United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 16, 2005 Decided December 13, 2005
No. 04-3129
UNITED STATES OF AMERICA,
APPELLEE
v.
JOSEPH B. SIMPSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00096-01)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender. Neil H. Jaffee and Mary M. Petras,
Assistant Federal Public Defenders, entered appearances.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Kenneth L. Wainstein,
U.S. Attorney, John R. Fisher, Assistant U.S. Attorney at the
time the brief was filed, and Roy W. McLeese, III, Catharine A.
Hartzenbusch, and Mary B. McCord, Assistant U.S. Attorneys.
2
Before: GARLAND, Circuit Judge, and SILBERMAN and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
Concurring opinion filed by Senior Circuit Judge
SILBERMAN.
GARLAND, Circuit Judge: Joseph B. Simpson, a citizen of
Jamaica, pled guilty to re-entering the United States unlawfully
after having been deported following conviction for an
aggravated felony. Due to uncertainty regarding the continued
validity of the United States Sentencing Guidelines in the
months after the Supreme Court decided Blakely v. Washington,
542 U.S. 296 (2004), the district court imposed a 46-month
prison term under two separate rationales. The court first
sentenced Simpson by applying the Guidelines as mandatory; it
then sentenced him as it would in its discretion, treating the
Guidelines as advisory only. Simpson now appeals, seeking a
remand to the district court for re-sentencing in light of the
Supreme Court’s decision in United States v. Booker, 125 S. Ct.
738 (2005). We conclude that the alternative sentencing
methodology employed by the district court was consistent with
the Supreme Court’s subsequent decision in Booker and that
Simpson’s sentence must therefore be affirmed.
I
On October 6, 2000, Simpson was convicted in federal
court in Virginia of conspiring to possess with intent to
distribute 100 kilograms or more of marijuana. As a result of
that conviction, Simpson was deported from the United States
on October 23, 2003. See 8 U.S.C. § 1227(a)(2)(A)(i)(II). Two
months later, using a false name, Simpson re-entered the United
States near Port Everglades, Florida. One month after re-
3
entering the country, Simpson was arrested in the District of
Columbia for threatening to kill his wife with a kitchen knife.
Fingerprints and photographs revealed Simpson’s true identity,
and on February 27, 2004, he was indicted on one count of re-
entry by an alien deported following conviction for an
aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2).
Simpson signed an agreement to plead guilty to the
indictment. The parties agreed that Simpson’s base offense
level under the Sentencing Guidelines was 8, and that his
offense level should be enhanced to 24 “because the defendant
was previously deported after a conviction for a drug trafficking
offense for which the sentence imposed was greater than 13
months.” Plea Agreement 2; see U.S.S.G. § 2L1.2(b)(1)(A).
The parties further agreed that the offense level should be
reduced by 3 levels to 21, due to Simpson’s acceptance of
responsibility. See U.S.S.G. § 3E1.1. The plea agreement did
not include a stipulation regarding Simpson’s criminal history
category. The district court accepted the plea at a hearing on
June 10, 2004, and it scheduled sentencing for August 25.1
Following entry of the plea, the U.S. Probation Office
prepared a Presentence Report (PSR) that accepted the parties’
calculation of Simpson’s offense level. The PSR also placed
Simpson in criminal history category III. That calculation was
based on the PSR’s finding of a total of 5 criminal history
1
The plea agreement included a waiver of Simpson’s right to
appeal any sentence imposed by the court, unless the sentence
exceeded the statutory maximum or was the consequence of an
upward departure from the applicable Guidelines range. Plea
Agreement 3. The government relies on this as an independent ground
for affirmance. Because we conclude that the court’s alternative
sentence is a sufficient ground, it is unnecessary for us to consider the
validity of the waiver.
4
points: 3 points for Simpson’s marijuana conspiracy conviction
and sentence, see U.S.S.G. § 4A1.1(a), and 2 additional points
for committing the re-entry offense while still under sentence
(supervised release) for the marijuana conviction, see id. §
4A1.1(d). At the subsequent sentencing hearing, the district
court agreed with the PSR’s offense level calculation, but added
another criminal history point because the re-entry offense was
committed less than two years after Simpson’s release from
imprisonment. See id. § 4A1.1(e).2 The resulting 6 criminal
history points did not change Simpson’s criminal history
category, which remained at III. See U.S.S.G. Ch. 5, Pt. A. The
combination of offense level 21 and criminal history category III
yielded a Guidelines sentencing range of 46-57 months’
imprisonment. See id.
