United States v. Pasquantino

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4282

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

versus

DAVID B. PASQUANTINO,

Defendant - Appellee.

No. 06-4307

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

versus

CARL J. PASQUANTINO,

Defendant - Appellee.

Appeals from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:00-
cr-00202-JFM; 1:06-cv-00066-JFM; 1:06-cv-00065-JFM)

Argued: December 1, 2006 Decided: April 18, 2007
Before MICHAEL and GREGORY, Circuit Judges, and Gerald Bruce LEE,
United States District Judge for the Eastern District of Virginia,
sitting by designation.

Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Judge Michael and Judge Lee joined.

ARGUED: Gregory Welsh, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant.
Bruce Robert Bryan, Syracuse, New York; Jensen Egerton Barber,
Washington, D.C., for Appellees. ON BRIEF: Rod J. Rosenstein,
United States Attorney, Baltimore, Maryland, for Appellant.

Unpublished opinions are not binding precedent in this circuit.

2
GREGORY, Circuit Judge:

Unique among the cases impacted by United States v. Booker,

543 U.S. 220 (2005), the case of David and Carl Pasquantino

(“Defendants”) raises a procedural question that “tests the reality

of [the] great principles” underlying the habeas corpus doctrine,

among them, fundamental fairness.1 Harris v. Nelson (Nelson), 394

U.S. 286, 291 (1969). Defendants’ case asks whether, where there

are undisputed Booker errors infecting a sentencing proceeding and

where Booker expressly applies to that proceeding, but where the

Supreme Court has declined to address the Booker issues because

they fall outside the scope of its certiorari grant, the district

court must also deny Defendants the benefit of a Booker analysis.

We think not. We therefore affirm the judgment of the court below,

which granted Defendants a writ of habeas corpus in order to

resentence them in light of Booker, a decision issued while

Defendants’ case was pending on direct review. We further uphold

as reasonable the new sentences that the district court imposed.

I.

In February 2001, a jury in the District of Maryland

convicted Defendants of wire fraud arising out of a scheme to

smuggle liquor from the United States to Canada to evade Canadian

1
“[F]undamental fairness is the central concern of the writ of
habeas corpus . . . .” Strickland v. Washington, 466 U.S. 668, 697
(1984).

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import taxes. At the sentencing hearing on June 8, 2001, the

district judge noted that “he was fully satisfied from the

evidence produced at trial that the [amount of] loss [involved in

the case] is above two and a half million dollars.” J.A. 61.

Defense counsel argued to no avail that this fact, which would

enhance Defendants’ sentences beyond the statutory maximum, had

not been determined by a jury consistent with Apprendi v. New

Jersey, 530 U.S. 466 (2000). The Government responded to this

argument by citing two Seventh Circuit cases holding that Apprendi

did not apply to the United States Sentencing Guidelines

(“Guidelines”).

Defense counsel also made arguments about Defendants’

advanced age and poor health at sentencing. The district judge

stated that he could not consider these matters under the

Guidelines. The court then adopted the following Guidelines

calculations: Defendants’ base offense level of six was increased

by thirteen levels due to the amount of loss involved, by two

levels for more than minimal planning, and by four levels for role

in the offense, resulting in an adjusted offense level of twenty-

five and a Guidelines range of fifty-seven to seventy-one months

in prison. The court sentenced Defendants to fifty-seven months

in prison, three years of supervised release, and a special

assessment of $100 per count.

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 A divided panel of this Court reversed the convictions, but

after rehearing, the en banc Court affirmed the convictions,

finding that the common law revenue rule did not prevent the

prosecution of a scheme to deprive a foreign government of tax

revenues. United States v. Pasquantino, 336 F.3d 321 (4th Cir.

2003) (en banc), rev’g 305 F.3d 491 (4th Cir. 2002). The mandate

issued on August 11, 2003.

Without taking action to stay the mandate, Defendants sought

and were granted certiorari in the United States Supreme Court on

the question of the whether a plot to defraud a foreign government

of tax revenue violates the federal wire fraud statute. In their

merits brief to the Supreme Court, Defendants argued in a footnote

that their sentences should be vacated in light of Blakely v.

Washington, 542 U.S. 296 (2004), which had been decided five days

before the merits brief was due.

In an opinion dated April 26, 2005, the Supreme Court

affirmed the judgment of this Court. United States v.

Pasquantino, 544 U.S. 349 (2005). The majority opinion declared

in a footnote that the Court would not address Defendants’ Blakely

argument because Defendants had not raised the claim before the

Fourth Circuit or in their petition for certiorari. Id. at 372

n.14. Justice Ginsburg, writing for the dissenting justices,

disagreed. She noted that Defendants’ failure to raise their

Blakely claim below or in their petition for certiorari was no

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fault of Defendants given that Blakely was decided well after they

were granted certiorari. Id. at 377 n.5. She further noted that

Defendants were sentenced in violation of an even newer case,

United States v. Booker.2 See Pasquantino, 544 U.S. at 377 n.5.

Booker had been decided after oral arguments in Defendants’ case,

but three months before the Supreme Court issued its written

decision. Without explanation, the Supreme Court later denied a

petition for rehearing submitted by Defendants that explicitly

raised the Booker issue. Pasquantino v. United States, 545 U.S.

1135 (2005). The Supreme Court issued judgment on June 28, 2005.

