United States v. Louis F. Pirani

HEANEY, Circuit Judge,

dissenting.

This is not a plain error case—one in which the defendant failed to preserve a Sixth Amendment sentencing error. 7 *556 Rather, the defendant here preserved the error by way of objections he lodged with the district court. It follows that under United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), we have no alternative but to remand this matter for resentencing under a regime that passes constitutional muster.

Louis F. Pirani, a former Crittenden County Sheriffs Deputy, was charged with and convicted of making false statements to federal authorities 8 who were investigating allegations that Crittenden deputies were keeping seized drug money for personal use. The United States Sentencing Guidelines (hereinafter Guidelines) mandated a base offense level of 6 for false statement convictions. The Guidelines also contained a cross-reference provision that required the sentencing court to apply another, higher guideline offense level if the facts of the crime more aptly fit another guideline. Based on the facts adduced at trial (but not proven to a jury), the district court determined that Pirani’s false statement conviction was more akin to obstruction of justice. Thus, employing the cross-reference provision, the district court applied the obstruction of justice Guidelines offense level of 12 and effectively increased Pirani’s sentencing range from 0 to 6 months to 10 to 16 months.

At sentencing, there was extended discussion of whether cross-reference to the obstruction of justice guideline was proper. First, Pirani objected to the district court sentencing him for obstruction of justice because that crime was not alleged in the indictment. (Sent. Tr. at 16-17.) The government responded by stating that the facts necessary to convict Pirani of obstructing justice, in violation of 18 U.S.C. § 1505 , were in the indictment, even though that substantive crime was not charged. 9 (Id. at 24-25.) Pirani maintained that he could not have been convicted of obstruction of justice based on the facts in the indictment. (Id. at 30.) The court then determined that it would use the obstruction of justice cross-reference, and stated that “all objections are preserved for purposes of appeal.” (Id. at 33.) Pirani then reiterated his objection to being sentenced as if he were convicted of the substantive crime of obstruction of justice, specifically arguing that “the elements [of § 1505] have not been met.” (Id. at 35.)

At another point in the sentencing proceeding, the district court was pondering the application of certain sentence enhancements. Pirani acknowledged that, pursuant to the Guidelines, the district court was required to use the preponderance-of-the-evidence standard in determining the factual predicate for enhancements. He nonetheless asked the court to employ the beyond-a-reasonable-doubt standard for any determinations that would result in the imposition of a prison sentence. (Id. at 21.)

This court has consistently held that a defendant preserves his Sixth Amendment issue for review by objecting to the factual predicate for Guidelines enhancements. In United States v. Coffey, 395 F.3d 856 (8th Cir.2005), the defendant was convicted of conspiracy to distribute or possess with intent to distribute 50 or more grams of crack. His presentence report recommended increasing his offense level (and *557 thus, his mandatory sentencing range) as if he were responsible for 2.7 kilograms of crack. The jury did not find him responsible for this higher amount, nor did he admit responsibility for it. He objected to the presentence report’s drug quantity calculation, arguing that “there was insufficient evidence to calculate any quantity of drugs for his offense.” Id. at 859. We held that this objection sufficiently preserved the issue for appellate review. Id. at 861.

In United States v. Fox, 396 F.3d 1018 (8th Cir.2005), the defendant was convicted of conspiracy to distribute methamphetamine. The jury found him responsible for between 50 and 500 grams of methamphetamine, but the presentence report attributed roughly 1.8 kilograms to him. He “filed an objection to this recommendation and argued the objection during the sentencing hearing before the district court.” Id. at 1026 . The Fox court did not question the specificity of the defendant’s objection, 10 nor did it cite to Coffey. 11 Nonetheless, it found that the defendant’s objection to the quantity determination “preserved this sentencing issue, and pursuant to Booker , [the defendant] is entitled to a new sentencing proceeding.” Fox, 396 F.3d at 1027 . Similarly, in United States v. Fellers, 397 F.3d 1090 (8th Cir.2005), the defendant was found guilty of conspiracy to distribute and possess with intent to distribute between 50 and 500 grams of methamphetamine. Again, the presentence report suggested increasing , the defendant’s Guidelines offense level based on a drug amount higher than the jury finding, and the defendant objected. Our court remanded the ease for resentencing “because Fellers raised this issue at sentencing,” id. at 1100 , but provided no further elucidation on the nature of his objection.

