Opposition Brief — Toepfer v. United States (No. 08-469)

Supreme Court brief2009

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

FILED

DEC 10 2008

| OFFICE OF THE CLERK ;

Jn the Supreme Court of the Gnited States

DEVON HOWARD TOEPFER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

GREGORY G. GARRE

Solicitor General

Counsel of Record

MATTHEW W. FRIEDRICH

Acting Assistant Attorney

General

J. CAM BARKER

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court violated petitioner’s

Fifth and Sixth Anmiendment rights when, in determining

his sentence, it relied on relevant conduct that under'ay

counts on which he had been acquitted.

2. Whether the district court committed reversible

plain error because it failed to consider the factors un-

der 18 U.S.C. 3553(a) before imposing sentence.

TABLE OF CONTENTS

Page

SD INNS § a's x Sie cas Sie eee ee ee ee ]

DE 9 5 cc esate ok ow eee eae aera n eee ee 1

EP eee rere re rey err 1

Ss. cu Cyd anes We ween eee eek ee Owe eee 5

CII ad's 5:0.c'h Sie wurde eae washes aw ee a eee ee 14

TABLE OF AUTHORITIES

Cases:

Armstrong v. United States, 1278S. Ct. 109 (2006) ....... 9

Ashworth v. United States, 1288. Ct. 1738 (2008) ...... 10

Cunningham v. California, 549 U.S. 270 (2007) ....... 6, 7

Dorcely v. United States, 127 S. Ct. 691 (2006) .......... 9

Douglas v. United States, 128 8. Ct. 1875 (2008) ........ 10

Edwards v. United States, 127 S. Ct. 1815 (2007) ........ 9

Freeman v. United States, 128 S. Ct. 1750 (2008) ........ 9

Gall v. United States, 128 S. Ct. 586 (2007) ............ 10

Hurn v. United States, 128 S. Ct. 1737 (2008) ........... 9

Lynch v. United States, 1278. Ct. 89 (2006) ............ 9

Magluta v. United States, 126 S. Ct. 2966 (2006) ........ g

Mercado v. United States, 128 S. Ct. 1736 (2008) ....... 10

Morris v. United States, 128 S. Ct. 2502 (2008) ......... 10

Rita v. United States, 1278S. Ct. 2456 (2007) ..... 5. 7,9, 12

Rodriguez v. United States, 545 U.S. 1127 (2005) ....... 12

Smith v. Massachusetts, 543 U.S. 462 (2005) ........... 10

Smith v. United States, 128 S. Ct. 1737 (2008) .......... 10

United States v. Ashworth, 247 Fed. Appx. 409 (4th

Cir. 2007), cert. denied, 128 S. Ct. 1738 (2008) ........ 8

(IIT)

Cases—-Continued: Page

United States v. Booker, 543 U.S. 220 (2005) ...... 4,5, 6, 7

United States v. Dominguez Benitez, 542 U.S. 74

RS ects ir Ee earn ROO as he ap 13

United States v. Dorcely, 454 F.3d 366 (D.C. Cir.),

cert. denied, 127 S. Ct. G91 (2006) ................... 9

United States v. Duncan, 400 F.3d 1297 (11th Cir.),

cert. denied, 546 U.S. 940 (2005) .................. 5,9

United States v. Farias, 469 F.3d 393 (5th Cir. 2006),

cert. denied, 1278S. Ct. 1502 (2007) .................. 9

United States v. Gobbi, 471 F.3d 302 (ist Cir. 2006) ...... 9

United States v. High Elk, 442 F.3d 622 (8th Cir.

ES oto a oe oe en ee re ee ee a8 9

United States v. Hurn, 496 F.3d 784 (7th Cir. 2007),

cert. denied, 128 S. Ct. 1737 (2008) .................. 8

United States v. Jimenez, 513 F.3d 62 (3d Cir.), cert.

co RR a) an 8

United States v. Johnson, 534 F.3d 690 (7th Cir.