In the interim between Simpson’s plea and sentencing, the
Supreme Court decided the Blakely case, in which it invalidated
a Washington state determinate sentencing regime similar to the
U.S. Sentencing Guidelines. The Court held that a sentencing
court violates the Sixth Amendment when it imposes a sentence
higher than the statutory maximum sentence it “may impose
solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant.” Blakely, 542 U.S. at 303. Relying
on Blakely, Simpson’s counsel challenged the calculation of her
client’s criminal history category as a violation of the Sixth
Amendment, arguing that the category had been assigned on the
basis of facts Simpson had not admitted. Def.’s Objections to
PSR 2. In particular, she argued that, even if Simpson had
admitted the facts necessary to assign him 3 points for the
marijuana conspiracy conviction, those 3 points would only put
2
The PSR stated that Simpson’s marijuana conviction had
resulted in a sentence of 36 months’ imprisonment followed by four
years of supervised release, and that Simpson had been released from
prison on August 15, 2003 and subsequently deported. PSR ¶ 24.
5
him in category II, which would yield a lower sentencing range
(41-51 months). See Appellant’s Br. 4. The calculation that
raised the criminal history category to III, she contended,
required the court to find additional facts -- that Simpson was on
supervised release at the time of his unlawful re-entry and/or
that he had committed that offense less than two years after
release from imprisonment. Simpson’s counsel asserted that he
had not admitted those facts, and that Blakely therefore barred
the court from using them to sentence him.3 Accordingly, she
asked the sentencing judge to “just use your discretion.”
Sentencing Hr’g Tr. 8 (August 25, 2004).
At the August 25 sentencing hearing, the district court
advised the parties that, in light of Blakely, it would give
Simpson “alternative sentences”: one as if the Guidelines were
“controlling,” and one as if the Guidelines were “not
controlling” but could be looked to “for whatever assistance . .
. [the court] might be able to get from them.” Id. at 25. With
respect to the latter, the court invited the parties to give it “the
assistance that you would like to give . . . with respect to what
sentence should be imposed.” Id. at 26. Simpson’s counsel
objected that the court should not announce an alternative
sentence that would be “automatically imposed” if the Court of
Appeals were to determine that the Guidelines sentence was
unconstitutional, because “it doesn’t give the defendant a chance
to respond to whatever it is the Court says was wrong with the
first sentence.” Id. at 27. Counsel then went on to cite
circumstances that she thought justified sentencing Simpson “at
the lowest level of whatever guideline range, should the court
3
Simpson’s counsel also argued that Blakely’s exception for “‘the
fact of a prior conviction,’” 542 U.S. at 301 (quoting Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000)), did not extend to whether the
instant offense took place while he was on supervised release or within
two years after release from imprisonment. See infra note 8.
6
impose a guideline range, or if the Court views the guidelines
only as guidelines and not mandatory, . . . [to] a sentence less
than what the guidelines would otherwise dictate.” Id.
The district court proceeded to sentence Simpson under
each of the two approaches. Turning first to the Guidelines, the
court set forth the calculations outlined above, concluding that
Simpson’s offense level was 21, that his criminal history
category was III, and that the resulting Guidelines sentencing
range was 46-57 months. The court then sentenced Simpson to
the bottom of that range, imposing a sentence of 46 months’
imprisonment, followed by two years of supervised release. Id.
at 46-48.
The court next addressed the appropriate sentence in the
event the Guidelines were not controlling:
I would take into account and do take into account the
seriousness of this offense, that it was a conscious,
intentional decision by the defendant following a
conviction for an aggravated felony offense and
deportation from the United States and that the Court
is not confident that Mr. Simpson would not choose to
return to the United States illegally in the future as
well, and that the guidelines, using them only as a
reference point, would suggest that an appropriate
sentence for this offense should be in the range of 46 to
57 months based on a particular criminal history
category.