Having lost at the Supreme Court, Defendants filed in this

Court a motion to withhold issuance of the mandate, vacate their

sentences, and remand to the district court for resentencing

consistent with Booker and United States v. Hughes, 401 F.3d 540

(4th Cir. 2005). By a single-page order dated August 24, 2005, a

majority of a panel of this Court treated the motion as one to

recall the mandate issued on August 11, 2003, and concluded that

no extraordinary circumstances warranted doing so.

Defendants then filed in the district court a memorandum

seeking resentencing. The Government opposed the request on the

grounds that the district court did not have jurisdiction to

2
Booker invalidated the statutory provisions that made the
Guidelines mandatory and ruled that a district court’s imposition
of a sentence that exceeded the maximum authorized by jury findings
alone violated the Sixth Amendment. 543 U.S. at 226-27.

-6-
resentence Defendants. Shortly thereafter, Defendants filed in

the district court motions pursuant to 28 U.S.C. § 2255 (2000)

seeking resentencing. The Government opposed these motions as

well. During a hearing on January 12, 2006, the district court

acknowledged that it did not have jurisdiction in the criminal

case to resentence Defendants. The court did, however, decide to

grant Defendants’ § 2255 motions and to order resentencing.

At resentencing on February 8, 2006, the district court

determined that the Guidelines range it had applied during the

original sentencing (fifty-seven to seventy-one months) remained

applicable and that there were no grounds for departure under the

Guidelines. Next, the court weighed the factors for sentencing

under 18 U.S.C.A. § 3553(a) (West Supp. 2004). Defendants had

argued in their sentencing memoranda and at the hearing that

application of these factors warranted sentences lower than the

applicable Guidelines range. Finally, in the light of the §

3553(a) factors, the court sentenced David Pasquantino to eighteen

months in prison and Carl Pasquantino to twelve months and one day

in prison. The court entered orders granting Defendants’ § 2255

motions that same day. The Government now appeals. We review the

district court’s legal conclusions de novo and its findings of

fact for clear error. United States v. Roane, 378 F.3d 382, 395

(4th Cir. 2004).

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 II.

The writ of habeas corpus, “the highest remedy in law” for an

individual who is imprisoned, has its formal roots in seventeenth-

century England. Smith v. Bennett, 365 U.S. 708, 712 (1961). In

this country, the Framers incorporated the Great Writ3 into the

Constitution, see U.S. Const. art I, § 9, and since then, the

Supreme Court has considered it “the best and only sufficient

defence of personal freedom,” Ex parte Yerger, 75 U.S. 85, 95

(1869), and “the symbol and guardian of individual liberty,”

Peyton v. Rowe, 391 U.S. 54, 59 (1968).

Congress has expanded the scope of the writ several times

since first authorizing its use by federal courts in 1789. United

States v. Hayman, 342 U.S. 205, 211 n.7 (1952). Section 2255,

enacted in 1948, is now the primary means by which federal

prisoners avail themselves of the Great Writ’s protections. See

Davis v. United States, 417 U.S. 333, 343 (1974). The most

fundamental change Congress forced by adopting § 2255 was forum-

related: federal prisoners now collaterally attack their sentences

in the district of sentencing rather than the district of

confinement. See § 2255. Nonetheless, as the Supreme Court

explained in Hayman: “Nowhere in the history of Section 2255 do we

3
As explained in Stone v. Powell, 428 U.S. 465, 475 n.6
(1976), “[i]t is now well established that the phrase ‘habeas
corpus’ used alone refers to the common-law writ of habeas corpus
ad subjiciendum, known as the ‘Great Writ.’”

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find any purpose to impinge upon prisoners’ rights of collateral

attack upon their convictions. On the contrary, the sole purpose

[in enacting § 2255] was to minimize the difficulties encountered

in habeas corpus hearings by affording the same rights in another

and more convenient forum.” 342 U.S. at 219.

Section 2255 “can perform the full service of habeas corpus”

for a federal prisoner. Andrews v. United States, 373 U.S. 334,

339 (1963). A prisoner may petition for discharge or even for “a

more flexible remedy,” such as a new trial or the remedy

Defendants here seek: the right to vacate, set aside, or correct

their sentences. Id. Because § 2255 and the writ of habeas

corpus are substantively identical in scope, Hill v. United

States, 368 U.S. 424, 428 n.5 (1962), this Court may look to

habeas precedent in considering the § 2255 petition presented

here, cf. Kaufman v. United States, 394 U.S. 217, 222 (1969),

abrogated on other grounds by Stone v. Powell, 428 U.S. 465

(1976).

III.

We first consider whether the district court’s grant of the

writ was proper. The Government contends that it was not because

Defendants procedurally defaulted their Booker claim and cannot

meet the “cause and prejudice” standard applied to cases involving

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procedural default. For the reasons explained below, we reject

these contentions.

A.

The Government argues that in the opinion affirming

Defendants’ convictions, the Supreme Court ruled that Defendants

procedurally defaulted their Booker claim.4 Accordingly, the

Government argues, the appropriate standard of review for

Defendants’ § 2255 motions is cause and actual prejudice. Under

this standard, “[a] claim raised for the first time in a § 2255

motion generally is not cognizable in federal court unless the

petitioner demonstrates ‘both (1) cause excusing his . . .

procedural default, and (2) actual prejudice resulting from the

errors of which he complains.’” United States v. Landrum, 93 F.3d

122, 124-25 (4th Cir. 1996) (quoting United States v. Frady, 456

U.S. 152, 167-68 (1982)). The Government contends that Defendants

cannot show cause and, consequently, should have been denied

habeas relief, because Defendants could have presaged in 2001 that

4
The Government, like the courts in general, understands
Booker as an extension of Blakely. See Booker, 543 U.S. at 245
(noting that the Court reached its decision by “[a]pplying its
decisions in Apprendi v. New Jersey and Blakely v. Washington to
the Federal Sentencing Guidelines” (citations omitted)). Thus,
although the Supreme Court opinion observed only that Defendants
had not raised a Blakely claim below, the Government urges, and not
frivolously so, that the real meaning of the Court’s observation is
that Defendants did not raise below the claim that they were
sentenced in violation of the Sixth Amendment, regardless of
whether that claim relied on Blakely or Booker.

