelines, he would have received a lesser sentence”. United States v.

Villegas, 404 F.3d 355, 364-65 (5th Cir. 2005) (emphasis added). (As noted

recently by our court, and discussed infra, it is unclear whether a different, pre-

Booker, standard for evaluating a sentencing error’s effect on substantial rights

remains in effect: “if the case were remanded, the trial judge could reinstate the

same sentence”. United States v. Davis, 602 F.3d 643, 647 n.6 (5th Cir. 2010)

(quoting United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997)).)

For Rule 52(a) harmless-error review, the Government bears the burden

of showing the error was harmless beyond a reasonable doubt; however, for Rule

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52(b)’s plain-error review, it is the defendant who bears the burden of persuasion

with respect to the prejudice (third) prong. Olano, 507 U.S. at 734. And, “that

burden should not be too easy”. Dominguez Benitez, 542 U.S. at 82. “Otherwise,

the prejudice standard would not serve its purpose of ‘enforc[ing] the policies

that underpin [plain-error review] generally, to encourage timely objections and

reduce wasteful reverses by demanding strenuous exertion to get relief for

unpreserved error.’” Mares, 402 F.3d at 521 (quoting Dominguez Benitez, 542

U.S. at 82).

In sentencing Mudekunye, the district court was very thorough. It

received evidence, including testimony, concerning the tax-loss amount

attributable to Mudekunye’s conduct ($3,426,916), and found that the

calculations used in the PSR were reasonable and accounted for a complete loss

to the Government. In addition, the court heard testimony from two witnesses

concerning Mudekunye’s personal history and characteristics, and considered

letters pleading for leniency on his behalf. Moreover, Mudekunkye requested a

sentence at the bottom of the calculated advisory Guidelines sentencing range

(78 months), contending he did not do “anything that would suggest that his

sentence should be any higher than that”.

After considering the facts contained in the PSR, Mudekunye’s objections,

character witnesses, and his request for a 78-month sentence, the district court

imposed a 97-month sentence, which the court described as “reasonable” based

upon “the evidence that I have heard at trial and those [sentencing] matters I’m

required to take into account under Section 3553(a)”. The court added: “I

believe this is the appropriate sentence in this case given all of the facts and

circumstances and that this sentence is sufficient but not greater than necessary

to comply with the statutory purposes of sentencing after reviewing all of the

factors required to be considered”. It then stated : “In addition, this sentence

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happens to be within the guideline range and that range does not exceed 24

months”. (Where defendant is sentenced within an advisory Guidelines

sentencing range, and if that range exceeds 24 months, the court must provide

the reasons for imposing that sentence. 18 U.S.C. § 3553(c)(1). In any event, as

shown above, those reasons were given.)

Here, in holding that Mudekunye’s substantial rights were affected, the

majority fails to consider his burden of persuasion (the majority correctly states

the rule, but ignores it, Maj. Opn. at 11). In essence, the majority attempts

improperly to satisfy Mudekunye’s burden for him. Defendant’s burden, under

the third prong, requires

the defendant to show that the error actually did make

a difference: if it is equally plausible that the error

worked in favor of the defense, the defendant loses; if

the effect of the error is uncertain so that we do not

know which, if either, side it helped the defendant

loses.

Mares, 402 F.3d at 521 (quoting United States v. Rodriguez, 398 F.3d 1291, 1299

(11th Cir. 2005)); see also United States v. Jones, 444 F.3d 430, 443 (5th Cir.

2006). “[A] defendant normally ‘must make a specific showing of prejudice’ in

order to obtain relief”. Puckett, 129 S. Ct. at 1433 (quoting Olano, 507 U.S. at

735). The majority has turned the defendant’s third-prong burden on its head.

Instead of addressing what defendant has shown in attempting to satisfy his

burden, the majority states only that, “where it is not apparent from the record

that the defendant would have received an above-Guidelines sentence [a

sentence above a correctly calculated advisory sentencing range], the imposed

sentence affects the defendant’s substantial rights” and then places the burden

on the Government to show support in the record for a sentence imposed above

the correct range. Maj. Opn. at 13 (citation and internal quotation marks

omitted). Thus, the majority has flipped the third-prong of plain-error review.