IRI RA rare eee foahataainie es Oma RcE ROLF Rt Aa Sa 1]

United States v. Kirchhof, 505 F.3d 409 (6th Cir.

Dh aol yi ee erO 2 O bs gue kee Bl

United States v. Magallanez, 408 F.3d 672 (10th Cir.),

cert. denied, 546 U.S. 955 (2005) ... 2... cee cece 9

United States v. Mendez, 498 I.3d 423 (6th Cir. 2007) .... 8

United States v. Mercado, 474 F.3d 654 (9th Cir.

2007), cert. denied, 128 S. Ct. 1736 (2008) ............ 9

United States v. Rodriguez, 398 F.3d 1291 (11th Cir.),

cert. denied, 545 U.S. 1127 (2005) .................. 13

United States v. Smith, 440 F.3d 704 (5th Cir. 2006) .... 11

Cases—Continued: Page

United States v. Vaughn, 430 F.3d 518 (2d Cir. 2005),

cert. denied, 547 U.S. 1060 (2006) ...............0.... 9

United States v. Watts, 519 U.S. 148 (1997) ......... 5, 6,8

United States v. White, 503 F.3d 487 (2007) ........... 8,9

Wemmering v. United States, 128 S. Ct. 1737 (2008) .... 10

Constitution and statutes:

U.S. Const.:

EE re 4,5,10

mene apn (AGUS .. ££... we eee eee ees 10

ee cece ede sev eunees 4,5, 6

SE ES 2

RE ES a ee 2

Ne nw wkd aecewnsee new wann 2

Ee 5, 10, 11, 12,13

EE EEE a

eS 2

ee ce eee sce s ccc cennce: 3

Ne cae vee a ede ces seeveucees 3

EE oF

Jn the Supreme Court of the Gnited States

No. 08-469

DEVON HOWARD TOEPFER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-13a)

is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

July 9, 2008. The petition for a writ of certiorari was

filed on October 7, 2008. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Florida, petitioner

was convicted of several crimes arising from his involve-

ment in a conspiracy to grow and distribute marijuana.

Pet. App. 2a, 14a-15a. He was sentenced to 140 months

(1)

of imprisonment. /d. at 16a. The court of appeals af-

firmed. Jd. at la-1l3a.

1. From 1994 to 2003, petitioner and several co-con-

spirators operated ten marijuana “grow houses” across

southern Florida. Petitioner funded and oversaw the

operation, recruited individuals to the conspiracy, and

taught them how to grow marijuana. Presentence Re-

port 11 4-15, 21, 22 (PSR). After a grand jury began to

investigate the conspiracy, petitioner also gave diaze-

pam (Valium) pills to two co-conspirators who had been

called to testify so that they could take the pills before

testifying. Jd. 9 15.

On March 29, 2005, a grand jury returned a 15-count

superseding indictment against several of the conspira-

tors. Petitioner was charged with the following: con-

spiring to manufacture and possess with intent to dis-

tribute marijuana, in violation of 21 U.S.C. 846 (Count

1); manufacturing and possessing with intent to distrib-

ute marijuana, in violation of 21 U.S.C. 841 (Counts 2

and 4); attempting to distribute marijuana, in violation

of 21 U.S.C. 841 (Count 3); possessing with intent to dis-

tribute marijuana, in violation of 21 U.S.C. 841 (Count

5); tampering with witnesses, in violation of 18 U.S.C.

1512 (Count 8); distributing diazepam, in violation of 21

U.S.C. 841 (Counts 9 and 10); conspiring to launder

money, in violation of 18 U.S.C. 1956 (Count 11); and

making material false statements to a lending institu-

tion, in violation of 18 U.S.C. 1014 (Counts 14 and 15).

The government also alleged that Counts 1 and 2 in-

volved at least 1000 marijuana plants, which, if proved,

would have mandated a 10-year minimum term of im-

prisonment. 21 U.S.C. 841(b)(1)(A)(vii).