I find in my discretion, without the guidelines, that the
appropriate sentence would be at 46 months, that that
is a sentence that addresses the interests of the criminal
justice system and addresses the interests and
sentencing objectives of punishment and deterrence
7
and is the sentence that the Court imposes in its
discretion, given all the facts and circumstances
relevant here.
Id. at 49.
Simpson noted an appeal on September 2, 2004. On
January 12, 2005, the Supreme Court issued its opinion in
United States v. Booker, which held that Blakely applied to the
U.S. Sentencing Guidelines and that the mandatory imposition
of enhanced sentences under the Guidelines violated the Sixth
Amendment. 125 S. Ct. at 746. In light of this holding, the
Court invalidated two statutory provisions that had the effect of
making the Guidelines mandatory. Id. We now consider
Simpson’s appeal in the wake of Booker.
II
We begin with a discussion of Booker and of the legal
doctrines governing appellate review of sentencing error. That
discussion will guide the analysis in the balance of this opinion.
A
The Supreme Court’s decision in Booker consisted of two
separate majority opinions. In the first, “substantive” opinion,
the Court held that the Sixth Amendment is violated when a
court imposes a sentence under the Sentencing Guidelines based
on its own determination of “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding
the maximum authorized by the facts established by a plea of
guilty or a jury verdict . . . .” Booker, 125 S. Ct. at 756. The
Court emphasized, however, that its conclusion “rests on the
premise . . . that the relevant sentencing rules are mandatory and
impose binding requirements on all sentencing judges.” Id. at
8
749-50. “If the Guidelines as currently written could be read as
merely advisory provisions that recommended, rather than
required, the selection of particular sentences in response to
differing sets of facts,” the Court said, “their use would not
implicate the Sixth Amendment” regardless of whether they
enhanced a sentence above that consistent with a plea or verdict.
Id. at 750.
In the second, “remedial” opinion, the Court found that the
federal statutory provisions making the Guidelines mandatory
were “incompatible with [Booker’s] constitutional holding” and
had to be “severed and excised.” Id. at 756. “So modified,” the
Court said, “the Federal Sentencing Act . . . makes the
Guidelines effectively advisory.” Id. at 757. The modified
statute, the Court explained, “requires the sentencing court to
consider Guidelines ranges, see 18 U.S.C.A. § 3553(a)(4) (Supp.
2004), but it permits the court to tailor the sentencing in light of
other statutory concerns as well, see § 3553(a) (Supp. 2004).”
Id.4
The Booker decision resolved two companion cases, one
involving defendant Freddie Booker and another involving
defendant Ducan Fanfan. The two dispositions identified two
kinds of sentencing error. With respect to the sentence of
Freddie Booker, the Court found constitutional error under the
Sixth Amendment because, in obeying the mandatory
Guidelines regime, the judge had increased Booker’s sentence
beyond the maximum that could have been imposed based
4
Booker further stated that the statute continues to provide for
appellate “review [of] sentencing decisions for unreasonableness.”
125 S. Ct. 738, 767 (2005); see id. at 765-67. Simpson, however, has
not objected to his sentence on any ground other than those considered
in Part III.
9
solely on the facts reflected in the jury verdict. Id. at 769.5 By
contrast, the Court found no constitutional violation in defendant
Ducan Fanfan’s sentence -- which was the maximum Guidelines
sentence authorized by the jury’s verdict without additional
findings of fact. Id. at 769.6 Nonetheless, the Court vacated
Fanfan’s sentence and remanded to permit either party to seek
resentencing “under the system set forth” in the Booker
opinions, because the district court had committed non-
constitutional error by applying the Guidelines in a mandatory
rather than advisory fashion. Id.
The Supreme Court’s conclusion that the sentencing courts
in the companion cases had erred followed from the Court’s
ruling that it “must apply today’s holdings -- both the Sixth
Amendment holding and our remedial interpretation of the
Sentencing Act -- to all cases on direct review.” Id. at 769; see
also Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (holding that
a “new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases . . . pending on direct review .