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According to the majority, unless the Government can show otherwise, being

sentenced above the correct range constitutes error affecting defendant’s

substantial rights. Id. at 13-14.

As for the majority’s attempting to satisfy Mudekunye’s burden for him,

his opening brief does not even begin to show his substantial rights were

affected. In an argument of just over one page, Mudekunye concedes the error

was not preserved in district court and asserts only that, nevertheless, “this

error must result in a new sentencing hearing”. Re-stated, his brief simply

asserts: he was sentenced under the wrong advisory Guidelines sentencing

range; and, therefore, he is entitled to resentencing.

Moreover, Mudekunye did not file a reply brief. Accordingly, he did not

reply to the Government’s thorough briefing on why he failed to show reversible

plain error and why, even if he had, we should not exercise our discretion to

correct it.

In short, it is the majority, not Mudekunye, who references the record

evidence: “It is not apparent from the record that Mudekunye would have

received an above-Guidelines sentence of 97 months if the district court had

calculated the Guidelines correctly”. Id. at 13. Along this line, Justice Cardozo

admonished that a judge “is not a knight-errant, roaming at will in pursuit of his

own ideal of beauty or of goodness”. BENJAMIN N. CARDOZO, THE NATURE OF THE

JUDICIAL PROCESS 141 (1921); see also United States v. John, 597 F.3d 263, 292

(5th Cir. 2010) (Smith, J., dissenting) (“Judges are not like pigs, hunting for

truffles . . . .” (citations and internal quotation marks omitted)). Simply put, our

role is not to satisfy Mudekunye’s affected-substantial-rights prong for him.

Properly placing that burden upon defendant—as is clearly

required—yields a different result. Mudekunye shows only that he was

sentenced under an incorrect advisory Guidelines sentencing range; but, being

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sentenced outside the correct range does not, ipso facto, affect his substantial

rights. Post-Booker, an advisory Guidelines sentencing-range calculation is just

“one factor that a district court must consider in its [18 U.S.C.] § 3553(a)

analysis . . . .” Davis, 602 F.3d at 649 n.9 (noting that, by itself, erroneous

Guidelines sentencing-range selection not necessarily sufficient for error to affect

substantial rights). And, as the majority admits, our precedent is unclear on

whether defendant’s substantial rights are affected where the correct and

incorrect sentencing ranges overlap and defendant is sentenced outside that

overlap: “Mudekunye’s case does not neatly fall into either line of [our]

precedent”. Maj. Opn. at 12.

A more complete (and proper) evaluation of the record shows that

Mudekunye has not met his heavy burden of persuasion. The majority either

glosses over or chooses to ignore: Mudekunye’s asking for a sentence at the

bottom of the (now incorrect) advisory sentencing range and the district court’s

instead deciding to sentence him at the top of that range; the court’s clear

statement treating the Guidelines as advisory only; the correct and incorrect

advisory ranges overlapping one another; the district court’s adopting the facts

and findings of the PSR; and the district court’s stating that Mudekunye’s

sentence “is the appropriate sentence in this case given all of the facts and

circumstances” and “[i]n addition . . . happens to be within the guideline range”.

(Emphasis added.)

The majority at 13 considers “vague” these “appropriate sentence . . . given

all of the facts and circumstances” and “happens to be within the guideline

range” statements, because the district court did not add that it would impose

the same sentence even if it were not within a correct range. Id. But words have

meaning; and, as an appellate court, we must presume that the sentencing court

meant what it said. It would go beyond frustrating the purposes of the judicial

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process for our court to guess at what the sentencing court did, and did not,

“mean”. In the light of the foregoing, Mudekunye, at best, can show (and does

not even attempt to do so) only that the impact of the error is perhaps

uncertain—in which instance he has not established that the error affected his

substantial rights. See Jones, 444 F.3d at 443 (“At best, the record indicates

that it is equally plausible that the district court would have imposed the same

sentence as it is plausible that the court would not have.” (citing Mares, 402 F.3d

at 521)).