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the Supreme Court would decide Booker (which was contrary to our

precedent at the time5) and that Booker would apply to their

sentences.6 Cf. United States v. Mikalajunas, 186 F.3d 490, 493

(4th Cir. 1999) (holding that showing cause for procedural default

based on a subsequent change in the law requires showing that “the

legal basis for the claim was not reasonably available when the

matter should have been raised”).

We would accept the Government’s contentions but for the fact

that no court has held that Defendants procedurally defaulted

their Sixth Amendment claim. As explained below, absent a

procedural default, cause and prejudice is not the appropriate

standard to apply to Defendants’ petitions.

1.

Neither the Supreme Court nor the district court ruled that

it could not consider Defendants’ Blakely claim because Defendants

had procedurally defaulted that claim. Rather, the Supreme Court

observed that pursuant to its preferred practice of limiting

review to the questions presented in the petition for certiorari,

it would not address Defendants’ Blakely argument. The Court’s

5
See United States v. Kinter, 235 F.3d 192, 200 (4th Cir.
2000) (holding that “the Sentencing Guidelines pass muster under .
. . Apprendi”), abrogated by Booker, 543 U.S. 220, as stated in,
Hughes, 401 F.3d at 547-48.
6
Convinced that Defendants have not shown cause, the
Government does not address the issue of prejudice.

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discussion of Defendants’ Sixth Amendment claim states in its

entirety:

Petitioners argue in a footnote that their sentences
should be vacated in light of Blakely v. Washington, 542
U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Brief for Petitioners 26, n. 29. Petitioners did not
raise this claim before the Court of Appeals or in their
petition for certiorari. We therefore decline to address
it. See, e.g., Lopez v. Davis, 531 U.S. 230, 244, n. 6,
121 S. Ct. 714, 148 L. Ed. 2d 635 (2001) (declining to
address “matter . . . not raised or decided below, or
presented in the petition for certiorari”); Whitfield v.
United States, 543 U.S. 209, 125 S. Ct. 687, 160 L. Ed.
2d 611 (2005) (affirming federal convictions despite the
imposition of sentence enhancements, see Brief for
Petitioners therein, O.T. 2004, No. 03-1293, etc., p. 7,
n. 6).

Pasquantino, 544 U.S. at 372 n. 14.

The Court does not state that Defendants have “procedurally

defaulted” their Blakely or Booker claim, nor does the Court

indicate that it cannot (as opposed to will not) consider their

claim. The Court cites none of the voluminous Supreme Court

precedent on procedural default. See, e.g., Edwards v. Carpenter,

529 U.S. 446 (2000); Bousley v. United States, 523 U.S. 614

(1998). Rather, it cites a decision, Lopez, which itself cites

Blessing v. Freestone, 520 U.S. 329, 340, n.3 (1997); Blessing

expressly identifies Supreme Court Rule 14.1(a)——not the doctrine

of procedural default——as the basis on which the Court “decline[s]

to address” a claim. That court rule provides in relevant part:

“Only the questions set out in the petition [for a writ of

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certiorari], or fairly included therein, will be considered by the

Court.” Sup. Ct. R. 14.1(a).

As Justice Ginsburg noted in dissent and the full Court has

confirmed in other cases, application of Rule 14.1(a) is a

prudential decision; it does not constitute a jurisdictional,

statutory, or constitutional ruling. See Pasquantino, 544 U.S. at

376 n.5 (Ginsburg, J., dissenting) (“The rule that we do not

consider issues not raised in the petition is prudential, not

jurisdictional . . . and a remand on the Blakely-Booker question

would neither prejudice the Government nor require this Court to

delve into complex issues not passed on below.” (citation

omitted)); Davis, 512 U.S. at 463 (Scalia, J., concurring) (“[T]he

refusal to consider arguments not raised is a sound prudential

practice, rather than a statutory or constitutional mandate, and

there are times when prudence dictates the contrary.”); Izumi

Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S.

27, 32 (1993) (per curiam) (stating that “Rule 14.1(a), of course,

is prudential”); Yee v. City of Escondido, 503 U.S. 519, 535

(1992) (“This rule is prudential in nature, but we disregard it

‘only in the most exceptional cases,’ where reasons of urgency or

of economy suggest the need to address the unpresented question in

the case under consideration.” (citation omitted)). In short, the

Court unambiguously considers application of Rule 14.1(a) a

discretionary decision that it makes to focus the arguments for

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the parties and to conserve the Court’s resources as it selects

cases in which to grant certiorari. Yee, 503 U.S. at 535-36. The

Court does not consider application of the Rule a decision about

procedural default.