United States v. Selwyn, 398 F.3d 1064 (8th Cir.2005), and United States v. Sdoulam, 398 F.3d 981 (8th Cir.2005), followed with similar results. The defendant in Selwyn was convicted of a drug offense, but “[n]o drug quantity was stated in the indictment or found by the jury.” Selwyn, 398 F.3d at 1066 . He objected to the basis for the district court’s drug quantity findings, which we held preserved the Sixth Amendment issue for appeal. Id. at 1067 . In Sdoulam , a defendant convicted of two methamphetamine-related offenses objected to the district court’s calculation of pseudoephedrine .quantity. Citing Coffey and Fox , the court remanded the case for resentencing, noting that the “circuit has held that when a defendant objects to a District Court’s determination of drug quantity at sentencing, the defendant preserves a Booker-based challenge to his sentence and is entitled to a new sentencing proceeding.” Sdoulam, 398 F.3d at 995 .

The majority now disregards what I and several other judges on the court believe to be settled law in this circuit, and asserts that cases such as Coffey and Fox are “inconsistent with” a footnote in United *558 States v. Diaz, 296 F.3d 680 , 683 n. 4 (8th Cir.2002) (en banc), and thus “they are not controlling precedent.” Ante at 550. This comes as somewhat of a surprise. The court en banc can alter the state of our circuit law and overturn prior decisions, but we ought not rely on a footnote to accomplish this.

The majority contends that Diaz held that “a sufficiency-of-proof objection did not preserve a claim of Apprendi error.” Ante at 550 (citing Diaz, 296 F.3d at 683 n. 4). In Diaz , the defendants were charged with and convicted of several offenses related to a drug conspiracy. The jury did not make any findings as to drug quantity, yet the district court sentenced the defendants to terms that were beyond the statutory maximum, 12 which the defendants contended violated Apprendi’s rule that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). Because the defendants did not raise their Sixth Amendment claims before the district court, our court’s review was limited to plain error. Diaz asserted that he had raised the issue before the district court, but in a footnote our court disagreed:

Diaz contends that he did in fact raise Apprendi issues before the district court at sentencing, thus entitling him to de novo review. It appears to us, however, that his contention in the district court was not an Apprendi-style claim, but rather a claim that the government did not prove all the elements of the crime listed in the indictment.

Diaz, 296 F.3d at 683 n. 4 (second emphasis added).

Obviously, a claim that the government has failed in proving the elements of an offense is quite different than a defendant’s challenge to his sentence. Drug quantity typically is not an “element of the crime” that the government is required to prove to a jury, and was not one in Diaz. See, e.g., United States v. Serrano-Lopez, 366 F.3d 628, 638 (8th Cir.2004) (“It is the statute, not the indictment, that sets the elements of the offense that must be proven beyond a reasonable doubt. As we have explained, drug quantity is not such an element unless the quantity can and does lead to the imposition of a sentence greater than the otherwise applicable statutory maximum.”); Diaz, 296 F.3d 680 (2002), Gov’t Br. at 45, available at 2001 WL 34096384 (affirming that there was no jury finding with respect to drug quantity in Diaz’s case). Thus, when the appellate court described Diaz’s objection as a challenge to the government’s proof regarding the elements of the offense, his objection before the district court must have involved a matter different from the Sixth Amendment argument he pursued on appeal, as that issue was rooted in the district court’s drug quantity findings. Footnote 4 in Diaz does not stand as a broad prohibition on preserving Sixth Amendment sentencing claims by way of an objection to the government’s proof at sentencing. It has not been cited for that proposition in our circuit or any other, and the majority’s characterization as such today is error. 13

