United States v. Anthony Gerald White, Sr.

DUNCAN, Circuit Judge,

concurring in part and dissenting in part:

I thank Chief Judge Wilkins for his fine opinion, and appreciate the difficulty of the issues this and other courts are grappling with in the wake of the Supreme Court’s decision in United States v. Booker, - U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). However, I am troubled by the majority’s reliance on a distinction between the two manifestations of error dis *226 cussed in Booker which the Supreme Court ultimately does not accept. 1 Because I believe that the Remedial Opinion in Booker does not recognize that distinction, and the majority opinion fails to clearly articulate another, I respectfully dissent from Part III. 2 The Error Opinion of Booker makes clear that in the wake of Blakely, defendants sentenced in federal court had a viable constitutional challenge to their sentences under the Sixth Amendment if the judge found facts that increased their sentence beyond that authorized by the jury’s verdict alone. However, the Supreme Court declined to remedy the constitutional deficiency in purely Sixth Amendment terms. Instead of engrafting onto the existing system the Sixth Amendment jury trial requirement, as might have appeared to be the remedy suggested by the parameters of the error, the Remedial Opinion chose to strike 18 U.S.C. § 3553 (b)(1) which makes the Guidelines mandatory. In adopting this remedy, the Supreme Court emphasized what it had also made clear in defining the error: that “the existence of § 3553(b)(1) is a necessary condition of the constitutional violation.” Booker, 125 S.Ct. at 764 . In so doing, and in rejecting the argument of the United States that the advisory Guidelines regime be limited to “any case in which the Constitution prohibits judicial fact finding,” the Court created a broader category of defendants eligible for resentencing than those for whom judicial fact finding increased their sentence. Id.

Following Booker , this court has decided that one segment of the total class of defendants authorized to seek resentenc-ing can meet the stringent requirements of showing plain error and are therefore entitled to resentencing. In United States v. Hughes, 401 F.3d 540 (4th Cir.2005), we held that defendants whose maximum sentences as authorized by the jury were less than that imposed by the judge based on facts found pursuant to the mandatory sentencing regime demonstrate prejudice. Id. at 548-89 . Hughes specifically and appropriately states that it does not purport to address the issue of whether defendants sentenced under a mandatory regime could satisfy the plain error standard, as that issue was not before the court. Id. at 551 n. 8. Significantly, however, we also noted that the record in Hughes did not provide “any indication of what sentence the district court would have imposed had it exercised its discretion under § 3553(a), treating the guidelines as merely advisory.” Id. at 556. In determining whether the district court error warranted reversal, the court acknowledged that “[w]e simply do not know how the district court would have sentenced Hughes had it been operating under the remedial scheme announced in Booker.” Id. at 556 n. 14.

Although the error initially presented in Booker arose under the Sixth Amendment, the remedy provided was both broader and crafted to address its condition prece *227 dent — the mandatory character of the Guidelines. The distinction the majority creates here in my view fails to adequately reflect or address that underlying error, or the fact that Booker creates one class of defendants going forward. Because of that, I am unable to accept the majority’s rationale for treating White’s claim differently from Hughes’s. Because Hughes concluded that one group of defendants sentenced under the now invalid § 3553(b)(1) must be resentenced, and I am unpersuaded by the majority’s basis for distinguishing the remaining defendants, I am compelled to conclude that the latter subset, including White, must be remanded for resentencing as well. 3 See United States v. Ruhe, 191 F.3d 376, 388 (4th Cir.1999) (noting panels of this court are “bound by prior precedent from other panels in this circuit absent contrary law from an en banc or Supreme Court decision”).

. I refer, of course, to the distinction between the error of treating the Guidelines as mandatory in which a judge finds facts that increase the defendant's sentence and the error of treating the Guidelines as mandatory in which judicial fact finding does not occur. Referring to the former as "Sixth Amendment error,” a prior decision of this court notes: "after Booker , there are two potential errors in a sentence imposed pursuant to the pre- Booker mandatory guidelines regime: a Sixth Amendment error, which Hughes raised, and an error in failing to treat the guidelines as advisory, which Hughes does not raise.” United States v. Hughes, 401 F.3d 540, 552 (4th Cir.2005).

. I use the term "Remedial Opinion” to refer to the portion of the opinion authored by Justice Breyer, and the "Error Opinion” to refer to that authored by Justice Stevens.

. This, of course, would also be consistent with the Supreme Court’s treatment of Booker and the companion case, Fanfan, in which there was no judicial fact finding.