. . , with no exception for cases in which the new rule constitutes
a ‘clear break’ with the past”). As a consequence, on direct
review appellate courts must regard any sentencing
methodology that was materially inconsistent with the Booker
5
The jury found that Booker had possessed with intent to
distribute at least 50 grams of cocaine base. Booker, 125 S. Ct. at 746.
Although the Guidelines indicated a sentence of 210-262 months for
that amount, the district court increased the sentence to 360 months
based on its own finding that Booker had possessed an additional 566
grams of cocaine base and had also obstructed justice. Id.
6
Fanfan’s jury found him guilty of conspiracy to distribute and to
possess with intent to distribute at least 500 grams of cocaine powder.
Under the Guidelines, the maximum sentence authorized by the jury
verdict -- without additional findings of fact -- was 78 months, which
was the sentence the district court imposed. Booker, 125 S. Ct. at 747.
10
remedial opinion -- and not just the mandatory application of the
Guidelines -- as Booker error. A district court’s failure to
consider the sentencing factors listed in 18 U.S.C. § 3553(a), for
example, is a species of such non-constitutional (statutory) error.
See United States v. Crosby, 397 F.3d 103, 115 (2d Cir. 2005);
infra Part III.B.
B
When a defendant does not timely object to an error in the
district court, appellate review is limited by the “plain error”
standard: “[T]here must be (1) error, (2) that is plain, and (3)
that affect[s] substantial rights. If all three conditions are met,
an appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.”
Johnson v. United States, 520 U.S. 461, 467 (1997) (internal
citations and quotation marks omitted); see also FED. R. CRIM.
P. 52(b). Under the plain error standard, it “is the defendant
rather than the Government who bears the burden of persuasion
with respect to prejudice.” United States v. Olano, 507 U.S.
725, 734 (1993).
If a defendant does timely object to an alleged error in the
district court, appellate review is instead conducted in
accordance with the “harmless error” standard: If the district
court erred, we must correct the error if it affects the defendant’s
“substantial rights.” See FED. R. CRIM. P. 52(a). “[I]n most
cases[, this] means that the error must have been prejudicial: It
must have affected the outcome of the district court
proceedings.” Olano, 507 U.S. at 734. The government bears
the burden of proving that prejudice did not result from the
error. See id.
11
The test for harmless error comes in two models, one for
non-constitutional error and one for error of constitutional
dimension. See United States v. Powell, 334 F.3d 42, 45 (D.C.
Cir. 2003). A constitutional error is harmless if it appears
“beyond a reasonable doubt that the error complained of did not
contribute to the [sentence] obtained.” Chapman v. California,
386 U.S. 18, 24 (1967). By contrast, a non-constitutional error
is harmless if it did not have a “substantial and injurious effect
or influence in determining” the sentence. Kotteakos v. United
States, 328 U.S. 750, 776 (1946).
III
Simpson contends that the district court committed
constitutional Booker error by increasing his statutory maximum
based on the court’s own findings of fact under a mandatory
guidelines system. Further, because his trial counsel timely
objected on that ground, Simpson contends that his sentence
may be affirmed only if the error was harmless. Finally,
insisting that the error was not harmless, Simpson argues that his
sentence should be vacated and his case remanded for
resentencing.
The threshold question is whether there was error at all.
Although the district court spoke of imposing two “sentences,”
a primary and an alternative, the “judgment in a criminal case”
filed by that court records only a single sentence: 46 months’
imprisonment. J.A. 28-29. The judgment states that the
sentence “is imposed pursuant to the Sentencing Reform Act of
1984” and that, “[a]lternatively, the same sentence is imposed
by the Court in its discretion assuming the Sentencing
Guidelines do not apply.” Id. at 28 (emphasis added).7
7
For this reason, we have no occasion to consider what the
appropriate disposition would be if the district court had announced a
12
There is no question that the court’s first rationale (and
“sentence”) was error under Booker, as it was calculated based
on a mandatory application of the Guidelines.8 But “[i]n cases
on appeal from the district court, we are to review ‘judgments,
not opinions.’” People’s Mojahedin Org. of Iran v. U.S. Dep’t
of State, 182 F.3d 17, 23 n.7 (D.C. Cir. 1999) (quoting Chevron
U.S.A. Inc. v. Natural Resources Def. Council, 467 U.S. 837,
842 (1984)); see Black v. Cutter Laboratories, 351 U.S. 292,
297 (1956). Of course, a sentence based on an invalid rationale
may be erroneous. But here, the district court provided two
independent rationales for the same sentence of 46 months. If
the alternative rationale is sufficient to support that judgment,
the judgment must be upheld. See, e.g., United States v. Jones,
948 F.2d 732, 740-41 (D.C. Cir. 1991) (affirming a Guidelines
departure that rested on both permissible and impermissible
grounds); United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir.