*559 The defendants in Coffey, Fox, Fellers, Selwyn, and Sdoulam all consistently challenged the proof related to the district court’s drug quantity calculations and the resultant increase in their sentences. 14 In so doing, these defendants apprised the district court that it could not increase their sentences on the basis of admitted drug-related conduct. An objection to a presentence report’s basis for a sentence enhancement informs the court that it must “rule on the dispute.” Fed. R.Crim.P. 32(i)(3)(B). When that objection challenges the evidence supporting an enhancement, it is incumbent upon the district court to rule on whether the disputed evidence is sufficient to support the enhancement. To my mind, such an objection notifies the district court that it is then required to make sentencing determinations in a manner that comports with the law; that is, not imposing sentence enhancements except where the defendant admits to the enhancement’s factual basis or the government proves the facts supporting the enhancement to a jury beyond a reasonable doubt.

I am not alone in suggesting that a challenge to the basis for a sentence enhancement preserves the Sixth Amendment sentencing issue for appeal. In United States v. Akpan, 407 F.3d 360 , 2005 WL 852416 (5th Cir. Apr.14, 2005), the Fifth Circuit was faced with a similar issue in a case involving a defendant, Okoro, who was convicted of mail fraud, healthcare fraud, and filing false tax returns. Okoro argued that his sentence violated Booker . The government contended that Okoro had failed to preserve the issue through a sufficient objection in the district court. The Fifth Circuit disagreed with the government:

Okoro did not ... fail to preserve his Booker challenge to the district court’s loss calculation. Our review of Okoro’s pre-sentencing objections to the Presen-tence Investigation Report (“PSR”) and his objections during his sentencing reveal that Okoro repeatedly objected to the district court’s determination of a range of financial loss between five and ten million dollars on the ground that that figure had not been proven at trial. Okoro also consistently urged that the district court confine its determination of loss to the amount alleged in the *560 indictment-. Although Okoro never explicitly mentioned the Sixth Amendment, Apprendi , or Blakely until his [Federal Rule of Appellate Procedure] 28(j) letter, we are satisfied that his objections adequately apprised the district court that Okoro was raising a Sixth Amendment objection to. the loss calculation because the government did not prove to the jury beyond a reasonable .doubt that the loss was between five to ten million dollars.

Akpan, 407 F.3d at 376 , 2005 WL 852416, at *11 (footnote omitted); accord United States v. McDaniel, 398 F.3d 540, 546-47 (6th Cir.2005) (noting that a defendant may preserve a Sixth Amendment sentencing issue by objecting to application of “various sentencing enhancements”); United States v. Kosinski, 2005 WL 647777 , at *8 (6th Cir. Mar.22, 2005) (unpublished decision) (“Although Kosinski did not raise a Sixth Amendment objection in the sentencing court, he did object to the factual determinations made by the judge. Before this court, he filed briefs with Sixth Amendment arguments based first on Blakely v. Washington, — U.S. -, 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), and then on Booker , as those cases were decided. We are satisfied that the objection below to judicial fact-finding preserved the Sixth Amendment issue for review.”); United States v. Story, 125 Fed.Appx. 646, 653 (6th Cir.2005) (unpublished decision) (finding a defendant’s argument that a Guidelines enhancement for possession of a firearm should not apply because it was based on unreliable trial testimony was sufficient to preserve the Sixth Amendment sentencing issue); cf. United States v. Garcia, 405 F.3d 1260 , 2005 WL 845532 (11th Cir. Apr.13, 2005) (holding that a defendant adequately preserved Sixth Amendment sentencing claim by objecting to the district court’s determination of a drug quantity larger than the jury finding).