Petitioner went to trial on all counts. On the morn-

ing of the first day of trial and immediately before

swearing in the jury, the district court told petitioner

that “I did want to let you know the lay of the land be-

fore we proceed.” 12/5/05 Tr. 3.' The court then in-

formed petitioner of the sentencing ramifications if the

jury were to find that he was responsible for at least

1000 marijuana plants under Counts 1 or 2: the court

would have “no discretion” as to the sentence, petitioner

would be sentenced to at least ten years of imprison-

ment, and the court “would be bound to any finding that

the jury makes.” /bid. Petitioner said he understood

those consequences. /bid.

A 14-day trial ensued, at the end of which the jury

found petitioner guilty on four counts: conspiring to

manufacture and possess with intent to distribute mari-

juana, in violation of 21 U.S.C. 846 (Count 1); manufac-

turing and possessing with intent to distribute mari-

juana, in violation of 21 U.S.C. 841 (Count 2); and dis-

tributing diazepam, in violation of 21 U.S.C. 841 (Counts

9 and 10). Pet. App. 14a-15a. The jury also found that

Counts 1 and 2 had involved more than 100 but fewer

than 1000 marijuana plants. /d. at 8a. The jury acquit-

ted petitioner on the remaining counts. /d. at 15a.

Petitioner faced a statutory maximum term of im-

prisonment of 40 years each on the two marijuana con-

victions, 21 U.S.C. 841(b)(1)(B), and three years each on

the two diazepam convictions, 21 U.S.C. 841(b)(2). The

Presentence Report recommended that petitioner be

sentenced to a term of 121 to 151 months of imprison-

ment. PSR { 72. That recommendation was based, in

part, on the PSR’s finding by a preponderance of the

evidence that petitioner was responsible for 3744 mari-

' The record contains two transcripts of the December 5, 2005 pro-

ceedings, each with different pagination. The cited material is from the

transcript filed as Dist. Ct. Docket Entry 394.

juana plants. /d. 1 22; PSR Add. 1-2. That finding re-

sulted in a base-offense level of 26. PSR 1 32.*

At sentencing, petitioner objected to the PSR be-

cause it had considered acquitted conduct in determin-

ing his advisory Sentencing Guidelines range. In his

view, that was inconsistent with United States v. Booker,

543 U.S. 220 (2005). 4/19/06 Tr. 6, 19, 30-31. The gov-

ernment disagreed, cited Eleventh Circuit authority

indicating the court’s responsibility to consider relevant

conduct, and emphasized that the court should “consider

the statutory factors within 18 U.S.C. 3558(a), the ten

different factors I am sure the Court is familiar with.”

Id. at 15-16. The court rejected petitioner’s objection,

accepted the PSR’s computation, and, after stating that

it had considered the “pre-sentence report which con-

tains the advisory guidelines and the statutory factors,”

sentenced petitioner within the Guidelines range to 140

months of imprisonment. /d. at 31-32. Petitioner made

no objections to the court’s sentencing procedures. /d.

at 33.

2. The court of appeals affirmed in an unpublished,

per curiam opinion. Pet. App. la-13a. As is relevant

here, the court rejected petitioner’s claim that the dis-

trict court violated his Fifth and Sixth Amendment

rights by considering acquitted conduct at sentencing.

The court of appeals held that “{bleecause the district

court applied the guidelines in an advisory manner

* * * and did not exceed the statutory maximum al-

lowed by the jury verdict, the [sentencing] court did not

violate [petitioner’s] Fifth or Sixth Amendment rights

“ According to the PSR, the jury held petitioner responsible beyond

a reasonable doubt for 661 marijuana plants. PSR 1 22. Had the PSR

based its recommendation on that figure, petitioner’s base-offense level

would have been 22.

by calculating his sentence based on judge-found facts,

including acquitted conduct.” Pet. App. 7a (citing Rita

v. United States, 127 S. Ct. 2456, 2465-2466 (2007);

Booker, 543 U.S. at 264; United States v. Duncan, 400

F.3d 1297, 1304-1305 (11th Cir.), cert. denied, 546 U.S.