different alternative sentence.
8
The parties dispute whether the error in the first sentence was
constitutional or non-constitutional. The dispute is generated by the
parenthetical caveat to Booker’s constitutional holding: “Any fact
(other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt.” Booker, 125 S. Ct. at
756 (emphasis added). Simpson contends that the district court’s
determination that he was still under a criminal justice sentence at the
time of the instant offense, and that the instant offense was committed
less than two years after his release from imprisonment, are not within
the “fact of a prior conviction” exception. If correct, this would mean
that Simpson’s first sentence was unlawful due to a Sixth Amendment
violation and not merely due to the mandatory application of the
Guidelines. Because we conclude that the court’s alternative sentence
requires affirmance in any event, we need not determine the scope of
the exception to resolve this appeal.
13
2000) (upholding a district court’s evidentiary ruling on that
court’s alternative ground); United States v. Lugg, 892 F.2d 101,
105 (D.C. Cir. 1989) (denial of rehearing en banc) (finding no
error in a decision due to a valid independent ground).
On first glance, it does not appear that there was a material
error in the alternative rationale relied on by the district court.
In United States v. Coles, 403 F.3d 764 (D.C. Cir. 2005), a plain
error case, we said that “[a] prescient pre-Booker sentencing
court committing no error would have behaved just as a
sentencing court in the post-Booker era will operate: it would
have treated the Guidelines as advisory.” Id. at 768 (emphasis
added). The district court here looks very much like that
hypothetically prescient court. It considered the Guidelines as
a “reference point,” Sentencing Hr’g Tr. 49, and cited a number
of other factors relevant under § 3553(a) as well, see id. In the
balance of this Part, we consider three specific errors that
Simpson nonetheless contends are reflected in the district court’s
alternative rationale.
A
Simpson’s first contention is that the court’s imposition of
an alternative sentence violated “the long-standing judicial
canon prohibiting advisory opinions.” Appellant’s Br. 8. At
oral argument, Simpson conceded that this was not a reference
to “advisory opinions” in the Article III sense, since there was --
and continues to be -- a live dispute between the parties that the
federal courts must adjudicate. Cf. Flast v. Cohen, 392 U.S. 83,
95-97 (1968) (noting that the proscription against advisory
opinions is based on Article III’s limitation of the federal
judicial power to “Cases” and “Controversies”). Rather, he
contends that the announcement of an alternative sentence
violates prudential norms.
14
We disagree. As discussed above, Simpson’s alternative
sentence was essentially an independent ground by which the
district court reached the same judgment -- a sentence of 46
months’ imprisonment -- and thereby hoped to avoid the need
for resentencing if the constitutional challenge came out as the
court expected it would. The provision of alternative rationales
for the same judgment does not violate prudential norms; to the
contrary, it is a common component of judicial opinions.9 We
find no error in the district court’s decision merely to announce
an alternative sentence.
B
Simpson’s second contention is that Booker’s remedial
opinion requires courts to base sentences on the factors listed in
18 U.S.C. § 3553(a), and that the district court did not do so
here. Section 3553(a) enumerates a number of factors that a
court “shall” consider in imposing a sentence. These include the
(now advisory) range established by the Guidelines. See 18
U.S.C. § 3553(a)(4). But they also include such factors as “the
nature and circumstances of the offense and the history and
characteristics of the defendant,” id. § 3553(a)(1); the need for
the sentence to “reflect the seriousness of the offense,” to
9
In the 1980s, appellate courts upheld the imposition of
alternative sentences in anticipation of a different challenge to the
constitutionality of the Guidelines, one that was ultimately resolved in
Mistretta v. United States, 488 U.S. 361 (1989). See, e.g., United
States v. Draper, 888 F.2d 1100 (6th Cir. 1989); United States v.