As stated, the majority appears to conclude that, in this instance, remand

would not be required had the district court either: (1) been more explicit in its

desire to impose the 97-month sentence regardless of the advisory Guidelines;

or (2) calculated both the correct and incorrect sentencing ranges before

imposing sentence. Maj. Opn. at 13. In doing so, the majority cites United

States v. Lemus-Gonzalez, 563 F.3d 88, 91, 94 (5th Cir. 2009) (court considered

both correct and incorrect ranges and stated it would impose same sentence

“should it turn out that the court is wrong”) and United States v. Bonilla, 524

F.3d 647, 656-57 (5th Cir. 2008) (finding remand unnecessary where court

considered correct and incorrect ranges, imposed sentence, and stated: “this is

the sentence that I would impose in any event”).

For starters, neither Bonilla nor Lemus-Gonzalez applied plain-error

review; in each instance, the issue was preserved in district court. Moreover, the

majority’s conclusions based upon these cases are non-sensical. First, I am at

a loss for what else the district court here could have meant in saying that the

sentence was appropriate “given all of the facts and circumstances” and

“happens to be within the guideline range”. Second, the majority essentially

requires a sentencing court to: (1) recognize its error sua sponte; and (2) create

two sentences—one desired and one conditional—with the conditional to be used

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only if the desired sentence is not free from error. In my view, that places an

unnecessary and unrealistic burden upon the district court.

2.

Even assuming Mudekunye’s substantial rights were affected, his sentence

should not be vacated. As discussed, the fourth, and discretionary, prong of

plain-error review provides: even if defendant has satisfied the first three

prongs, we retain discretion to correct the error and should do so only if it

“seriously affects the fairness, integrity or public reputation of judicial

proceedings”. Olano, 507 U.S. at 736 (citation and internal quotation marks

omitted). As discussed supra, Olano did not expressly use the word “only” for

correcting a reversible plain error when it “seriously affects the fairness,

integrity or public reputation of judicial proceedings”. Id. Since then, however,

the Supreme Court has added “only” to the fourth prong: “An appellate court

should exercise its discretion to correct plain error only if it ‘seriously affect[s]

the fairness, integrity, or public reputation of judicial proceedings”. Jones v.

United States, 527 U.S. 373, 389 (1999) (emphasis added) (quoting Olano, 507

U.S. at 736). “The fourth prong is meant to be applied on a case-specific and

fact-intensive basis.” Puckett, 129 S. Ct. at 1433 (noting per se approach is

flawed and countervailing factors should be considered); see also United States

v. Calverley, 37 F.3d 160, 164 (5th Cir. 1994) (en banc) (“The appellate courts

must determine whether the facts of the particular case warrant remediation.”),

abrogated on other grounds by United States v. Dupre, 117 F.3d 810, 817 (5th

Cir. 1997); United States v. Rodriguez, 15 F.3d 408, 416 (5th Cir. 1994) (“the

ultimate decision whether . . . to take notice of an error not raised below must

depend on the facts of the particular case” (quoting United States v. Morales, 477

F.2d 1309, 1315 (5th Cir. 1973))).

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As noted, this is a discretionary, not mandatory, prong, and informs our

court that remand “should be employed in those circumstances in which a

miscarriage of justice would otherwise result”. Olano, 507 U.S. at 735-36

(citation and internal quotation marks omitted) (stating this prong is

“permissive” and “the court of appeals has authority to order correction, but is

not required to do so”). Without an exacting and limited application of this

prong, it becomes “illusory”. Id. at 737. In short, “[m]eeting all four prongs is

difficult, as it should be”. Puckett, 129 S. Ct. at 1429 (citation and internal

quotation marks omitted).

In addressing the fourth prong, the majority notes our court’s discretion

to correct reversible plain error, and then states: “The substantial disparity

between the imposed sentence and the applicable Guidelines range warrants the

exercise of our discretion to correct the error”. Maj. Opn. at 14. It states no

more, other than citing United States v. Gonzalez-Terrazas, 529 F.3d 293, 298-99

(5th Cir. 2008), in which defendant was sentenced at the bottom of an incorrect

advisory sentencing range; the imposed sentence was 33 months above the

bottom of the correct, and lower, range.