940 (2005)). The court also rejected petitioner’s claim,

raised for the first time on appeal, that the district court

failed to consider the sentencing factors in 18 U.S.C.

3553(a). Applying plain-error review, the court assumed

plain error but held that petitioner “cannot show that

the error affected his substantial rights” because he

“points to no evidence in the record showing that if the

district court had explicitly considered the § 3553(a)

factors, the court would have imposed a different sen-

tence.” Pet. App. 9a-10a.

ARGUMENT

1. Petitioner renews his claim (Pet. 7-15) that the

district court violated his Fifth and Sixth Amendment

rights by considering acquitted conduct at sentencing.

The court of appeals correctly rejected that contention,

and its decision accords with the decision of every other

court of appeals. This Court’s review is therefore not

warranted.

a. In United States v. Watts, 519 U.S. 148 (1997)

(per curiam), this Court held that “a jury’s verdict of

acquittal does not prevent the sentencing court from

considering conduct underlying the acquitted charge, so

long as that conduct has been proved by a preponder-

ance of the evidence.” /d. at 157. The Court noted that,

“under the pre-Guidelines sentencing regime, it was

‘well established that a sentencing judge may take into

account facts introduced at trial relating to other

charges, even ones of which the defendant has been ac-

quitted,’” id. at 152 (citation omitted), and that “[t]he

Guidelines did not alter this aspect of the sentencing

court’s discretion,” ibid.

Although Watts specifically addressed a challenge to

consideration of acquitted conduct based on double jeop-

ardy principles, the clear import of the Court’s decision

is that sentencing courts may take acquitted conduct

into account at sentencing without offending the Consti-

tution. See Watts, 519 U.S. at 157. That principle pre-

dated the Sentencing Guidelines, see id. at 152, and it

fully applies to the advisory guidelines put into place by

United States v. Booker, 543 U.S. 220 (2005).

Contrary to petitioner’s contentions (Pet. 10-13), this

Court’s decisions in Booker and subsequent cases con-

firm that there is no constitutional infirmity in a judge

basing the defendant’s sentence, within the statutory

maximum, on conduct that was not found by the jury.

That is true whether the conduct was not charged at all

or whether it formed the basis of charges on which the

jury did not find the defendant guilty.

Booker and cases elaborating on that decision make

clear that, under the advisory Guidelines regime cur-

rently in place, judicial fact-finding to impose a sentence

within the statutory maximum set forth in the United

States Code does not violate the Sixth Amendment. As

the Court explained in Booker:

We have never doubted the authority of a judge to

exercise broad discretion in imposing a sentence

within a statutory range. * * * For when a trial

judge exercises his discretion to select a specific sen-

tence within a defined range, the defendant has no

right to a jury determination of the facts that the

judge deems relevant.

543 U.S. at 233 (citations omitted). This Court reaf-

firmed in Cunningham v. California, 549 U.S. 270

(2007), that “there was no disagreement among the Jus-

tices” that judicial fact-finding under the Sentencing

Guidelines “would not implicate the Sixth Amendment”

if the Guidelines were advisory. /d. at 285. And, in the

Court’s recent decision in Rita v. United States, 127

S. Ct. 2456 (2007), the Court again confirmed that its

“Sixth Amendment cases do not automatically forbid a

sentencing court to take account of factual matters not

determined by a jury and to increase the sentence in

consequence.” /d. at 2465-2466; see id. at 2467 (noting

Booker’s recognition that fact-finding by federal judges

in application of the Guidelines would not implicate the

constitutional issues confronted in that case if the Guide-

lines were not “binding”) (quoting Booker, 543 U.S. at

233).