Furthermore, we would not be wise to infer from the fact that

the Supreme Court’s language mirrors the language of procedural

default that the Court has implicitly ruled on the issue of

procedural default in Defendants’ case. Although the Court’s

language bears some similarity to the language often used in

discussions of procedural default, see, e.g., Massaro v. United

States, 538 U.S. 500, 504 (2003) (identifying “the general rule

that claims not raised on direct appeal may not be raised on

collateral review unless the petitioner shows cause and prejudice”

as the “procedural-default rule” (emphasis added)), the language

alone does not a ruling on procedural default make. We have

found no decision by the Supreme Court or this or any other

Circuit Court mentioning “decline to address” in the same sentence

or paragraph as “procedural default.” Nor has this Court found

cases that discuss both procedural default and Supreme Court Rule

14.1(a). Simply stated, the issues are distinct and have been

kept so by the courts. The Court’s footnote, then, is properly

understood as a discretionary prudential decision, not a ruling on

procedural default that represents the law of this case.

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 Finally, that the Supreme Court did not choose to remand

Defendants’ case for resentencing in light of Booker, an option

that Justice Ginsburg’s footnote suggests the Court may have

considered yet rejected, does not mean that the Court determined

that Defendants procedurally defaulted their Booker claim. The

only definite meaning, based on the Court’s language and the

precedent the Court cites, is that the Court declined to abandon

its “heavy presumption against . . . consideration” of claims not

fairly included in the questions presented by a petition for

certiorari. Yee, 503 U.S. at 537; see also 16B Charles Alan

Wright, et al., Federal Practice and Procedure § 4004.3 (2006)

(explaining that there “is no clear unifying theme” binding

together the cases in which the Supreme Court has chosen to

consider issues not presented by the petition for certiorari).

We note that the district court also did not rule that

Defendants procedurally defaulted their Booker claim. The

district judge found the opposite:

Under the unique circumstances of this case, I find that
the issue, the sentencing issues were raised on direct
appeal when counsel mentioned in their footnote in the
Supreme Court the Blakely issue, which was the only
issue which had then been, Booker hadn’t been decided
yet, was the only issue that could have been raised.
They did everything they could in the Supreme Court.

J.A. 125.

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 2.

Given the absence of any clear ruling by the Supreme Court as

to procedural default and our de novo standard, which relieves us

from having to give deference to the conclusions drawn below, we

may independently assess the merit of the Government’s position

that Defendants have procedurally defaulted their Booker claim.

In the context of federal habeas petitions, we have defined

procedural default as the failure to raise on direct appeal errors

that could have been raised. See United States v. Harris, 183

F.3d 313, 317 (4th Cir. 1999); Mikalajunas, 186 F.3d at 492.

Having reviewed the record (before us now for the third time), we

cannot say that Defendants’ actions meet this definition with

regard to their Sixth Amendment claim.

First, Defendants raised Apprendi at the appropriate

juncture: at their original sentencing. Second, they raised

Blakely as early as they could during direct review: in their

merits brief to the Supreme Court. Third, although they did not

request permission from the Supreme Court to file supplemental

briefs once Booker was decided (after their oral arguments but

before decision), they raised Booker in a petition for rehearing

before the Supreme Court issued judgment, meaning they raised

Booker before their convictions became final. See Teague v. Lane,

489 U.S. 288, 306 (1989) (indicating that a case is not final

until there is a “final judgment not subject to further judicial

-16-
revision” (quotation marks omitted)); United States v.

Christopher, 273 F.3d 294, 297 (3d Cir. 2001) (stating that a

criminal conviction is not final until resolution of the

defendant’s appeal); United States v. Logal, 106 F.3d 1547, 1552

(11th Cir. 1997) (same). In short, the habeas petition at issue

is not the first time a court has heard Defendants complain about

the violations of their Sixth Amendment rights. Cf. Landrum, 93

F.3d at 124 (describing a procedurally defaulted claim as one

“raised for the first time in a § 2255 motion”).

3.

Our holding that Defendants have not procedurally defaulted

their Booker claim in no way undermines, or is undermined by, the

Supreme Court’s decision not to address Defendants’ Booker

argument. As the Supreme Court explained in Izumi Kaisha, its

“faithful application of Rule 14.1(a)” helps to ensure that the

Court does not “engage in ill-considered decisions of questions

not presented in the petition” and that it demonstrates strong

disapproval of the practice of “smuggling additional questions

into a case” after certiorari has been granted. 510 U.S. at 34.

The instant case implicates neither concern. Whether the district

court applied the Guidelines in a mandatory fashion and enhanced

Defendants’ sentences based on facts not found by the jury is not

an ill-considered question when Booker undisputedly applies to

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Defendants’ case. See Booker, 543 U.S. at 268 (announcing that

the Court’s holding applies “to all cases on direct review”). Nor

were Defendants at risk of “smuggling” additional questions into

their case after the Court granted certiorari. Defendants had no

control over the Court’s decision to issue Booker while

Defendants’ direct appeal was pending, thereby making Booker

applicable to Defendants’ case.

Our holding also leaves intact the doctrine of procedural

default. This Court has emphasized that the doctrine constrains

petitioners because “habeas review is an extraordinary remedy and

‘will not be allowed to do service for an appeal.’” Harris, 183

F.3d at 317 (quoting Reed v. Farley, 512 U.S. 339, 354 (1994)).