In short, Coffey, Fox, and their progeny are correctly decided because the Sixth Amendment sentencing error was preserved in each case. It was also preserved here. After being convicted of making false statements, Pirani objected to being sentenced as if he were convicted of obstructing justice because that crime was not alleged in the indictment. He further argued that the district court should employ the beyond-a-reasonable-doubt standard at sentencing, and finally asserted that the government had not met its burden of proving the elements of obstruction of justice. What more could Pirani have done? He challenged the increase in his sentence based on uncharged conduct, and implored the district court not to send him to prison based on facts not proven beyond a reasonable doubt. Even the Fifth and Eleventh Circuits, which the majority sees fit to follow in its plain-error analysis of Booker , would likely have found Pirani’s objections sufficient to preserve the matter for review. See United States v. Akpan, 407 F.3d 360, 376 , 2005 WL 852416, at *11 (5th Cir. Apr.14, 2005) (finding objections to the district court’s loss calculation were sufficient to preserve a Booker claim despite no mention of Apprendi, Blakely, or the Sixth Amendment before the district court); United States v. Dowling, 403 F.3d 1242, 1245 (11th Cir.2005) (holding that a defendant may preserve his Sixth Amendment sentencing issue by objecting to the imposition of a sentence based on evidence not proven to a jury beyond a reasonable doubt).

The majority accepts my assessment of the record with respect to Pirani’s objections, but finds them insufficient “[b]e-cause Pirani did not couple this statement with a specific reference to Apprendi or Booker or the Sixth Amendment.” Ante *561 at 550. Nothing in Booker suggests that magic words must be used; the substance of the objection is what is important. Certainly, we could not have expected Pirani to lodge an objection based on Blakely or Booker with the district court, as neither of those eases were decided when Pirani was sentenced. Moreover, at that time, the law of our circuit was that Apprendi did not require enhancements in a mandatory guidelines system to be proven to a jury beyond a reasonable doubt. See Diaz, 296 F.3d at 682 (“Use of judicially determined drug quantity as a basis for sentencing is permissible, however, so long as the defendant’s sentence does not exceed the statutory maximum sentence available for an indeterminate quantity of the drug, the offense simpliciter.”); see also United States v. Alvarez, 320 F.3d 765, 766-67 (8th Cir.2002) (noting that Diaz “squarely rejected” the view that Ap-prendi required facts that increase a defendant’s guideline range to be proven to a jury beyond a reasonable doubt). Particularly with regard to Pirani’s request to be sentenced on the basis of facts found beyond a reasonable doubt and his objection to being sentenced on the basis of a crime not charged in the indictment, 15 this is entirely consistent with Federal Rule of Criminal Procedure 51(b)’s statement that “[a] party may preserve a claim of error by informing the court ... of the action the party wishes the court to take.”

The majority seems to feel that by strictly requiring defendants to assert Sixth Amendment sentencing objections with technical precision, it is staying true to Booker’s requirement that reviewing courts must apply “ordinary prudential doctrines, determining, for example, whether the issue was raised below, and whether it fails the ‘plain-error’ test.” Booker, 125 S.Ct. at 769 . I doubt this approach will have the desired effect, at least at the district court level.

The more stringent prerequisites imposed by [the plain error rule], as compared to [the harmless error rule] are designed to encourage a defendant to raise objections during the proceeding where they might be corrected, rather than strategically withhold an objection as a basis of appeal. By contrast, to require a defendant to raise all possible objections at trial despite settled law to the contrary would encourage frivolous arguments, impeding the proceeding and wasting judicial resources.

United States v. Baumgardner, 85 F.3d 1305, 1308-09 (8th Cir.1996) (citation omitted); see also United States v. Gonzalez-Huerta, 403 F.3d 727, 750 , 2005 WL 807008, at *19 (10th Cir.2005) (en banc) (Briscoe, J., concurring in part and dissenting in part) (characterizing as “disingenuous” and “unfair” the practice of applying plain error review to Booker claims because it was “unreasonable in my view to conclude that Gonzalez-Huerta could and should have raised the issue below”).

The stated goal of the Guidelines was to create “a system that diminishes sentencing disparity.” 16 Booker, 125 S.Ct. at 759 . *562 This goal is undermined when circuits apply different standards in determining whether a defendant sufficiently preserved his Sixth Amendment sentencing challenge in the district court, and is further undermined when circuits differ on the question of how to deal with Booker claims on plain error review. Hopefully, the Supreme Court will promptly resolve these differences, and do so in a manner true to the essence of Booker’s concern for basic rights of the defendant under the Sixth Amendment.

