United States v. McCoy, JoAnn

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2002 Decided December 20, 2002

No. 01-3052

United States of America,
Appellee

v.

JoAnn McCoy,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 98cr00082-01)

Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender.

Elizabeth Trosman, Assistant U.S. Attorney, argued the
cause for appellee. With her on the briefs were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese
III, and Suzanne G. Curt, Assistant U.S. Attorneys.

 Before: Ginsburg, Chief Judge, Edwards, Sentelle,
Henderson, Randolph, Rogers, Tatel, and Garland, Circuit
Judges, and Williams, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
Williams.

Dissenting opinion filed by Circuit Judge Henderson, with
whom Chief Judge Ginsburg and Circuit Judge Sentelle
join.

Williams, Senior Circuit Judge: We here address the
scope of resentencing after a remand from the court of
appeals under the following conditions: (1) the defendant
seeks to raise a contention that was contingently relevant in
the initial sentencing (but the contingency did not then mate-
rialize); (2) defendant did not raise the contention in that
sentencing; and (3) the district court's action on remand
renders the contention determinative (if it is allowable and
correct). The source of the contingency here is the Sentenc-
ing Guidelines' complex treatment of multiple "groups" of
offenses. See U.S.S.G. s 3D1.4.

We conclude that the defendant's ability to raise her contin-
gent issue here depends upon whether she could establish
"good cause," within the meaning of Rule 32(b)(6)(D) of the
Federal Rules of Criminal Procedure, for not having raised it
sooner. The district court never considered the good cause
issue. Rather than remand to the district court, however, we
remand to the panel. If it finds that the merits claim is not a
winner, there will be no need for the district court to take the
matter up yet again.

* * *

JoAnn McCoy was convicted on two charges of making
false statements in a loan application and on one count of
perjury. Her case was referred to a probation officer, and
the process of generating a Presentence Report ("PSR")
proceeded along the lines prescribed by Rule 32(b)(6) (renum-
bered as Rules 32(e)-(g), per amendments effective December
1, 2002). The probation officer circulated a PSR (the "origi-

nal PSR") to the defendant and counsel on both sides, see
Rule 32(b)(6)(A), and the prosecution and the defense both
objected to various aspects, see Rule 32(b)(6)(B). The most
critical objection was the prosecution's request for an en-
hancement for obstruction of justice, to be applied to both the
crime "groups" (false statements and perjury). The proba-
tion officer added the enhancements and circulated a new
version of the PSR (the "revised PSR") on January 22, 1999.
See Rule 32(b)(6)(C).

The revised PSR calculated a "combined" offense level of
21. Twenty levels derived from the two false statement
counts--the false statement "group" for purposes of the
multi-group adjustment. U.S.S.G. s 3D1.4. These 20 levels
comprised 14 for the base offense and the size of the loss,
plus three upward adjustments of two levels each--for
McCoy's "managerial role" in directing other participants, for
her "more than minimal planning," and for her obstruction of
justice.

The second "group" was for McCoy's perjury conviction
and totaled 14 levels, 12 for the base offense and two for
obstruction of justice, and to a term of supervised release.

Finally, the revised PSR combined the two groups under
"multiple count adjustment" provisions of U.S.S.G. s 3D1.4,
adding one point to the false statement group for a "combined
offense level" of 21. Simplifying the arcane formula of
s 3D1.4 for purposes of this case, we may say that it calls for
no upward adjustment of the count for the more serious
group if the difference between the two groups is nine or
more levels, a one-point upward adjustment if the difference
is five to eight levels, and a two-level adjustment if the
difference is zero to four levels. The logic of this is plainly
that as the severity of the less serious group gets closer to
that of the more serious, it becomes appropriate to add, and
to add more, to the combined offense level.

Once the revised PSR was circulated, both sides com-
mented on the probation officer's recommendation, through
memoranda and at the sentencing hearing itself, as provided
by Rule 32(c)(1). McCoy objected to all the enhancements,

including the ones for obstruction of justice. She did not,
however, object to the obstruction enhancement on a ground
that was specific to the perjury group. Application Note 7 of
the Guidelines section governing obstruction, U.S.S.G.
s 3C1.1, explains that for a limited number of crimes, includ-
ing perjury but not false statements, the obstruction bump
should not be added unless "a significant further obstruction
occurred during the ... prosecution ... of the obstruction
offense [here perjury] itself." Victory on a potential Applica-
tion Note 7 argument would have been useful if but only if
other sentencing adjustments had occurred yielding a particu-
lar alignment of the two groups (as a practical matter, a gap
of three or four levels, as opposed to the initial gap of six).

The district court rejected all of McCoy's objections and
sentenced her to concurrent terms of 37 months on the false
statement charges and 24 months on the perjury charge.