In discussing the type of information that the sen-

tencing court could consider under an advisory Guide-

lines regime, Booker made no distinction between ac-

quitted conduct and other relevant conduct. See, e.g.,

543 U.S. at 252 (emphasizing the need to consider all

relevant conduct to achieve “the sentencing statute’s

basic aim of ensuring similar sentences for those who —

have committed similar crimes in similar ways”). To the

contrary, after emphasizing the judge’s “broad discre-

tion in imposing sentence within a statutory range,” id.

at 233, Booker cited Watts for the proposition that “a

sentencing judge could rely for sentencing purposes

upon a fact that a jury had found unproved (beyond a

reasonable doubt),” id. at 251.

Consistent with those principles, the district court

was allowed to find petitioner accountable for 3744 mari-

juana plants and to sentence him in accordance with that

finding to 140 months of imprisonment, which is well

within petitioner’s 40-year statutory maximum term of

imprisonment. The court was not precluded from doing

so by the jury’s finding that the government had not

proved beyond a reasonable doubt that the conspiracy

involved 1000 or more marijuana plants. See p. 3, supra.

That finding in no way prevents the sentencing court

from determining that petitioner’s accountability for

1000 or more marijuana plants was established by the

preponderance of the evidence. The preponderance

standard is a lower threshold of proof, and it is entirely

consistent for the judge to find that threshold satisfied

even if the jury found that the proof falls short of elimi-

nating reasonable doubt. Watts, 519 U.S. at 156. The

jury’s finding on drug quantity does not prevent the dis-

trict court from reaching its conclusions at sentencing.

And it would be incongruous to deny a district court the

ability to rely on its findings when the court would be

free to make the same findings if drug quantity had

never been charged at all.

b. This Court’s review is particularly unwarranted

because, as petitioner acknowledges (Pet. 9), there is no

_ conflict among the circuit courts on this issue. Since

Booker, every court of appeals with criminal jurisdiction

has held that a district court may consider acquitted

conduct at sentencing. See United States v. Jimenez,

513 F.3d 62, 88 (8d Cir.), cert. denied, 128 S. Ct. 2460

(2008); United States v. Ashworth, 247 Fed. Appx. 409,

409-411 (4th Cir. 2007), cert. denied, 128 S. Ct. 1738

(2008); United States v. Mendez, 498 F.3d 423, 426-427

(6th Cir. 2007);° United States v. Hurn, 496 F.3d 784,

° After Mendez, the Sixth Circuit issued an opinion adhering to that

ruling but suggested that the defendant petition for rehearing en banc

on the question whether the use of acquitted conduct at sentencing

violates Booker. United States v. White, 503 F.3d 487, 487 (2007). On

November 30, 2007, the Sixth Circuit withdrew the panel opinion in

788 (7th Cir. 2007), cert. denied, 128 S. Ct. 1737 (2008);

United States v. Mercado, 474 F.3d 654, 656-658 (9th

Cir. 2007), cert. denied, 128 S. Ct. 1736 (2008); United

States v. Gobbi, 471 F.3d 302, 314 (1st Cir. 2006); United

States v. Farias, 469 F.3d 393, 399 & n.17 (5th Cir.

2006), cert. denied, 127 S. Ct. 1502 (2007); United States

v. Dorcely, 454 F.3d 366, 371 (D.C. Cir.), cert. denied,

127 S. Ct. 691 (2006); United States v. High Elk, 442

F.3d 622, 626 (8th Cir. 2006); United States v. Vaughn,

430 F.3d 518, 525-527 (2d Cir. 2005), cert. denied, 547

U.S. 1060 (2006); United States v. Magallanez, 408 F.3d

672, 684-685 (10th Cir.), cert. denied, 546 U.S. 955

(2005); United States v. Duncan, 400 F.3d 1297,

1304-1305 (11th Cir.), cert. denied, 546 U.S. 940 (2005).