Brittman, 872 F.2d 827 (8th Cir. 1989). And in the period between
Blakely and Booker, several circuits expressly endorsed the calculation
of alternative sentences in order to avoid resentencing if the
Guidelines were invalidated. See, e.g., United States v. Dickerson,
381 F.3d 251, 260 n.9 (3d Cir. 2004); United States v. Hammoud, 381
F.3d 316, 353-54 (4th Cir. 2004); United States v. Booker, 375 F.3d
508, 515 (7th Cir. 2004).
15
“promote respect for the law,” to “provide just punishment,” to
“afford adequate deterrence,” to “protect the public,” and to
“provide the defendant with needed . . . training [and] medical
care,” id. § 3553(a)(2); and the need to “avoid unwarranted
sentence disparities” among similarly situated defendants, id. §
3553(a)(6).
Simpson is correct that Booker required sentencing courts
to consider the § 3553(a) factors. 125 S. Ct. at 764 (“Without
the ‘mandatory’ provision, the [Federal Sentencing] Act
nonetheless requires judges to take account of the Guidelines
together with [the] other sentencing goals. See 18 U.S.C.A. §
3553(a) (Supp.2004).”). In so doing, however, the Supreme
Court did not create a wholly new obligation. As Simpson
acknowledges, see Appellant’s Br. 19, judges have been
required to consider the § 3553(a) factors “in determining the
particular sentence to be imposed,” 18 U.S.C. § 3553(a), since
the enactment of the Sentencing Reform Act of 1984. See 18
U.S.C. § 3582; see also Koon v. United States, 518 U.S. 81, 108
(1996) (“The statute requires a court to consider the listed goals
. . . . in determining which sentence to choose from a given
Guideline range or from outside the range, if a departure is
appropriate.”).
The district court made clear that it did consider those
factors. In explaining its alternative sentence, the court
expressly addressed the nature and circumstances of the offense
and the history and characteristics of the defendant:
[I take] into account the seriousness of this offense,
that it was a conscious, intentional decision by the
defendant following a conviction for an aggravated
felony offense and deportation . . . and that the Court is
not confident that Mr. Simpson would not choose to
16
return to the United States illegally in the future as
well.
Sentencing Hr’g Tr. 49. The court also took into account “the
interests of the criminal justice system” and “the interests and
sentencing objectives of punishment and deterrence.” Id. All of
this sounds in the terms of § 3553(a), and the court’s references
manifest an understanding of its statutory responsibility. See
United States v. Solis-Vaquera, No. 04-3627, 2005 WL
2108318, at *1 (7th Cir. Sept. 2, 2005) (inferring that a
sentencing court had examined the § 3553(a) factors from the
fact that it referenced three of them, albeit without statutory
citation).
It is true that the district court did not specifically refer to
each factor listed in § 3553(a). But we have not required courts
to do so. See United States v. Ayers, 428 F.3d 312, 315 (D.C.
Cir. 2005) (“[W]e ordinarily presume a district court imposing
an alternative non-guidelines sentence took into account all the
factors listed in § 3553(a) and accorded them the appropriate
significance.”). Nor have other circuits. See United States v.
Robles, 408 F.3d 1324, 1328 (11th Cir. 2005); cf. Crosby, 397
F.3d at 112-13 (noting that the Second Circuit’s previous
decisions involving “a sentencing judge’s duty to ‘consider’
matters relevant to sentencing . . . . have refrained from
imposing any rigorous requirement of specific articulation by
the sentencing judge”). Section 3553(c) provides that “[t]he
court, at the time of sentencing, shall state in open court the
reasons for its imposition of the particular sentence.” 18 U.S.C.
