United States v. Mark A. White

EASTERBROOK, Circuit Judge,

dissenting from the decision not to hear these appeals en banc.

These cases pose one of the transition problems in implementing United States v. Booker, — U.S. —, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). What happens when there has not been a violation of the sixth amendment — because, for example, the only consideration that raised the sentence is a prior conviction, see Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), or the defendant has waived his right to submit any dispute to the jury, see Shepard v. United States, — U.S. —, 125 S.Ct. 1254 , 1263 n. 5, 161 L.Ed.2d 205 (2005); Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 2541 , 159 L.Ed.2d 403 (2004)—but the district judge treated the Guidelines as conclusive? Booker knocks out 18 U.S.C. § 3553 (b)(1), which makes the system mandatory, for all prosecutions, not just those in which there is a constitutional problem. See 125 S.Ct. at 768-69. This holding applies to all cases on direct appeal. The opinions in Castillo and White put these propositions together and hold that cases in which there is no sixth amendment problem (and no misapplication of the Guidelines either) should be treated just like those in which the Constitution has been violated.

*838 Yet one element of plain-error analysis is whether the shortcoming seriously impairs the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 734-37 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993); Johnson v. United States, 520 U.S. 461, 468-69 , 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997); Jones v. United States, 527 U.S. 373, 394-95 , 119 S.Ct. 2090 , 144 L.Ed.2d 370 (1999); United States v. Vonn, 535 U.S. 55, 62-63 , 122 S.Ct. 1043 , 152 L.Ed.2d 90 (2002); United States v. Cotton, 535 U.S. 625, 631-33 , 122 S.Ct. 1781 , 152 L.Ed.2d 860 (2002); United States v. Dominguez Benitez, 542 U.S. 74 , 124 S.Ct. 2333, 2339-40 , 159 L.Ed.2d 157 (2004). This condition is not satisfied when the district judge complied with all requirements of the Constitution, statutes, and rules. See United States v. Gonzalez-Huerta, 403 F.3d 727, 736-39 (10th Cir.2005) (en banc).

United States v. Paladino, 401 F.3d 471 (7th Cir.2005), says that a sentence lengthened because of a constitutional violation meets the plain-error standard; more time in prison, caused by a constitutional wrong, is unjust. One cannot say the same when there has been no violation of the Constitution (or, indeed, of any other legal norm). The Sentencing Guidelines are not themselves an engine of wrong. They emphasize candor and consistency in sentencing and have been applied about a million times since 1987. Schriro v. Summerlin, 542 U.S. 348 , 124 S.Ct. 2519 , 159 L.Ed.2d 442 (2004), holds that sentences imposed in violation of another rule derived from Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), are not so likely to be unjust that the new rule must apply retroactively on collateral review, and we held in McReynolds v. United States, 397 F.3d 479 (7th Cir.2005), that Booker likewise does not govern on collateral review. If this is so when the sixth amendment has been violated, what can be the source of injustice when it has been obeyed?

Although the plain-error standard differs from the standard for retroactive application, whether an error gravely undermines the reliability of the outcome is common to the two inquiries. Given Schriro and opinions such as Edwards v. United States, 523 U.S. 511 , 118 S.Ct. 1475 , 140 L.Ed.2d 703 (1998), and United States v. Watts, 519 U.S. 148 , 117 S.Ct. 633 , 136 L.Ed.2d 554 (1997), it would be unsound to assert that applying the Guidelines is so problematic that relief is apt under the plain-error standard. When every statute has been enforced accurately and constitutionally, the fairness, integrity, and public reputation of judicial proceedings are unimpaired.

The disposition of United States v. Fanfan, which was consolidated with Booker , does not bear on this issue. The remedial majority’s penultimate paragraph says, in part:

In respondent Fanfan’s case, the District Court held Blakely .applicable to the Guidelines. It then imposed a sentence that was authorized by the jury’s verdict — a sentence lower than the sentence authorized by the Guidelines as written. Thus, Fanfan’s sentence does not violate the Sixth Amendment. Nonetheless, the Government (and the defendant should he so choose) may seek resentencing under the system set forth in today’s opinions.

125 S.Ct. at 769. This does not mean that applying the Guidelines is wrongful even when the judge does not resolve any factual dispute. Quite the contrary. The reason that Fanfan’s sentence did not violate the sixth amendment was precisely that it did violate the Sentencing Reform Act of 1984 and the Sentencing Guidelines. The jury found that Fanfan had distributed 500 or more grams of cocaine. How much more? *839 The judge concluded (on a preponderance of the evidence) that Fanfan was culpable for 2.5 kilograms of powder cocaine plus 262 grams of crack. The top of the Guideline range for 500 grams was 78 months; the range for Fanfan’s relevant conduct (including his role as a leader of a criminal organization) was 188 to 235 months.. To avoid any constitutional problem, the judge sentenced Fanfan to 78 months’ imprisonment. The United States appealed to the first circuit and filed a petition for certio-rari before judgment, which the Court granted. So the case was before the Court on the prosecutor’s complaint, not Fanfan’s; the remand occurred because the sentence was too low, not because it might have been too high; plain-error review played no role in the decision.

Applying Paladino to no-constitutional-error situations is inconsistent with the reason the remedial opinion in Booker made the Guidelines advisory across the board. The alternative was asymmetric: defendants would have been free to argue for less time in every ease, but when the top of the Guideline range was favorable defendants could have waived their sixth amendment rights and preserved that benefit. The Court stated that Congress would have been unlikely to adopt a one: sided approach. 125 S.Ct. at 768. Yet the approach taken in Castillo and White implements only the defendant-favoring portion of the Court’s remedy. No defendant is placed at risk of a higher sentence by a limited Paladino remand. (It would be anachronistic to reply that the prosecutor, too, could have appealed. Recall that this is plain-error review, which is to say that neither side noticed this issue until after the time for filing a notice of appeal had expired. Until Booker a prosecutor would have had no reason — and no statutory authority — to appeal from a sentence that fell within a properly calculated Guideline range. See 18 U.S.C. § 3742 (b).) That both sides have enjoyed the even-handed application of a symmetric Guidelines system is still another reason to say that no injustice has occurred.