McCoy appealed her conviction, objecting to all the en-
hancements, see United States v. McCoy, 242 F.3d 399, 403
(D.C. Cir. 2001) ("McCoy I"), but again not raising the
perjury-specific attack on the obstruction enhancement. Ab-
sent a change in the constellation of groups, lopping a couple
of levels off the perjury calculation was of no moment. As it
turned out, she did prevail on one enhancement, persuading
us that the district court might well have applied an incorrect
standard in assessing the "managerial role" bump. Id. at
410. Accordingly we remanded to the district court to recon-
sider that issue. Id. at 411.

On remand, the district court instructed the probation
officer to update the PSR in light of McCoy I, and the
probation officer read that decision as holding that no mana-
gerial role enhancement should apply. The government ac-
quiesced in the elimination of that enhancement, and the
probation officer prepared an updated version of the PSR
(the "resentencing PSR") that reduced to 18 the sentencing
level for the false statement offense. But now the gap
between the more serious and the less serious groups was
four points instead of six, so the proper multi-group adjust-

ment was two points instead of one. Absent further changes,
the combined offense level would be 20.

When the probation officer circulated the resentencing
PSR reflecting the elimination of the managerial role bump
and the higher multi-group adjustment, McCoy raised her
perjury-specific attack on the obstruction enhancement. Vic-
tory on this issue would now be determinative. Overturning
that enhancement would restore a six-point gap, causing the
overall offense level to settle at 19 points. The government
does not deny that within the resentencing procedure
McCoy's claim was timely and in compliance with Rule 32.

The government objected, however, on the ground that
McCoy had not raised the point in her first appeal. McCoy
responded that at the time of that appeal, victory on the
perjury-specific issue would have had no direct consequence.
The district court did not address either of these arguments,
but ruled simply that "the only issue presently before the
court" was to "resentence without the two-level [managerial
role] enhancement."

On McCoy's second appeal the major issue was how to
apply our precedent, United States v. Whren, 111 F.3d 956
(D.C. Cir. 1997), to these facts. There we had said that on a
remand for resentencing the district court "may consider only
such new arguments or new facts as are made newly relevant
by the court of appeals' decision--whether by the reasoning
or by the result." Id. At 960. The panel divided over the
question whether an argument that in the first sentencing
had been potentially relevant, but never immediately so,
qualified as "newly relevant." See United States v. McCoy,
280 F.3d 1058, 1062 (D.C. Cir. 2002) ("McCoy II"). We
granted McCoy's petition for rehearing en banc to clarify the
court's position on that issue.

* * *

Before turning to the merits we note that the government
objected to rehearing en banc on the ground that McCoy's
completion of her prison sentence had mooted the issue. But
the controlling statutes explicitly make the Guidelines compu-

tation relevant to McCoy's supervised release, which persists
to this day:

Factors To Be Considered In Including a Term Of
Supervised Release. The court, in determining whether
to include a term of supervised release, and, if a term of
supervised release is to be included, in determining the
length of the term and the conditions of supervised
release, shall consider the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and
(a)(6).

18 U.S.C. s 3583(c) (emphasis added). The most obviously
relevant cross-referenced section is s 3553(a)(4)(A), which
refers to "the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines
issued by the Sentencing Commission...." Id.
s 3553(a)(4)(A). Resentencing under a revised Guidelines
computation clearly could benefit McCoy.

* * *

The government argues that McCoy should be barred by
her failure to raise the Application Note 7 argument on her
initial appeal. But Whren was clearly directed to the defen-
dant's failure to raise an issue "at the original sentencing
hearing," 111 F.3d at 959, not omission from a prior appeal.
We see no basis for finding waiver from failure to raise before
the appeals court an issue on which the district court never
ruled and which never became determinative before the dis-
trict court. Such a rule would require appellants to include a
wide range of purely contingent arguments. Since appeals
are only rarely successful--in this circuit, only 12.9% of all
appeals result in a reversal of the district court, and national-
ly, this figure falls to 9.5%, see Judicial Business of the U.S.
Courts 102 tbl. B-5 (2000)--the resulting clutter of appellate
briefs would be considerable. Although not treating an omis-
sion as a waiver will occasionally cause the court to hear an
otherwise unnecessary successive appeal, the gain in simplifi-
cation of initial appeals seems to us well worth it.

 Turning to the issue of the initial sentencing itself, the
government argues that under Rule 32 of the Federal Rules
of Criminal Procedure McCoy's failure to raise the Applica-
tion Note 7 argument there operated as an effective waiver of
that argument. Although the government didn't raise Rule
32 earlier, the Whren test must be understood in light of that
rule, and both parties have articulated their views of the
Rule's role. We therefore take it into account in resolving
the case.

The government specifically invokes Rule 32(b)(6)(B), but
this is plainly wrong. At that stage the defendant had before
her only the original PSR, which did not propose any bump
for obstruction at all. Rule 32(b)(6)(B) only requires a party
to "communicate ... any objections to ... sentencing classifi-
cations ... contained in or omitted from the presentence
report," not objections to adverse classifications as yet un-
mentioned.