Here, the majority utterly fails to conduct any sort of fact-intensive

inquiry. See Puckett at 1433. Instead, it assumes that, because there is a

“substantial disparity” between the imposed sentence and the correct sentencing

range, our court must, ipso facto, use its discretion and remand for resentencing.

Maj. Opn. at 14 (“The substantial disparity between the imposed sentence and

the applicable Guidelines range warrants the exercise of our discretion to correct

the error.”). In so ruling, the majority has folded the fourth-prong of our plain-

error review inquiry into the third prong, thereby making the fourth prong—just

as Olano warned—“illusory”. Olano, 507 U.S. at 736; John, 597 F.3d at 290

(Smith, J., dissenting) (“By such reasoning, the fourth prong is collapsed into the

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third, further weakening the test.”); see also Davis, 602 F.3d at 651 n.12 (noting

that only under a mandatory-Guidelines regime is remand required whenever

error clearly affected defendant’s sentence and cautioning that United States v.

Price, 516 F.3d 285 (2008), does not categorically require remand wherever a

probability of a lesser sentence is found).

A more thorough (and, in my view, correct) review of the record mandates

that, under our discretion, resentencing is not required. See Young, 470 U.S. at

16 (“Especially when addressing plain error, a reviewing court cannot properly

evaluate a case except by viewing such a claim against the entire record.”) For

example, Muyaba filed false tax returns from 2005 until late 2008, for an IRS

tax loss of $2,661,060; Mudekunye did so from 2003 until late 2008 with an IRS

tax loss of $3,426,916 (“conservative estimate”). Nevertheless, Mudekunye’s

challenged 97-month sentence is substantially less than Muyaba’s for 120

months. Mudekunye’s activities, however, were essentially the same as

Muyaba’s: unlike Mudekunye, Muyaba had a leadership role at Efficient; but,

unlike Muyaba, Mudekunye was convicted of two counts of identify theft, and,

as noted, was responsible for a considerably higher tax loss than Muyaba.

In the light of Mudekunye’s criminal conduct, this is not the appropriate

instance for us to exercise our discretion and require resentencing; in the light

of the entire record, the district court’s error did not rise to the level of being

“particularly egregious”. Frady, 456 U.S. at 163. Therefore, even assuming

reversible plain error, it falls far short of seriously affecting the fairness,

integrity, or public reputation of judicial proceedings. See John, 597 F.3d at 290

(Smith, J., dissenting).

Regardless, the point remains: in failing to conduct a fact-intensive

inquiry, the majority fails to conduct plain-error review. See also id. at 291

(Smith, J., dissenting) (“[G]ranting relief under the fourth prong is wholly

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discretionary and . . . must be done on a case-by-case basis . . . [;] we are not

tethered to what other panels of this court have done in deciding whether to

exercise their discretion in other cases, similar or not”.).

C.

Because the majority vacates Mudekunye’s sentence due to the district

court’s erroneous application of two enhancements, instead of one, it does not

address Mudekunye’s contending, in the alternative, that the sentence is greater

than necessary. Maj. Opn. at 14 n.2. Because Mudekunye’s first challenge to his

sentence fails, it is necessary to address his second: that his sentence was

procedurally unreasonable because the district court, according to Mudekunye,

treated his advisory sentencing range as mandatory and ignored mitigating

factors—his history and characteristics.

Mudekunye contends he preserved this second procedural challenge at

sentencing by, as noted supra, requesting a below-range sentence. That, however,

does not constitute the contention presented here. United States v. Garcia-

Bahena, No. 10-10355, 2010 WL 4740317, at *1 (5th Cir. 23 Nov. 2010); United

States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009) (defendant must

raise procedural objection in district court so it may correct itself). Therefore,

plain-error review again applies. E.g., United States v. Peltier, 505 F.3d 389, 391-

92 (5th Cir. 2007).

The record reflects that the district court expressly treated the Guidelines

as advisory and considered, inter alia, defendant’s history and characteristics.

Accordingly, Mudekunye does not get past the first prong of plain-error review:

he fails to show error by the court in its consideration of § 3553(a). See United

States v. Smith, 440 F.3d 704, 707-08 (5th Cir. 2006).