Our finding that Defendants have not procedurally defaulted their

Sixth Amendment claim does not undermine this message, as it is

targeted at a category of defendants that does not include

Defendants. Defendants are not “abusing” the writ because they

have exhausted their appeals. Rather, they raised Blakely and

Booker as soon as they were able to do so but never received

meaningful post-Booker review of their claim.7 Unlike those

7
Approximately three hundred other defendants with cases
pending on direct review when Booker was decided did receive the
benefit of such review: Twelve days after issuing Booker, the
Supreme Court remanded nearly three hundred cases for further
consideration in light of the decision. See Order List, 543 U.S.
___, Certiorari - Summary Dispositions, Jan. 24, 2005,
http://www.supremecourtus.gov/orders/courtorders/012405pzor.pdf.
Forty-one of those cases were remanded to this Court. See id. We
thus find ourselves in agreement with the district court: “By any

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defendants with claims we otherwise would bar using the doctrine

of procedural default, Defendants present legitimate and important

constitutional questions suited, at this juncture, to habeas

review. Indeed, the writ is a device poised “to provide a prompt

and efficacious remedy for whatever society deems to be

intolerable restraints.” Nelson, 394 U.S. at 291. The Supreme

Court has determined that the pre-Booker sentencing regime

represented just such a restraint. See Booker, 543 U.S. at 243

(finding that “the interest in fairness and reliability protected

by the right to a jury trial——a common-law right that defendants

enjoyed for centuries and that is now enshrined in the Sixth

Amendment”——outweighed all other considerations militating against

the Court’s holding).

B.

Because there has been no procedural default by Defendants,

cause and prejudice is not the correct standard of review for

their motions. Rather, cognizant that the writ of habeas corpus

“now demands . . . application of basic constitutional doctrines

of fairness,” Lonchar v. Thomas, 517 U.S. 314, 322 (1996), we

apply the standard we have applied to all other cases involving

sense of fundamental fairness, it just isn’t right not to give
these defendants the benefit of a Booker analysis.” J.A. 127. Cf.
Engle v. Isaac, 456 U.S. 107, 126 (1982) (“Today, as in prior
centuries, the writ is a bulwark against convictions that violate
fundamental fairness.”).

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Booker questions and pending at the time Booker was decided: plain

error. See, e.g., United States v. Robinson, 460 F.3d 550, 556

(4th Cir. 2006); Hughes, 401 F.3d at 547; United States v.

Washington, 398 F.3d 306, 312 n.7 (4th Cir. 2005). Application of

the plain error standard is especially appropriate here, where a

Sixth Amendment violation has been raised in the courts below and

above us, but, with the exception of a mistitled motion to

withhold issuance of the mandate, not before us.8 See Fed. R. Civ.

P. 52(b) (stating that a “plain error that affects substantial

rights may be considered even though it was not brought to the

court’s attention”); United States v. Olano, 507 U.S. 725, 732

(1993) (stating that Rule 52(b) leaves the decision to correct an

error within the court of appeals’ “sound discretion”).

1.

In reviewing for plain error, we first determine whether

there was an error. Olano, 507 U.S. at 732; Hughes, 401 F.3d at

547. Booker outlawed the mandatory application of the Guidelines

8
In Washington, in fact, we expressly noted that plain error
review of the defendant’s Booker claim was appropriate
notwithstanding the fact that the defendant had not yet challenged
his sentence in this Court. See 398 F.3d at 312 n.7 (“Although
appellate contentions not raised in an opening brief are normally
deemed to have been waived, the Booker principles apply in this
proceeding because the Court specifically mandated that we ‘must
apply [Booker] . . . to all cases on direct review.’” (quoting
Booker, 543 U.S. at 268)).

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and barred district courts from imposing sentences that exceed the

maximum length allowed based on facts found by the jury alone.

543 U.S. at 226-27. In Defendants’ case, the district judge

applied the Guidelines in a mandatory fashion, acknowledging, but

refusing to take into account, Defendants’ medical condition.

More importantly, however, the base offense levels for Defendants’

convictions under the then current and mandatory Guidelines

provided for incarceration from zero to six months. Hence, based

only on the facts found by the jury beyond a reasonable doubt,

Defendants could not have been sentenced to more than six months.

In reaching its ultimate sentence of fifty-seven months, the

district court enhanced Defendants’ sentences beyond the six-month

maximum pursuant to facts (namely, the amount of loss to Canada)

that it found by a preponderance of the evidence. This

constituted error.

2.

We next determine whether the error is plain. Olano, 507

U.S. at 734. “An error is plain ‘where the law at the time of

trial was settled and clearly contrary to the law at the time of

appeal.’” Hughes, 401 F.3d at 547 (quoting Johnson v. United

States, 520 U.S. 461, 468 (1997)). At the time of Defendants’

sentencing, our precedent foreclosed Sixth Amendment challenges to

their sentences. See United States v. Kinter, 235 F.3d 192, 200

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(4th Cir. 2000) (holding that “the Sentencing Guidelines pass

muster under . . . Apprendi”) abrogated by Booker, 543 U.S. 220,

as stated in Hughes, 401 F.3d at 547-48. Booker has now settled

the question, therefore the district court’s error in sentencing

Defendants was plain.

3.

Lastly, Defendants must establish that the error affected

their substantial rights. See Olano, 507 U.S. at 734; Hughes,

401 F.3d at 548. The Supreme Court has stated that the error

“must have been prejudicial;” it “must have affected the outcome

of the district court proceedings.” Olano, 507 U.S. at 734.

At the hearing on Defendants’ § 2255 motions, the district

judge stated:

. . . I think there’s been actual prejudice. I think
there was an actual and substantial disadvantage. They
have to demonstrate reasonable probability, that but for
the alleged error, the result of their sentencings would
have been different. Again, this is where I don’t want
to give false hope to the defendants. But I do think
there’s a reasonable probability that my sentence would
have been different.