But defendant still had an opportunity to raise her present
objection to the obstruction bump. Rule 32(c)(1) (renumber-
ed as Rule 32(i)) requires the district court to give the parties
"an opportunity to comment on the probation officer's deter-
minations and on other matters relating to the appropriate
sentence." In fact McCoy exercised this opportunity as to
many objections--between the filing of the revised PSR on
January 22, 2000 and the actual sentencing on June 3, 2000.

Rule 32(c)(1)'s language, quoted above, provides a broad
opportunity to comment, and we think McCoy's perjury-
specific contention clearly qualified. It had the potential to
affect her sentence. And we note that Rule 32(c)(1) antici-
pates that objections not immediately affecting the sentence
will be made, for its third sentence instructs the district court
that it must, "[f]or each matter controverted ... make either
a finding on the allegation or a determination that no finding
is necessary because the controverted matter will not be
taken into account in, or will not affect, sentencing." Id.

But McCoy's failure to raise the claim in time for the
sentencing hearing does not necessarily mean that she has
lost the point forever. Rule 32(b)(6)(D) (renumbered as Rule

32(i)(1)(D)) provides that "[f]or good cause shown, the court
may allow a new objection to be raised at any time before
imposing sentence." Although this subsection's location as a
part of Rule 32(b)(6) might suggest that it refers only to
points that parties failed to make at the Rule 32(b)(6)(B)
opportunity, both common sense and the language "at any
time" indicate a broader coverage.

To be sure, it may be fairly uncommon for an omission at
the Rule 32(c)(1) stage to be even susceptible to the possibili-
ty of relief under the "good cause" standard of Rule
32(b)(6)(D). Typically the next stage after that opportunity
will be appeal, in which a party's previously omitted claims
will be governed by the plain error standard. But it is easy
to imagine a case where the opportunity provided by Rule
32(c)(1) involves multiple stages, e.g., a briefing schedule that
follows the usual court of appeals pattern (opening-response-
reply). And here, of course, a resentencing follows the
defendant's neglect of her Rule 32(c)(1) opportunity. We see
no reason why omissions occurring at the Rule 32(c)(1) stage
should be governed by a standard more severe than good
cause, unless of course there is some affirmative reason for a
more demanding standard. Compare, e.g., Johnson v. Unit-
ed States, 520 U.S. 461 (1997) (applying plain error standard
on appeal in reviewing a determination of the trial court to
which defendant did not object, but which was declared
erroneous between trial and appeal); United States v. Dale,
140 F.3d 1054, 1056 (D.C. Cir. 1998) ("cause and prejudice"
standard governs an argument raised for the first time on
collateral review and based on a rule adopted after the
conclusion of the direct appeal).

Thus a proper application of Rule 32 required the district
court in resentencing to decide whether McCoy's failure to
raise her Application Note 7 argument was "for good cause
shown." We need not address how that standard would have
applied if the issue had arisen in the initial sentencing, i.e., if
the district court had initially accepted defendant's position
on the managerial role bump. We confine ourselves to the
good cause issue as it arose at resentencing.

 Although the phrase "good cause" might suggest that the
inquiry concerns only the grounds for the defaulting party's
omission, in practice "good cause" inquiries typically range
more broadly, addressing (for instance) adverse effects--
direct or systemic--on opposing parties or the judiciary. See
United States v. Cray, 47 F.3d 1203, 1206-07 (D.C. Cir. 1995)
(holding that the inquiry for the withdrawal of a guilty plea,
characterized as an issue of "good cause," includes consider-
ation of "whether the Government would have been substan-
tially prejudiced"); cf. Yesudian ex rel. United States v.
Howard Univ., 270 F.3d 969, 971 (D.C. Cir. 2001) (assessment
of "excusable neglect" takes into account the "potential im-
pact on judicial proceedings"). In the present context, at
least the following factors--many pressed by the parties,
though to be sure primarily as arguments in the interpreta-
tion of Whren--would seem relevant to the court's exercise of
discretion:

Against a finding of good cause: (1) To the extent that
resolution of the contention required the district court to
conduct any factual analysis, as McCoy claims, loss of the
benefit of the district court's fresh recollection of the trial
would be relevant. (2) If the defendant withheld the claim
for strategic reasons (as the government claims, offering in
support only a possible contradiction between the Application
Note 7 argument and McCoy's sufficiency argument against
both obstruction bumps), it would count against finding good
cause.

In favor of a finding of good cause: (1) As the initial
sentencing played out, the Application Note 7 claim would not
have been determinative at any time in that sentencing. (2)
The claim was doubly contingent, in that it would have been
moot if defendant had won all her stated points in the initial
sentencing and under several varieties of partial victory (e.g.,
if the court had ruled in her favor on the evidentiary basis of
the obstruction bump, or, indeed, any partial victory except
those which left the gap between the offense levels at three or
four). (3) Addressing the claim on the merits will have no
material effect on any party's future incentives, as only a
small fraction of judgments are reversed on appeal, and

parties thus have strong incentives to raise their sentencing
objections early. (4) A person's liberty is at stake.