§ 3553(c). The district court met that requirement here, and the
statute does not require more in the way of explanation. See
United States v. Bridges, 175 F.3d 1062, 1066 (D.C. Cir. 1999);
United States v. Dozier, 162 F.3d 120, 124-25 (D.C. Cir.
17
1998).10 When a defendant has not asserted the import of a
particular § 3553(a) factor, nothing in the statute requires the
court to explain sua sponte why it did not find that factor
relevant to its discretionary decision. And nothing in Booker
added such a requirement. See Robles, 408 F.3d at 1328 (“Even
[post-Booker], we would not expect the district court in every
case to conduct an accounting of every § 3553(a) factor . . . and
expound upon how each factor played a role in its sentencing
decision.”); see also United States v. Dean, 414 F.3d 725, 728
(7th Cir. 2005) (rejecting the contention that “it is the duty of the
sentencing judge, in every case and whether or not the defendant
invokes any of the factors mentioned in section 3553(a), to make
an explicit, articulated analysis of all of them a part of the
sentencing process”); United States v. George, 403 F.3d 470,
472-73 (7th Cir. 2005) (“Judges need not rehearse on the record
all of the considerations that 18 U.S.C. § 3553(a) lists; it is
enough to calculate the range accurately and explain why (if the
sentence lies outside it) this defendant deserves more or less.”).11
10
Something more is required if a district court imposes a
sentence outside the Guidelines range. Section 3553(c)(2) provides
that, if a sentence “is not of the kind, or is outside the range” described
by the Guidelines, the court must state “the specific reason for the
imposition of a sentence different from that described, which reasons
must also be stated with specificity in the written order of judgment
and commitment.” 18 U.S.C. § 3553(c)(2) (emphasis added); see also
United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005) (“[T]he
farther the judge’s sentence departs from the guidelines sentence . . .
, the more compelling the justification based on factors in section
3553(a) that the judge must offer in order to enable the court of
appeals to assess the reasonableness of the sentence imposed.”).
11
Even if we were to regard the district court’s imposition of the
alternative sentence as erroneous because the court did not expressly
recognize its obligation to consider all of the § 3553(a) factors, such
an error would be statutory, not constitutional. See supra Part II.A.
18
C
Simpson’s third contention is that, by concomitantly
imposing primary and alternative sentences, the district court
violated his “right to be present at his sentencing and to have an
opportunity to present argument under now-applicable law.”
Appellant’s Br. 7-8. The first half of this contention need not
detain us, since Simpson was present at the sentencing hearing
at which his (single) 46-month term was imposed. The real
question is posed by the second half of the contention: Did
Simpson have an opportunity at that hearing to present argument
consistent with the law Booker later set down?
Simpson contends that he did not have such an opportunity
because there were a variety of mitigating circumstances that
courts were not permitted to consider -- or to consider fully --
under the mandatory Guidelines regime that preceded Booker.
Simpson’s opening brief contains a single such example. He
argues that, due to his status as a deportable alien, he faces “a
fortuitous increase in the severity of his sentence” -- by which
he means that he is ineligible for early release to community
confinement or assignment to a minimum security prison.
Appellant’s Br. 20. And Simpson notes that, pre-Booker, some
courts had held that downward departures from the Guidelines
sentencing range on the ground of such ineligibility were not
available in unlawful re-entry cases. See, e.g., United States v.
Ebolum, 72 F.3d 35, 38-39 (6th Cir. 1995).
Accordingly, we would regard it as harmless if it did not have a
“substantial and injurious effect” on the sentence. Kotteakos, 328 U.S.
750, 776 (1946); see supra Part II.B. The court’s failure to expressly
address the § 3553(a) factors did not have such an effect here, as the
court made clear that it would consider any factor the defense thought
relevant to mitigating the sentence.
19
In his reply brief, Simpson cites a second mitigating
circumstance that he contends he was likewise unable to
advance pre-Booker. He argues that, as an unlawful re-entrant
arrested in the District of Columbia, he faces a stiffer sentence
than similar re-entrants arrested in border jurisdictions with
“fast-track” departure programs. See United States v. Banuelos-
Rodriguez, 215 F.3d 969, 971 (9th Cir. 2000) (noting that, under
the fast-track program in one California district, most unlawful
re-entrants are permitted to plead to an offense that carries a
two-year statutory maximum sentence). In light of § 3553(a)(6),
Simpson contends, he should have been able to ask the court to
reduce his sentence to avoid that disparity. See 18 U.S.C. §
3553(a)(6) (requiring the sentencing court to consider “the need
to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct”).