. If this were a plain error case, I would concur without reservation in Judge Bye's *556 thoughtful dissent.

. 18 U.S.C. § 1001 (a).

. Of course, this argument would fail post- Booker, as the Supreme Court has now made clear that facts alleged in the indictment but not proven to a jury beyond a reasonable doubt are not sufficient to support a sentence enhancement under a mandatory guidelines system. See Booker, 125 S.Ct. at 756 .

. Although not contained in the appellate court decision, a review of the district court sentencing transcript in Fox reveals that the defendant objected to use of the preponderance-of-the-evidence standard for drug quantity determinations and questioned the veracity of the witnesses supporting a drug quantity larger than the jury's finding.

. The majority states that the Fox and other panels have “followed” the decision in Coffey. Ante at 550. This is technically true, but may be misinterpreted. Fox followed Coffey, in the sense that it was issued after Coffey. Nothing in Fox , however, suggests that the decision was based on Coffey; indeed, there is not a single citation to Coffey or any other case (save Booker itself) in support of the Fox panel's preservation-of-error analysis.

. After the Supreme Court’s decision in Blakely v. Washington, - U.S. -, 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), the term "statutory maximum” took on something of a different meaning: the maximum guideline sentence authorized by jury-proven or admitted conduct. Blakely, 124 S.Ct. at 2537 . In Diaz , the issue involved the maximum sentence authorized by the statutes of conviction. Diaz, 296 F.3d at 682 .

. In United States v. Palmer, 297 F.3d 760 (8th Cir.2002), a defendant attempted to raise *559 an Apprendi claim in his second appeal, and claimed he had preserved the issue by arguing in his first appeal that the district court erred in its drug quantity determinations. While our court disagreed, I do not believe Palmer stands for the proposition that an evi-dentiary challenge is insufficient to preserve a Sixth Amendment sentencing claim. First, the issue in Palmer was waiver, rather than forfeiture, of a claim. More importantly, though, in the defendant's first appeal, we limited our remand to resentencing without the imposition of an erroneously applied enhancement that was unrelated to drug quantity. See United States v. Jones, 160 F.3d 473, 482-83 (8th Cir.1998) (remanding the Palmer defendant's case for resentencing without the imposition of a role-in-the-o£fense enhancement). Thus, the Apprendi issue the defendant attempted to raise in his second appeal was not available for review. See, e.g., United States v. Behler, 187 F.3d 772, 776-77 (8th Cir.1999) (refusing to consider the defendant's challenge to his sentence when issues related to it were not within the scope of the court's remand).

. United States v. Sayre, 400 F.3d 599 , 600-01 & n. 3 (8th Cir.2005), has no impact on Pirani's case because the panel did not decide any matters related to what type of objection preserves Sixth Amendment sentencing issues. In contrast, each of these cases, like Pirani's, involved Sixth Amendment sentencing error: increases in the defendant's sentence based on conduct that was neither admitted nor proven to a jury. I express no opinion here on whether the result would be the same if the error was simply that the district court sentenced the defendant under the belief that the Guidelines were mandatory, but imposed no enhancements.

. At oral argument, counsel for the government agreed with my suggestion that an objection to being sentenced for matters not charged in the indictment is a Sixth Amendment argument.

. I have noted on several occasions my personal view that while the Guidelines may have led to greater sentencing uniformity among district judges, they have not accounted for the significant disparities that exist in the charging, prosecuting, and sentencing decisions made by the executive branch of our criminal justice system. See generally Gerald W. Heaney, The Reality of Guidelines Sentencing, 44 St. Louis L.J. 293 (Spring 2000); Gerald W. Heaney, The Reality of Guidelines Sentencing: No End To Disparity, 28 Am.Crim. L.R. 161 (1991).