J.A. 128 (emphasis added). At Defendants’ initial sentencing, the

district judge indicated that the Guidelines tied his hands:

I am not unsympathetic . . . to the age and health of
the defendants, particularly Carl Pasquantino. But
unfortunately, fortunately or unfortunately, these are
not matters for me to consider under the guidelines. I
don’t mean to give short shrift to this, but frankly
there simply is no basis under the guidelines for the
adjustments or the departures requested.

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J.A. 62 (emphasis added). Finally, at the resentencing, in

discussing Carl Pasquantino’s poor health as a factor justifying

a non-Guidelines sentence, the district judge stated:

. . . I’m taking into account . . . Mr. Carl
Pasquantino’s . . . medical condition, which is, there’s
no question it’s real. It was real before, I couldn’t
consider under the guideline. I now can consider it.

J.A. 232 (emphasis added).

These excerpts from the record provide “fair assurance” that

the error of applying the Guidelines as mandatory affected the

district court’s judgment. Hughes, 401 F.3d at 548 (quoting

Kotteakos v. United States, 328 U.S. 750, 764 (1946)). Because

the district court confirmed that its error affected Defendants’

sentences, Defendants have shown that the error affected their

substantial rights.

In sum, we uphold the district court’s decision to conduct

the preceding plain error review and, in light of its errors,

grant Defendants the only remedy left available to them. Without

the district court’s notice of its error and issuance of the writ,

Defendants, undisputed members of the class of defendants to which

Booker applies, would have yet to be sentenced under a regime in

which the Guidelines are treated as advisory. Cf. Washington, 398

F.3d at 313 (noting the error in the petitioner’s sentence

because, among other things, “the facts remain that a sentence has

yet to be imposed under a regime in which the Guidelines are

treated as advisory” (quotation marks and citations omitted)).

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 C.

Our disposition of Defendants’ petition comports with the

principles of retroactivity announced in both Booker and Shea v.

Louisiana, 470 U.S. 51 (1985), a similar case decided twenty years

earlier. The Booker Court stated:

As these dispositions indicate, we must apply today’s
holdings——both the Sixth Amendment holding and our
remedial interpretation of the Sentencing Act——to all
cases on direct review. That fact does not mean that we
believe that every sentence gives rise to a Sixth
Amendment violation. Nor do we believe that every
appeal will lead to a new sentencing hearing. That is
because we expect reviewing courts to apply ordinary
prudential doctrines, determining, for example, whether
the issue was raised below and whether it fails the
“plain-error” test.

543 U.S. at 268 (citations omitted). Pursuant to Booker, neither

the district court nor this Court merely has assumed that

Defendants’ sentences give rise to a Sixth Amendment violation

warranting relief. Rather, we have applied ordinary prudential

doctrines to Defendants’ case: The district court determined that

Defendants’ Sixth Amendment issue was raised below, a

determination that we will not disturb. Likewise, the district

court determined that Defendants’ case meets the plain error test,

a determination we also uphold.9 Given the retroactivity principle

9
Further, we again note that the “ordinary prudential
doctrine” that the Supreme Court applied to Defendants’ Sixth
Amendment claim (that is, Supreme Court Rule 14.1(a)) did not bar
subsequent review by this Court and the district court.

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announced in Booker, the district court was correct to employ the

plain error standard and resentence Defendants.

Our decision today also fully comports with Shea. In Shea,

the Supreme Court considered the retroactive effect of Edwards v.

Arizona, 451 U.S. 477 (1981), a case that, like Booker, announced

a new rule of criminal procedure. See United States v. Morris,

429 F.3d 65, 71 (4th Cir. 2005) (holding that, for purposes of

retroactivity analysis, Booker announced a new rule of criminal

procedure that was not apparent to all reasonable jurists at the

time). The question before the Shea Court was whether Edwards

applied retroactively to Shea’s convictions when Shea had raised

the Edwards issue and Shea’s case was pending on direct appeal in

the state courts when Edwards was decided. 470 U.S. at 59.

Finding that “principled decisionmaking and fairness to similarly

situated petitioners require[d] application of a new rule to all

cases pending on direct review,” the Court held that:

[I]f a case was pending on direct review at the time
Edwards was decided, the appellate court must give
retroactive effect to Edwards, subject, of course, to
established principles of waiver, harmless error, and
the like. If it does not, then a court conducting
collateral review of such a conviction should rectify
the error and apply Edwards retroactively. This is
consistent with Justice Harlan’s view that cases on
collateral review ordinarily should be considered in
light of the law as it stood when the conviction became
final.

470 U.S. at 59, 59 n.4 (citing Mackey v. United States, 401 U.S.

667, 689 (1971) (Harlan, J., concurring in judgment)).

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 Pursuant to Shea, we have given appropriate deference to the

principle that Defendants, whose case was pending at the time

Booker was decided, should not fare worse than similarly situated

defendants by being denied the benefit of the new rule announced

in Booker. See id. at 56 (citing Justice Harlan’s view that

“application of a new rule of law to cases pending on direct

review is necessary in order for the Court to avoid being in the

position of a super-legislature, selecting one of several cases

before it to use to announce the new rule and then letting all

other similarly situated persons be passed by unaffected and

unprotected by the new rule”). Further, we have on collateral

review noted the district court’s error and applied Booker

retroactively. Finally, we have done so “subject . . . to

established principles of waiver, harmless error, and the like” by

observing that a court has yet to rule that Defendants

procedurally defaulted their claim, by finding that Defendants did

not procedurally default their claim, and by applying the plain

error test. Id. at 59 n.4.