Factors that could work against the admission of the new
objection, but are absent here: (1) Requirements of additional
fact-finding. The issue here required no new fact-finding, as
it turned on the legal analysis of what constitutes a "signifi-
cant further obstruction," and, in defendant's view, on a
comparison of the offense conduct with defendant's testimony
at trial. (2) Disruption of proceedings. In the scenario in
which it arose, consideration of the Application Note 7 argu-
ment would not have interrupted any proceeding in the
slightest. (3) Prejudice. Its consideration on resentencing
would not have prejudiced the government in any way.

A requirement that the district court consider such factors
as these in applying Rule 32(b)(6)(D) does nothing to disturb
Whren's principle that parties should raise at sentencing the
objections that they have "reason" to raise. Whren, 111
F. 3d at 960. But incentives to raise an issue have different
strengths, and nothing in Whren suggests that parties must
be considered to have "reason" to raise a doubly contingent
objection for which the likelihood of any significance is re-
mote. Since an absolute requirement to raise all objections
(regardless of the degree of relevance) is likely both to waste
judicial resources and work injustice, we have no basis for
imposing such a rule, and indeed are barred from doing so
under Rule 32(b)(6)(D) as we understand it.

In this case, we think it clear that a district court finding of
good cause would not have been an abuse of discretion. We
need not in the end decide whether the opposite, a finding of
no good cause, would have been an abuse of discretion. The
Application Note 7 claim has already been presented to the
panel in McCoy II, and, if it should lack merit, there will be
no need either for an initial good cause ruling by the district
court or any review for abuse of discretion. Given the very
high probabilities (cited above) that a substantive claim will
not prevail, passing that issue back to the panel is likely to
consume fewer judicial resources than would a remand to the

district court. Accordingly we remand the case to the panel
for further proceedings consistent with this opinion.

We understand that district judges' individual experience
may incline them to different preferences as between a high
degree of assurance that even contingent issues are raised
early (at the expense of more time spent either resolving
them or at least recognizing that the contingency has not
materialized) and a low of degree of assurance (with a higher
risk of interruptions for late-raised issues and of successive
hearings for a single defendant). District judges may adopt
standing orders to guide practitioners. See Fed. R. Crim. P.
57(b) (allowing judges to "regulate practice in any manner
consistent with federal law, these rules, and the local rules of
the district").

We note in closing that even an unexcused failure to raise a
claim at sentencing would not automatically bar its consider-
ation on appeal. As we said in Whren, such a claim is still
subject to review for plain error. 111 F.3d at 960. More-
over, because the impact of a sentencing error tends to be
more obvious than that of the typical trial error, and the
consequences of a reversal and remand less disruptive, the
finding of "prejudice" necessary for plain error review is
more readily made. See, e.g., United States v. Saro, 24 F.3d
283, 287-88 (D.C. Cir. 1994).

The case is remanded to the panel.

So ordered.

Karen LeCraft Henderson, Circuit Judge, with whom
Ginsburg, Chief Judge, and Sentelle, Circuit Judge, join,
dissenting:

Under what circumstances may a defendant raise at resen-
tencing an objection that he failed to raise at his original
sentencing? Until today, our decision in United States v.
Whren, 111 F.3d 956 (D.C. Cir. 1997), cert. denied, 522 U.S.
1119 (1998), provided a relatively straightforward and sensi-
ble answer to the district judges of this circuit:

[U]pon a resentencing occasioned by a remand, unless
the court of appeals expressly directs otherwise, the
district court may consider only such new arguments or
new facts as are made newly relevant by the court of
appeals' decision--whether by the reasoning or by the
result.

Whren, 111 F.3d at 960. At best, the majority opinion
misunderstands and misapplies this rule. At worst, the court
has jettisoned Whren sub silentio. Accordingly, and for the
reasons set forth below, I respectfully dissent.

* * *

Before a three-judge panel of this court, the appellant,
JoAnn McCoy, sought remand and reconsideration of the
district court's May 9, 2001 judgment resentencing her to 33
months in prison and five years of supervised release. See
generally United States v. McCoy, 280 F.3d 1058 (D.C. Cir.
2002) (McCoy II). She contended that the district court
erred in refusing to consider her objection--made under
Application Note 7 of U.S.S.G. s 3C1.1--to the obstruction-
of-justice enhancement added to her perjury offense level.
Although McCoy acknowledged that she did not raise the
Note 7 objection at her original sentencing, she argued that
the court's remand for resentencing in United States v.
McCoy, 242 F.3d 399 (D.C. Cir.) (McCoy I), cert. denied, 122
S. Ct. 166 (2001), made the objection "newly relevant." On
February 22, 2002 a divided panel rejected McCoy's conten-
tion, holding that she had waived her Note 7 objection by

failing to raise it at her original sentencing. On June 12 the
full court granted McCoy's petition for rehearing en banc and
vacated the panel's judgment. Today the majority (1) holds
that "a proper application of Rule 32 required the district
court in resentencing to decide whether McCoy's failure to
raise her Application Note 7 argument was 'for good cause
shown,' " maj. op. at 8 (quoting Fed. R. Crim. P. 32(b)(6)(D));
and (2) intimates that McCoy's failure to raise the objection
at her original sentencing was for good cause, see id. at 8-10.
The court errs on both counts.