This Court has also repeatedly denied petitions for a

writ of certiorari raising this issue,’ including after its

recent decisions in Rita, supra, and Gall v. United

White and granted rehearing en banc. See ibid. Because the panel de-

cision in Mendez remains in effect, however, there is no current conflict

in the lower courts, and this Court’s review is not warranted.

* See, e.g., Edwards v. United States, 127 S. Ct. 1815 (2007) (No.

06-8430); Dorcely v. United States, 127 S. Ct. 691 (2006) (No. 06-547);

Armstrong v. United States, 549 U.S. 819 (2006) (No. 05-1548); Lynch

v. United States, 549 U.S. 836 (2006) (No. 05-10945); Magluta v. United

States, 548 U.S. 903 (2006) (No. 05-952).

States, 128 S. Ct. 586 (2007).° There is no reason for a

different result in this case.°

2. Petitioner also seeks review (Pet. 16-23) of the

court of appeals’s application of plain-error review to the

district court’s failure to consider the sentencing factors

under 18 U.S.C. 3553(a). Review of that claim is unwar-

ranted.

a. The court of appeals held that the district court’s

alleged error did not affect petitioner’s “substantial

rights” — and therefore was not reversible — because

petitioner could “point{] to no evidence in the record

showing that if the district court had explicitly consid-

ered the § 3553(a) factors, the court would have imposed

a different sentence.” Pet. App. 10a. As an initial mat-

ter, that holding does not warrant review because the

district court did not fail to consider the Section 3553(a)

factors. The parties’ arguments focused on various

* See, e.g., Morris -v. United States, 128 S. Ct. 2502 (2008) (No.

07-1094); Douglas v. United States, 1288S. Ct. 1875 (2008) (No. 07-8765);

Hurn v. United States, 128 S. Ct. 1737 (2008) (No. 07-605); Mercado v.

United States, 128 S. Ct. 1736 (2008) (No. 07-5810); Smith v. United

States, 128 S. Ct. 1737 (2008) (No. 07-7432); Wemmering v. United

States, 128 S. Ct. 1737 (2008) (No. 07-7739); Ashworth v. United States,

128 S. Ct. 1738 (2008) (No. 07-8076); Freeman v. United States, 128

S. Ct. 1750 (2008) (No. 07-9368).

° Petitioner, relying on this Court's decision in Smith v. Massachu-

setts, 543 U.S. 462 (2005), also argues that the district court violated his

Fifth Amendment due process rights when it imposed the 140-month

sentence despite petitioner’s “reliance on the trial court’s plea-related

advice.” Pet. 13. Smith, however, spoke only to the Fifth Amendment’s

Double Jeopardy clause and thus does not bear on this case.

Petitioner also incorrectly states (Pet. 12 n.8) that the court of

appeals’s decision requires sentencing courts to account for acquitted

conduct that is proved by a preponderance of the evidence. That issue

is not raised in this case. The court plainly held only that the district

court did not err by relying on acquitted conduct. Pet. App. 7a-8a.

guidelines enhancements and the consideration of ac-

quitted conduct, but in the course of that discussion, the

government stated that Eleventh Circuit authority re-

quired the court to consider the factors in 18 U.S.C.

3903(a), with which, the government was sure, the court

was “familiar.” 4/19/06 Tr. 15-16. And, before announc-

ing its sentence, the court explained that it had consid-

ered the presentence report, which contained the advi-

sory guidelines calculations as well as material bearing

on the “statutory factors,” and determined to impose a

Guidelines sentence. /d. at 31-32.

The courts of appeals are unanimous that a district

court need not specifically advert to the Section 3553(a)

factors or run through them by rote, in checklist fashion.

