United States Court of Appeals
FOR T HE D ISTRICT OF CO LUM BIA CIR CUIT
Filed March 18, 2005
No. 03-3087
UNITED STATES OF AMERICA ,
APPELLEE
v.
ARNETT C. SMITH,
APPELLANT
On Petition for Rehearing
Before: ROGERS , GARLAND, and ROBERTS, Circuit Judges.
Opinion for the Court filed PER CURIAM .
PER CURIAM : Appellant Arnett C. Smith petitions for
rehearing of our decision affirming his sentence for conspiracy
and conflict of interest. He contends that his sentence is
unconstitutional under the Sixth Amendment in light of United
States v. Booker, 125 S. Ct. 738 (2005). Smith did not raise any
Sixth Amendment claim when the sentence at issue was imposed
by the district court, and accordingly our review is limited to
plain error. Because Smith has not shown any prejudice he
cannot satisfy the test for plain error, and we deny the petition.
See id. at 769 (in applying Booker, “we expect reviewing courts
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to apply ordinary prudential doctrines, determining, for example,
whether the issue was raised below and whether it fails the
‘plain-error’ test”).
At his initial sentencing, Smith did argue that enhancements
and upward departures under the Federal Sentencing Guidelines
violated his Sixth Amendment right to a jury trial. We vacated
and remanded that sentence on other grounds not relevant here.
United States v. Smith, 267 F.3d 1154 (D.C. Cir. 2001). At
resentencing, Smith failed to raise the constitutional challenge
anew, and we eventually affirmed his sentence. United States v.
Smith, 374 F.3d 1240 (D.C. Cir. 2004). As it is this latter
disposition that Smith now asks us to revisit, and as that
disposition dealt only with the proceedings on remand, Smith’s
election not to re-raise the challenge below means that he has
failed to preserve it for appellate review. Smith’s alternate
argument, that circuit precedent at the time of remand rendered
any objection futile, lacks merit. See Johnson v. United States,
520 U.S. 461, 464 (1997) (intervening change in law no excuse
for failure to object).
Accordingly, we review the sentence only for plain error.
FED . R. CRIM . P. 52(b). Smith fails the plain error test because
he cannot show that the constitutional error in this case had a
prejudicial effect. See United States v. Dominguez Benitez, 124
S. Ct. 2333, 2339 (2004). The district judge, on each of the prior
two sentencings, imposed a sentence beyond what the Guide-
lines require. The first time, he departed upward and sentenced
Smith to 46 months, adding that “I believe, in my view, that you
deserve the sentence that will be imposed here.” On remand, the
judge was forced to impose a shorter sentence — 21 months —
but again reached the figure by departing upward, even though
the government had not requested an upward departure on
resentencing.
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Booker’s requirement that the sentencing judge appreciate
that he is not bound by the Guidelines thus plainly cannot help
Smith. Smith implicitly acknowledges this in the relief he seeks
— resentencing with an instruction precluding the trial court
from imposing a sentence higher than 21 months. He recognizes
that giving the district judge wider latitude in this case could
very well result in a longer sentence. Smith was not prejudiced
by the impermissibly mandatory nature of the Guidelines; if
anything, he benefitted from it.
The petition for rehearing is denied.