I.

I do not believe that Rule 32(b)(6)(D) required the district
court at resentencing to decide whether McCoy failed "[f]or
good cause shown" to raise the Note 7 objection at her
original sentencing. Rule 32(a) provides that "[w]hen a
presentence investigation and report are made ... [the]
sentence should be imposed without unnecessary delay follow-
ing completion of the process prescribed by subdivision
(b)(6)." Fed. R. Crim. P. 32(a). In turn, the process pre-
scribed by subdivision (b)(6) requires, first, that the probation
officer furnish the presentence report to the defendant, the
defendant's counsel and the government's counsel. See Fed.
R. Crim. P. 32(b)(6)(A). Next, "[w]ithin 14 days after receiv-
ing the presentence report," the parties are to "communicate
in writing to the probation officer, and to each other," any
objection they have to any of the "sentencing classifications
[or] sentencing guideline ranges ... contained in or omitted
from the presentence report." Fed. R. Crim. P. 32(b)(6)(B).
Not later than seven days before the sentencing hearing, the
probation officer must furnish to the district court and to the
parties the revised presentence report and an addendum
setting forth unresolved sentencing objections. See Fed. R.
Crim. P. 32(b)(6)(C). Finally, pursuant to the provision upon
which the majority places so much weight:

 Except for any unresolved objection under subdivision
(b)(6)(B), the court may, at the hearing, accept the
presentence report as its findings of fact. For good
cause shown, the court may allow a new objection to be
raised at any time before imposing sentence.

Fed. R. Crim. P. 32(b)(6)(D).

Rending a few phrases from the broader context of this
scheme, see maj. op. at 7-8, the majority tortures the Rule
until it confesses. When Rule 32 is read as a whole, see
United Savings Ass'n v. Timbers of Inwood Forest Associ-
ates, 484 U.S. 365, 371 (1988) ("Statutory construction ... is a
holistic endeavor."), Rule 32(b)(6)(D) is construed more plau-
sibly another way. By requiring "completion of the process
prescribed by subdivision (b)(6)" "[w]hen a presentence ...
report [is] made under subdivision (b)(1)," the Rule on its face
contemplates that where, as here, a presentence report is
made at resentencing--the intial report at resentencing being
just as much a "presentence ... report" as the initial report
at the original sentencing--the parties will participate in a
"process" separate from (and no doubt shorter than) the one
undertaken at the original sentencing proceeding. Fed. R.
Crim. P. 32(a) ("The time limits prescribed in subdivision
(b)(6) may be either shortened or lengthened for good
cause."). Rule 32(b)(6)(D)'s inclusion as part of the integrat-
ed (b)(6) procedure manifests that the reference to "a new
objection" includes only those objections unavailable at the
Rule 32(b)(6)(B) stage of any one sentencing. See Fed. R.
Crim. P. 32(b)(6)(B); see also infra note 1. Thus, I do not
read the Rule's "new objection" language to permit a defen-
dant to "revive in the second round an issue he allowed to die
in the first." Whren, 111 F.3d at 960.

Nothing in the Rule precludes the interpretation I urge.
Only one other circuit, the Tenth, adopts the majority's
contrary construction. See United States v. Moore, 83 F.3d

1231, 1235 (10th Cir. 1996) (holding, in section 2255 context,
that district court's refusal to conduct de novo resentencing
"was potentially in conflict with the ability of the parties to
move to raise new issues with respect to the presentence
report at any time prior to the imposition of sentence" where
they have "good cause" to do so (citing Fed. R. Crim. P.
32(b)(6)(B))). The Tenth Circuit, of course, adheres to the de
novo resentencing approach, see United States v. Smith, 930
F.2d 1450, 1456 (10th Cir.) ("fully de novo resentencing is
entirely appropriate" (quotations omitted)), cert. denied, 502
U.S. 879 (1991), an approach we explicitly and wisely rejected
in Whren:

De novo resentencing is in essence a license for the
parties to introduce issues, arguments, and evidence that
they should have introduced at the original sentencing
hearing. The alternative of requiring the parties to raise
all relevant issues at the original sentencing hearing
serves both equity and efficiency: Each party gets early
notice of the other's position, and the district court can
resolve all material issues early on--when the record is
fresh in mind--and in a single proceeding, thereby mini-
mizing the scope of any second proceeding, i.e., should
the first result in a remand.