As a final matter, we note that following Booker the Supreme

Court, as it did following Edwards, remanded pending petitions for

further proceedings consistent with Booker. In none of the

approximately three hundred remand orders, and certainly not in

its opinion in Defendants’ case or its summary denial of

Defendants’ petition for rehearing, did the Supreme Court suggest

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that Booker applied to the approximately three hundred other

defendants whose cases were remanded but not to Defendants.

Importantly, the batch of remanded cases included many cases in

which the parties had not raised a Sixth Amendment issue in their

original briefs. See, e.g., Hawkins v. United States, 543 U.S.

1097 (2005) (granting the petition for rehearing, vacating the

previous denial of certiorari, granting certiorari, and remanding

for further consideration in light of Booker); Petr’s Pet. for

Reh’g, Hawkins, No. 05-715, 2006 WL 247285, *4 (Feb. 1, 2006)

(noting that the Sixth Amendment ground for appeal had not been

previously presented).

In sum, we find Defendants uniquely deserving of the “high

prerogative writ.” Ex parte Watkins, 28 U.S. 193, 202 (1830).

The Government does not dispute that the district court erred in

its application of the Guidelines. Thus, in absence of any ruling

by the Supreme Court or this Court that Defendants procedurally

defaulted their Booker claim, the district court was correct to

note its error and grant Defendants habeas relief. The Great Writ

fully allows the courts to do justice in this circumstance:

The scope and flexibility of the writ——its capacity to
reach all manner of illegal detention——its ability to
cut through barriers of form and procedural mazes——have
always been emphasized and jealously guarded by courts
and lawmakers. The very nature of the writ demands that
it be administered with the initiative and flexibility
essential to insure that miscarriages of justice within
its reach are surfaced and corrected.

Nelson, 394 U.S. at 291.

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 IV.

Having affirmed the district court’s decision to issue the

writ in order to resentence Defendants in light of Booker, we turn

to the reasonableness of the new sentences imposed. The

Government argues that even if Defendants were entitled to habeas

relief, the new sentences of eighteen months for David Pasquantino

and twelve months and one day for Carl Pasquantino are

unreasonable, for they are sixty-eight and seventy-nine percent

reductions from the previous sentences, respectively, and more

than two-thirds from the bottom of the applicable Guidelines

range.

A.

This Court reviews sentences for reasonableness, considering

the extent to which they comport with the goals of 18 U.S.C. §

3553(a). United States v. Davenport, 445 F.3d 366, 370 (4th Cir.

2006); see § 3553(a) (instructing courts to impose sentences

“sufficient but not greater than necessary, to comply with”

several enumerated purposes). In determining whether a sentence

outside the Guidelines range (a “variance sentence”) serves the

goals of § 3553(a), this Court defers to the sentencing court’s

judgment and corrects only for abuse of discretion. United States

v. Green, 436 F.3d 449, 457 (4th Cir. 2006).

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 In reviewing a variance sentence, this Court “must

consider——in light of the factors enumerated in § 3553(a) and any

relevant Guidelines provisions——whether the district court acted

reasonably with respect to (1) the imposition of a variance

sentence, and (2) the extent of the variance.” United States v.

Moreland, 437 F.3d 424, 433-34 (4th Cir. 2006). “Generally, if

the reasons justifying the variance are tied to § 3553(a) and are

plausible, the sentence will be deemed reasonable.” Id. at 434.

B.

Consistent with Hughes, in resentencing the district court

consulted the Guidelines, considered the factors set forth in §

3553(a) and, after imposing sentences outside the Guidelines

range, explained its reasons for doing so. See Hughes, 410 F.3d

at 546. As for the § 3553(a) factors, the court determined that:

(1) the nature and circumstances of the offense required some

incarceration, and the history and characteristics of Defendants

justified a Guidelines sentence; (2) the nature of the fraud

victim was different because the victim was not “helpless,” but a

“sovereign government that has the power to protect itself,” J.A.

229-30; (3) incarceration reflected the seriousness of the offense

and promoted respect for the law; (4) just punishment of the

offense required the court to take into account the fact that the

case has been pending for a long period of time, not because

-29-
Defendants sought to avoid a sentence, but because legitimate

issues were being litigated; (5) the case “has been a sword of

Damocles hanging over the head of [Defendants],” J.A. 230; (6) the

new sentences were sufficient to deter others; (7) specific

deterrence was not an issue because Defendants would not commit

more crimes, therefore the public need not be protected from them;

and (8) the issue of correctional treatment for Defendants was

irrelevant.

After discussing these factors, the district court stated:

Let me say further. The factors I’m taking into account
in Mr. Carl Pasquantino’s case are twofold, are his
medical condition . . . . It was real before, I
couldn’t consider under the guideline. I can now can
consider it. And if anything, it has deteriorated
since. . . . [P]articularly in Mr. Carl Pasquantino’s
case, I recognize the hardship that’s imposed upon him
and his daughter, that I do think, I absolutely agree
with you, that periods of incarceration are necessary to
reflect the seriousness of the offense. I hope that the
sentences I impose will lead to a final resolution of
this matter and that perhaps by giving less, I’m giving
more.

J.A. 232-34. The court then sentenced David Pasquantino to

eighteen months in prison and Carl Pasquantino to twelve months

and one day in prison. The Government argues that the sentences

are unreasonable for three reasons discussed below.

1.