D.

This is yet another instance revealing the confused status and application

of our circuit’s precedent for plain-error review. See Davis, 602 F.3d at 651

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(noting case law unsettled as to whether “precedent requires remand whenever

an appellant can show a reasonable probability that an unpreserved error

affected the sentence”); John, 597 F.3d at 290 (Smith, J., dissenting) (“question

that this circuit has not definitively resolved, which is the extent of the deviation

from the proper guideline range necessary for [a sentencing] error to ‘affect

substantial rights’”); United States v. Ellis, 564 F.3d 370, 378 (5th Cir. 2009)

(“we are not convinced that the case law on this point is settled or as categorical

as language in some cases might make it seem”); Price, 516 F.3d at 289 n.28

(noting “the potential conflict between pre- and post-Booker decisions addressing

the question of ‘affecting substantial rights’”). And our circuit is not alone in this

regard. See United States v. Langford, 516 F.3d 205, 222-24 (3d Cir. 2008)

(Weis, J., dissenting) (noting problems in post-Booker line of cases between

Guidelines-calculation errors and reasonable sentences under plain-error

review).

The following provides a vivid example of our confused precedent. As

noted, in Price (2008), our pre-Booker line of cases applied an objective test for

whether defendant’s substantial rights were affected by a misapplication of a

sentencing-Guidelines enhancement: if, on remand, “the judge could reinstate

the sentence, we held, we would find no [third-prong] prejudice under plain error

review”. Price, 516 F.3d at 289 n.28 (emphasis in original). Price noted that,

under our post-Booker line of cases, however, that test has become more

subjective: “‘whether the defendant can show a reasonable probability that, but

for the district court’s misapplication of the Guidelines, [the defendant] would

have received a lesser sentence’”. Id. (quoting Villegas (2005), 404 F.3d at 364).

Price noted that our court would eventually have to address the potential conflict

between the subjective versus objective inquiries when faced with “a closer

question of ‘substantial rights’”. Id.; see also Jones (2006), 444 F.3d at 438 (“We

need not resolve whether the two can be harmonized or which standard governs

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because a remand is not required under either.”) Davis (2010) noted that,

although the substantial-rights standard from Villegas was written post-Booker,

it concerned a pre-Booker sentencing, under then-mandatory Guidelines. Davis,

602 F.3d at 651 n.12. The Villegas standard is cited in United States v. Blocker,

612 F.3d 413, 416-17 (5th Cir. 2010), which is, in turn, cited by the majority at

11-12.

As recent opinions show, our court has become increasingly “generous with

remand” in addressing sentencing errors under plain-error review. As Ellis

reminded and cautioned:

Not every error that increases a sentence need be

corrected by a call upon plain error doctrine. It bears

emphasis that all defendants’ appeals challenging a

sentence rest on the practical premise that the sentence

should be less. The doctrine of plain error serves

powerful institutional interests, including securing the

role of the United States District Court as the court of

first instance, as opposed to a body charged to make

recommendations to appellate courts. And even if an

increase in a sentence be seen as inevitably ‘substantial’

in one sense it does not inevitably affect the fairness,

integrity, or public reputation of judicial process and

proceedings. To conclude that not correcting the error

claimed here casts doubt upon the fairness, integrity, or

public reputation of the proceeding drains all content

from the doctrine of plain error.

Ellis, 564 F.3d at 378-79.

In the sentencing context, plain-error review has been watered down by

years of, in my view, incorrect application. Post-Booker, our court has, as

discussed by the majority, applied at least two per se rules with respect to

sentencing errors and our review under the plain-error standard. The first is:

when defendant’s sentence falls within an incorrect advisory Guidelines

sentencing range that is higher than the correct range, and there is no overlap

between the two, defendant has shown a reasonable probability that he would

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have received a lesser sentence absent additional evidence to the contrary. Maj.