Whren, 111 F.3d at 959-60. I am baffled by the court's
willingness to adopt an interpretation of Rule 32(b)(6)(D) that
(1) sanctions the wasteful de novo resentencing described
above; (2) effectively overturns Whren, which the majority
does not even attempt to harmonize with the Rule; (3) was
urged by neither party,1 see infra Part II.A; (4) is not the

__________
1 Although the parties expressed in their en banc briefs "views of
the Rule's role," maj. op. at 7, neither even remotely suggested the
role the court propounds. See Supp. Br. of Appellee at 2, 5, 7, 9
n.4; Supp. Reply Br. of Appellant at 2-5. Indeed, McCoy herself
argued that the "good cause" language of Rule 32(b)(6)(D) "applies

most natural reading of the Rule; and (5) cuts against the
case law of the other "waiver" circuits, which do not even
mention the Rule under similar circumstances, much less hold
that it has the broad application the majority suggests. See
United States v. Ticchiarelli, 171 F.3d 24, 32 (1st Cir.)
(adopting Whren's waiver approach without mentioning Rule
32), cert. denied, 528 U.S. 850 (1999); United States v.
Marmolejo, 139 F.3d 528, 530-31 (5th Cir.) (same), cert.
denied, 525 U.S. 1056 (1998); United States v. Parker, 101
F.3d 527, 528 (7th Cir. 1996) (adopting waiver approach
similar to that of Whren without mentioning Rule 32).

I take issue as well with the majority's suggestion that the
language of Rule 32(c)(1) supports permitting McCoy to raise
her Note 7 objection at resentencing. See maj. op. at 7
("Rule 32(c)(1)'s language ... provides a broad opportunity to
comment, and we think McCoy's perjury-specific contention
clearly qualified."). Rule 32(c)(1) provides that

[a]t the sentencing hearing, the court must afford counsel
for the defendant and for the Government an opportunity
to comment on the probation officer's determinations and
on other matters relating to the appropriate sentence,
and must rule on any unresolved objections to the pre-
sentence report.... For each matter controverted, the
court must make either a finding on the allegation or a
determination that no finding is necessary because the
controverted matter will not be taken into account in, or
will not affect, sentencing.

Fed. R. Crim. P. 32(c)(1) (emphasis added). The court's
apparently sweeping view of a party's "opportunity to com-
ment on ... other matters relating to the appropriate sen-
tence," maj. op. at 7 (quoting Fed. R. Crim. P. 32(c)(1)), would
permit at resentencing an objection that at the original
sentencing would not have "immediately affect[ed]" a defen-
dant's combined offense level. Id. But that interpretation
seriously misreads the Rule in its entirety. Rule 32(c)(1)'s
reference to "other matters relating to the appropriate sen-

__________
only to objections that should have been made earlier under Fed. R.
Crim. P. 32(b)(6)(B)." Supp. Reply Br. of Appellant at 4.

tence" does not include McCoy's belated Note 7 objection,
which constitutes instead a "comment on the probation offi-
cer's [previous obstruction-of-justice] determinations." Fed.
R. Crim. P. 32(c)(1). By operation of text and under any
reasonable reading of Rule 32 as a whole, "other matters
relating to the sentence" do not include "comment[s] on the
probation officer's determinations." Id. (emphasis added);
see Webster's Third New International Dictionary, Una-
bridged 1599 (1981) ("other" means "not being the one ...
first mentioned or of primary concern" (emphasis added));
see also United States v. Chung, 261 F.3d 536, 539 (5th Cir.
2001) ("Rule 32(b)(6)(B)'s deadline ... would be meaningless
if the district court were obliged to entertain new objections
at the sentencing hearing" pursuant to Rule 32(c)(1)). In-
deed, the cases that mention "other matters relating to the
appropriate sentence" include "matters" such as a district
court's sua sponte upward (or downward) departure, its impo-
sition of a special condition of supervised release or any other
condition of sentencing "not expressly contemplated by the
[G]uidelines." E.g., United States v. Angle, 234 F.3d 326, 347
(7th Cir. 2000), cert. denied, 533 U.S. 932 (2001); see also, e.g.,
United States v. Hernandez, 251 F.3d 1247, 1250-52 (9th
Cir.), reh'g denied, 280 F.3d 1216 (9th Cir. 2001); United
States v. Queensborough, 227 F.3d 149, 153-55 (3d Cir. 2000),
cert. denied, 531 U.S. 1131 (2001); United States v. Pank-
hurst, 118 F.3d 345, 357 (5th Cir.), cert. denied, 522 U.S. 1030
(1997); United States v. Edgin, 92 F.3d 1044, 1048-49 (10th
Cir. 1996), cert. denied, 519 U.S. 1069 (1997).

The United States Supreme Court has observed that, in
conjunction with the integrated process set forth in Rule
32(b)(6), Rule 32(c)(1) was designed to "promot[e] focused,
adversarial resolution of the legal and factual issues relevant
to fixing Guidelines sentences." Burns v. United States, 501
U.S. 129, 137 (1991). Whren dovetails with a proper reading
of the Rule by requiring the parties to "raise all relevant
issues at the original sentencing hearing," thereby ensuring

that "[e]ach party gets early notice of the other's position [so
that] the district court can resolve all material issues early on
[and] when the record is fresh in mind." Whren, 111 F.3d at
959-60. I acknowledge that Rule 32, Burns and Whren
direct the parties to raise only "relevant" or "material" issues
at the original sentencing--so that they do not waste the
district court's time--but I also recognize (as the majority
does not) that McCoy's Note 7 objection was "relevant" under
circuit precedent. See infra Part II.B.