See, ¢.g., United States v. Johnson, 534 F.3d 690, 695

(7th Cir. 2008) (noting that “a district court judge need

not apply all § 3553(a) factors in a systematic or check-

list fashion”) (internal quotation marks and citation

omitted); United States v. Kirchhof, 505 F.3d 409, 413

(6th Cir. 2007) (“If the record demonstrates that the

sentencing court addressed the relevant factors in

reaching its conclusion, the court need not explicitly con-

sider each of the § 3553(a) factors or engage in a rote

listing or some other ritualistic incantation of the fac-

tors.”); United States v. Smith, 440 F.3d 704, 707 (5th

Cir. 2006) (“[A] checklist recitation of the section 3553(a)

factors is neither necessary nor sufficient for a sentence

to be reasonable.”). Here, while the district court did

not specifically enumerate the application of the Section

3553(a) factors, the court was plainly aware of them. It.

heard the parties’ arguments in the course of the sen-

tencing (none of which specifically referred to the Sec-

tion 3553(a) factors, other than the comment by the gov-

ernment noted above), and it imposed a sentence within

the Guidelines range. That consideration of the Section

3553(a) factors was sufficient. As in Rita, the court

“must have believed that there was not much more to

say.” 1278S. Ct. at 2469. While the court “might have

said more,” where, as here, the context and record make

clear that the court must have thought that the Guide-

lines sentence was appropriate in this “conceptually sim-

ple” case, zbid., no more is required. Because the court

did not err, petitioner would not be entitled to relief un-

der any view of the plain-error doctrine.

On the issue of plain error, petitioner contends (Pet.

16-23) that the courts of appeals disagree on whether a

district court’s failure to treat the Sentencing Guidelines

as advisory is reversible plain error absent a showing

that the district court would have imposed a different

sentence but for that error. See Pet. 19 & n.12. That

question has no bearing on petitioner’s case, see Pet.

App. 7a (noting that “the district court applied the

guidelines in an advisory manner”), and therefore does

not justify this Court’s review.

In any event, review of that question is not war-

ranted because it is of rapidly diminishing importance,

as the transitional cases to which it applies have virtu-

ally all been resolved. In the wake of Booker, the courts

of appeals have adopted varying approaches to review-

ing unpreserved claims of Booker error. This Court,

however, has repeatedly declined to resolve the circuit

conflict on the issue of the proper application of the

plain-error test to Booker error. See, e.g., Rodriguez v.

United States, 545 U.S. 1127 (2005) (No. 04-1148).

There is no reason for a different result here.

b. Petitioner suggests (Pet. 2Z-23) that the court of

appeals’s holding conflicts with this Court’s decision in

United States v. Dominguez Benitez, 542 U.S. 74 (2004).

That is incorrect.

In Dominguez Benitez, the Court stated that a de-

fendant may show that an unpreserved error affected

his “substantial rights” only if he can “show a reasonable

probability that, but for the error,” the outcome of his

proceeding would have been different. 542 U.S. at 83.

The court of appeals followed that reasoning when it

held, based on the sentencing record, that there was no

probability that the district court would have imposed a

different sentence but for its alleged failure to consider

the 18 U.S.C. 3553(a) factors. See Pet. App. 10a (“[ Peti-

tioner] points to no evidence in the record that if the

district court had explicitly considered the § 3553(a)

factors, the court would have imposed a different sen-

tence.”) (emphasis added). Moreover, the court of ap-

peals, in its plain-error discussion, relied on its earlier

decision in United States v. Rodriquez, 398 F.3d 1291

(llth Cir.), cert. denied, 545 U.S. 1127 (2005). See Pet.

App. 9a. Rodriguez, in turn, relied on Dominguez

Benitez in holding that the “standard for showing [an

error affecting substantial rights] is the familiar reason-

able probability of a different result formulation, which

means a probability ‘sufficient to undermine confidence

in the outcome.’” 398 F.3d at 1299 (quoting Dominguez

Benitez, 542 U.S. at 83). Accordingly, there is no merit

to petitioner’s suggestion that the decision below con-

flicts with Dominguez Benitez.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.