Opn. at 12; see, e.g., John, 597 F.3d at 284-85. The second is: “when the correct

and incorrect ranges overlap and the defendant is sentenced within the overlap,

we do not assume, in the absence of additional evidence, that the sentence

affects a defendant’s substantial rights”. Maj. Opn. at 12 (emphasis, citation,

and internal question marks omitted). Yet, the Supreme Court has specifically

rejected using per se rules under the plain-error standard. Puckett, 129 S. Ct.

at 1433 (“We have emphasized that a ‘per se approach to plain-error review is

flawed.’” (quoting Young, 470 U.S. at 17)). “‘The plain error rule is not a run-of-

the-mill remedy.’” Frady, 456 U.S. at 163 n.14 (quoting Gerald, 624 F.2d at

1299).

Along those lines, in applying plain-error review post-Booker, our court has

generated significant variance in measuring the severity of a sentence-increase

necessary to affect defendant’s substantial rights where the Guidelines were

erroneously applied. See, e.g., Blocker, 612 F.3d at 417 (defendant’s substantial

rights not affected after receiving erroneous two-point increase to criminal-

history score); United States v. Sandlin, 589 F.3d 749, 757-58 (5th Cir. 2009)

(following downward departure, defendant’s substantial rights affected because

of erroneous 17-level increase to offense level); United States v. Sanchez, 527

F.3d 463, 466 (5th Cir. 2008) (substantial rights affected because sentence more

than double the correct range); Price, 516 F.3d at 289 n.28 (substantial rights

affected because of 18-month disparity between the bottom of the correct and

incorrect ranges); John, 597 F.3d at 285 (substantial rights affected because

defendant’s 108-month sentence exceeded top of correct range by 21 months);

United States v. Gonzalez, 253 F. App’x 387, 388 (5th Cir. 2007) (substantial

rights not affected where sentence exceeded correct range by 12 months); United

States v. Jones, 489 F.3d 679, 682 (5th Cir. 2007) (regardless of third-prong

analysis, defendant’s receiving sentence 23 months above erroneous sentencing

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range did not affect fairness, integrity, or public reputation of judicial

proceedings); United States v. Severin, 221 F. App’x 299, 303 (5th Cir. 2006)

(substantial rights affected because defendant’s sentence three months in excess

of correct range); Jones, 444 F.3d at 438-39 (based on the record, substantial

rights not affected where district court could reasonably impose maximum

statutory sentence, 63 months greater than top of range); United States v.

Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005) (defendant’s substantial rights

affected by erroneous 16-level increase to offense level).

Here, the majority effectively maintains that any sentence erroneously

outside the correct advisory Guidelines sentencing range affects defendant’s

substantial rights. That position will hamstring our court’s discretionary role

in future sentencing cases under plain-error review, thus guaranteeing that the

fourth prong will be “illusory”.

Moreover, the majority’s interpretation of plain-error review in this

instance puts an unnecessary and excessive burden upon district courts. As

noted, in setting a low threshold for reversible plain error, the majority

undermines a basic premise of plain-error review: “to induce the timely raising

of claims and objections, which gives the district court the opportunity to

consider and resolve them”. Puckett, 129 S. Ct. at 1428. That contemporaneous-

objection rule is intended to prevent defendants from “sandbagging” the district

court so that it can correct errors as they occur. John, 597 F.3d at 292 (Smith,

J., dissenting) (quoting Puckett, 129 S. Ct. at 1429). Today’s ruling, however,

encourages “defendants to refrain from noticing sentencing error in the district

court, secure in the knowledge that any forfeited error that arguably lengthens

a sentence will be corrected on appeal, resulting in resentencing and a second

bite at the apple”. Id. It is axiomatic that forfeiting an objection has serious

consequences, but the majority chooses to ignore them. Defendants should not

appear on a sentencing or re-sentencing merry-go-round before the district

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courts; given the high volume of sentencings those courts face, they “should be

able to count on this court faithfully to apply the strict plain-error standard to

forfeited error”. Id. Again, meeting all four plain-error prongs is supposed to be

difficult. See Puckett, 129 S. Ct. at 1429.

III.

For these reasons, I respectfully dissent from Mudekunye’s being

resentenced and urge our court to consider en banc the proper (more simple and

flexible) application of post-Olano and post-Booker plain-error review.

37