II.

Even if I were to accept the proposition that Rule
32(b)(6)(D) required the district court at resentencing to
decide whether McCoy failed "for good cause shown" to raise
the Note 7 objection at her original sentencing, I could not
agree with the result reached today because (1) neither the
government nor the defendant relied on the Rule at the panel
stage and neither has urged (at any stage) the interpretation
the majority adopts and applies retroactively; and (2) in any
event, Whren holds by necessary implication that in this
circuit a defendant cannot show "good cause" to raise a "new
objection" at resentencing under Rule 32(b)(6)(D) if he had
incentive to raise the objection earlier.

A.

The court's focus on Rule 32 at the en banc stage is
surprising. Our en banc briefing order directed the parties
"to address in their briefs only the issue of whether the
exception established in United States v. Whren, 111 F.3d 956
(D.C. Cir. 1997), for arguments 'made newly relevant by the
court of appeals' decision--whether by the reasoning or by
the result,' id. at 960, applies to this case." Br. Order.
Although the parties discussed Rule 32 in their supplemental
briefs, neither party described any interplay of the Rule with
Whren. Accordingly, we have been deprived of meaningful
assistance from either the government or the federal public
defender on the matter. In her en banc brief, McCoy did not

submit that Rule 32(b)(6)(D) would have permitted her to
raise her Note 7 objection at resentencing, see supra note 1;
instead she claimed that Whren did not preclude her from
doing so. She did claim that at her original sentencing "the
Note 7 issue was not 'material.' " See Supp. Reply Br. of
Appellant at 3. But that simply brings us back to Whren,
under which we must decide whether the Note 7 objection
became "newly relevant" (i.e., newly "material") after our
remand in McCoy I. I would hold that it did not. See infra
Part II.B.

I am also surprised by the court's willingness to include an
advisory opinion guiding a district court's good cause determi-
nation, see maj. op. at 9-10; the majority's list of possible
good cause factors is unnecessary to deciding the question
before us. Even more disturbing, the court--while conceding
that the question of good cause is within the district judge's
discretion in the first instance--"think[s] it clear that a
district court finding of good cause would not have been an
abuse of discretion." Id. at 10. I am at a loss; how can this
proposition be clear when the parties have had no chance to
test it in an adversarial context, whether before the district
court, the panel or the en banc court?

B.

The court observes that "the Whren test must be under-
stood in light of [Rule 32]," maj. op. at 7, but fails to
acknowledge the converse: the Rule must be understood in
light of the Whren test. Whren holds that

[a] defendant should not be held to have waived an issue
if he did not have a reason to raise it at his original
sentencing; but neither should a defendant be able to
raise an issue for the first time upon resentencing if he
did have reason but failed nonetheless to raise it in the
earlier proceeding.

Whren, 111 F.3d at 960 (emphasis added). The majority's
repeated references to the Note 7 objection as "a contention

that was contingently relevant in the initial sentencing," maj.
op. at 2 (emphasis in original); see also id. at 5 ("potentially
relevant"), 6 ("purely contingent"), 9, 10 ("doubly contin-
gent"), reveal its profound misunderstanding of the Whren
rule. It should be clear by now that Whren defines relevance
(or materiality) in terms of incentive, not of potentiality,
imminence or certainty of effect. In this circuit, there is no
such thing as a "contingently relevant" contention, much less
a "doubly contingent" one; a defendant either has incentive
at the initial sentencing to raise his objection or he does not.
Following Whren jot-for-jot in Ticchiarelli, the First Circuit
recognized this explicitly:

Whether there is a waiver depends not ... on counting
the number of missed opportunities (hearings, motions,
etc.) to raise an issue, but on whether the party had
sufficient incentive to raise the issue in prior proceed-
ings. See United States v. de la Cruz-Paulino, 61 F.3d
986, 994 n.5 (1st Cir. 1995) (noting, in the context of Fed.
R. Crim. P. 12, that "government violations of Rule
12(d)(2) should excuse a defendant's failure to move to
suppress evidence prior to trial ... since defendants
have no incentive to move to suppress evidence that the
government will not be introducing"); see also Whren,
111 F.3d at 960. This approach requires a fact-intensive,
case-by-case analysis.