First, the Government maintains that the sentences are

substantively unreasonable because the district court relied on

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various improper factors in sentencing, in contravention of

Moreland. See 437 F.3d at 434 (holding that a “sentence may be

substantively unreasonable if the court relies on an improper

factor or rejects policies articulated by Congress or the

Sentencing Commission”). The Government largely assigns error to

the district court’s consideration of the length of time between

sentencing and resentencing——a time span enlarged, the court

noted, because the very ability to prosecute Defendants’ conduct

was an unsettled question. The court’s observation, however, is

tied to § 3553(a)(1), which requires attention to the nature of

the offense. Here, Defendants did not mount a frivolous challenge

to their convictions merely to prolong their freedom. Rather, the

criminality of the offense itself was a fiercely contested legal

question that necessarily lengthened the proceedings. The

resolution of this question impacts the nature of offense, which

is an appropriate factor for consideration under § 3553(a).

Moreover, the district court’s consideration of the length of

time this case has been pending due to the underlying legal

contest has not created a sentence disparity between Defendants

and other similarly situated defendants, as the Government argues.

Defendants’ case has presented a matter of first impression for

the courts. The district court also did not err, as the

Government contends, in observing that the victim in this case was

a sovereign body (Canada) and thus less vulnerable than the

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typical victim of wire fraud. The court’s attention to the nature

of the victim is tied to § 3553(a)(1), which allows consideration

of the nature of the offense.

2.

Second, the Government contends that there was substantive

error in the district court’s reliance on the medical condition of

Carl Pasquantino. The Government is particularly troubled that,

(1) by its estimation, the record contains insufficient

information about Carl’s medical condition to warrant a variance

sentence, and (2) Carl’s medical condition was not a basis for

departure under the Guidelines and therefore could not have

accounted for the six-month difference between Carl’s sentence and

David’s sentence.

The Government’s first complaint lacks merit. The district

court had before it the Presentence Report detailing Carl’s

several strokes, cerebrovascular disease, severe organic mental

disorder, and complete disability for work purposes; and a

neurologist’s affidavit reporting that Carl had suffered a

transient ischemic attack in 2004, his condition had grown worse

since trial, he was at risk for a life-threatening stroke, and

incarceration would “constitute a grave danger to his life.” J.A.

163-65. In addition, the court had before it a 1996 Social

Security Administration decision finding that Carl has had a

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severe mental impairment precluding the “performance of

substantial gainful activity” since 1994, and that he is

“‘disabled’ within the meaning of the Social Security Act.” J.A.

166-67. This information is sufficient to warrant a substantial

variance sentence for Carl. Cf. United States v. Greenwood, 928

F.2d 645, 646 (4th Cir. 1991) (holding that probation rather than

imprisonment was proper where incarceration would jeopardize

defendant’s treatment for a severe medical impairment).

The Government’s second complaint is also unavailing.

Physical condition is not a prohibited grounds for departure under

the Guidelines; a court may downward depart based on physical

condition when a defendant has an extraordinary physical

impairment. See U.S. Sentencing Guidelines Manual § 5H1.4 (2005).

Even if physical condition were disfavored as a grounds for

departure, this Court has declined to decide whether “a variance

could be based on the existence of a factor discouraged as a basis

for departure under the guidelines.” United States v. Hampton,

441 F.3d 284, 289 (4th Cir. 2006). Accordingly, the district

court was entitled to consider factors for Carl’s variance

sentence that it ordinarily would not consider under the

Guidelines. Cf. id. at 288 (noting that the factors justifying a

variance are less limited than those justifying a departure).

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 3.

Third, the Government argues that there was procedural error

in the district court’s imposition of the new sentences. The

Government contends, for example, that the court failed to explain

“how the variance sentences better serve the [§ 3553(a)] factors

than do the guidelines sentences previously imposed.” Appellant’s

Br. 26. This is not, however, the proper inquiry. We merely ask

whether the district court has “explain[ed] why a sentence outside

of the Sentencing Guideline range better serves the relevant

sentencing purposes set forth in § 3553(a).” Green, 436 F.3d at

456 (emphasis added). We do not obligate the district court to

compare original sentences to new sentences expressly. The

district court could not engage in such comparison in any event.10

Because the original sentences were imposed in violation of the

Sixth Amendment, they are unconstitutional and cannot form the

basis for comparison.

The Government argues that the new sentences are also

procedurally unreasonable because the district court offered an

inadequate statement of reasons for the sentences. See Moreland,

437 F.3d at 434. In addition, the Government notes, “the farther

the court diverges from the advisory guideline range, the more

10
The district court did, however, suggest that the
substantially lower sentences better served the purposes of §
3553(a) than the 57-month Guidelines sentences because the lower
sentences would assist in bringing the litigation to an end.

-34-
compelling the reasons for the divergence must be.” Id. The

district court, however, provided sufficiently compelling reasons

for the variance sentences it imposed, all of which are plausibly

connected to § 3553(a). Cf. id. (holding that a variance sentence

is reasonable if it has justifications that are plausible and tied

to § 3553(a)). We do not and cannot say that the district court

abused its discretion in resentencing Defendants.

V.

Given the plain Booker errors infecting Defendants’ original

sentencing and the express application of Booker to Defendants’

sentences, coupled with the unique procedural posture in which

Defendants now find their case, we uphold the district court’s

decision to grant collateral review and correct the errors by

imposing new sentences——sentences we do not find unreasonable.

The judgment of the district court is affirmed.

AFFIRMED

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