Ticchiarelli, 171 F.3d at 32-33; see also United States v.
Hass, 199 F.3d 749, 753 (5th Cir. 1999) ("[W]hether a defen-
dant waived an issue for consideration at resentencing is
determined by whether the defendant had an incentive to
raise that issue in the prior proceedings."), cert. denied, 531
U.S. 812 (2000). On the facts of Ticchiarelli, the court found
that the defendant had not waived his resentencing objection
by failing to raise it at his original sentencing because, by the
time of that sentencing, "the district court had already issued
a final ruling, memorialized in a published order" rejecting
the argument. Ticchiarelli, 171 F.3d at 33. Ticchiarelli

plainly lacked incentive to raise the objection at his sentenc-
ing; acknowledging that fact, the court stated that its "waiver
doctrine does not require that a defendant, in order to
preserve his rights on appeal, raise every objection that
might have been relevant if the district court had not already
rejected the defendant's arguments." Id. (emphasis altered);
see also United States v. Rhodes, 145 F.3d 1375, 1378 (D.C.
Cir. 1998) (permitting defendant to raise rehabilitation issue
at resentencing where he "could not have argued at initial
sentencing for a departure based upon post-sentence rehabili-
tative efforts since these efforts had not yet taken place"
(internal quotation and alteration omitted)).

By contrast to Ticchiarelli's new objection, McCoy's Note 7
argument was not rejected by the district court before the
original sentencing. Because she had no idea how the court
was going to rule on any (much less all) of her sentencing
challenges, McCoy had incentive to raise at the outset all
objections she had to the revised presentence report to
ensure that she received the lowest possible Guidelines range.
In other words, McCoy had just as much incentive at sentenc-
ing as at resentencing to keep the gap in her offense levels at
six, thereby minimizing the effect of the multi-group adjust-
ment mandated by U.S.S.G. s 3D1.4. See McCoy II, 280
F.3d at 1063-64 ("Had she persuaded the sentencing judge
[about one of her sentencing challenges] (as, we presume, was
her purpose), McCoy's 'controlling' false statement offenses
level would have been reduced to 18, bringing it within four
points of her perjury offense level and increasing the multi-
group adjustment by one for a combined offense level of 20.");
maj. op. at 2-5 (explaining section 3D1.4's application to this
case). Had she raised the Note 7 claim at her original
sentencing, she would have preserved the objection and avert-
ed the ensuing dispute.

* * *

Today's decision does the district court no favor. Abandon-
ing Whren's bright-line waiver rule, the court (in dicta)

replaces it with a non-exhaustive set of amorphous "McCoy
factors"2 that will inundate district judges with "good cause"
claims at resentencing. Many of those claims are bound to be
as meritless as the one now before us; even if the district
court is able to dismiss them out of hand, the time spent

__________
2 One of the court's factors in favor of finding good cause--"[a]
person's liberty is at stake," maj. op. at 10--is irrelevant. A
person's liberty is always at stake at sentencing. (That is the point,
after all.) The makeweight "liberty factor" does not assist a
sentencing judge to distinguish one new objection from the next.

And although one of the majority's factors against a finding of
good cause--"[i]f the defendant withheld the claim for strategic
reasons," id. at 9--makes substantive sense, the court cavalierly
dismisses the notion that the factor is met here. It seems to me
that McCoy chose for tactical reasons not to raise the Note 7
objection when she was originally sentenced. She did initially
challenge the obstruction-of-justice enhancement on double jeopar-
dy grounds. She argued that because she had been "convicted of
perjury for statements that she made during a bankruptcy proceed-
ing," and because she had made "precisely the same statement"
during her criminal trial, "[t]o convict her of perjury and then to
enhance her sentence on essentially the same conduct is unconstitu-
tional [under] the Double Jeopardy Clause of the Constitution."
McCoy's Supp. Sentencing Mem. at 5 (quoted in McCoy I, 242 F.3d
at 408). On appeal in McCoy I, however, she took the opposite
position; she challenged the enhancement on sufficiency-of-the-
evidence grounds and contended that the two statements were
different. See McCoy I, 242 F.3d at 408 ("McCoy argues ... that
her testimony was not the same in both proceedings...." (emphasis
added)). In McCoy II, she asserts once again that she repeated
"precisely the same statements" at her criminal trial that she made
during the bankruptcy proceeding and that repeated perjury does
not constitute a "significant further obstruction" under Note 7. Br.
of Appellant at 19. Accordingly, even if Whren did not leave
McCoy without "good cause" to raise her new objection at resen-
tencing, the tactics of her counsel would.

The court's failure to include as one of its McCoy factors the
defendant's incentive to raise an objection at his original sentencing,
see maj. op. at 9-10, seems to confirm that, after today, Whren is
nothing more than "a derelict on the waters of the law." Lambert
v. California, 355 U.S. 225, 232 (1957) (Frankfurter, J., dissenting).

considering them will be ill spent.3

So begins the era of de novo resentencing in the D.C.
Circuit. Although some other circuits may be satisfied with
the choice, I thought we had made a better decision. I
respectfully dissent from the remand and would affirm the
district court's May 9, 2001 resentencing judgment.

__________
3 The majority observes that "[d]istrict judges may adopt stand-
ing orders to guide practitioners" pursuant to Fed. R. Crim. P. 57(b).
Maj. op. at 11. I, for one, would recommend they re-adopt Whren.