The flaw in Simpson’s general argument is that, although
consideration of some mitigating factors was indeed barred (or
limited) under the mandatory Guidelines regime, see Koon, 518
U.S. at 92-95, the alternative sentencing methodology employed
by his sentencing court did not treat the Guidelines as
mandatory. Nor did the court exclude or limit its consideration
of any category of sentencing factors. To the contrary, the court
extended Simpson an open-ended invitation to make mitigating
arguments, regardless of whether they would have been
available under the Guidelines scheme. See Sentencing Hr’g Tr.
25-26. And Simpson responded to that invitation by citing a
series of factors in support of a sentence well below the
Guidelines range. See Sentencing Hr’g Tr. 27-34.12
12
Simpson’s trial counsel argued that: (1) Simpson had only re-
entered the United States because he feared retribution from gang
members in Jamaica; (2) Simpson understood that he would again be
deported and he had no intent to re-enter the United States thereafter;
20
Accordingly, and contrary to his contention on appeal, Simpson
did have an opportunity at his sentencing hearing to present
argument consistent with the law as later set forth in Booker.
It is true that the district court did not address the two
specific mitigating circumstances Simpson cites in his appellate
briefs. That was not, however, because the court barred their
consideration. Rather, it was because Simpson failed to suggest
them. In the closest analogy under the mandatory Guidelines
regime, this Circuit initially ruled that it could not discern error
at all in a court’s failure to address unrequested grounds for a
discretionary sentencing departure. See United States v.
Leandre, 132 F.3d 796, 808 (D.C. Cir. 1998) (holding that “the
district court cannot be faulted for failing sua sponte to also
address whether [the defendant’s] deportable status would affect
the severity of his sentence”); see also United States v. Pinnick,
47 F.3d 434, 440 (D.C. Cir. 1995). In later cases, we settled on
a plain error standard of review for such claims. See United
States v. Draffin, 286 F.3d 606, 609 (D.C. Cir. 2002) (holding
that the failure to grant a sentencing departure on an unrequested
ground is reviewable only for plain error); In re Sealed Case,
204 F.3d 1170, 1173 (D.C. Cir. 2000) (same).
We cannot find plain error here. To establish the second
element of plain error, see supra Part II.B, an appellant must
show that, “from the perspective of the trial court, the claimed
error was so plain that the trial judge and prosecutor were
derelict in countenancing it, even absent the defendant’s timely
and (3) Simpson had tried to cooperate with the government after his
arrest. See Sentencing Hr’g Tr. 27-35. His counsel contended that, in
light of these considerations and the fact that he would still have to
answer to a federal court in Virginia for violating his supervised
release, the district court should “consider imposing a sentence of time
served.” Id. at 34.
21
assistance in detecting it.” Draffin, 286 F.3d at 610 (internal
quotation marks omitted). Given the multitude of factors
potentially relevant in a discretionary sentencing scheme, we
must be particularly cautious in finding plain error when trial
counsel has failed to suggest a particular factor, lest we end up
remanding whenever appellate counsel asserts a factor her
predecessor did not. Indeed, under the prior sentencing regime,
we held that “[o]rdinarily, [plain] error will not be found where
the lawyer fails to propose a discretionary departure ground . .
. .” Draffin, 286 F.3d at 610; see also Leandre, 132 F.3d at 808.
Moreover, given the district court’s adoption of an alternative
sentencing methodology under which it was willing to consider
any mitigating circumstances, Simpson cannot satisfy his burden
of proving (under the third element of the plain error test) that,
if only the court had had the benefit of reading Booker itself,
there is a reasonable likelihood it would have considered these
two specific circumstances and imposed a sentence materially
more favorable to the defendant. See Coles, 403 F.3d at 767;
United States v. Saro, 24 F.3d 283, 288 (D.C. Cir. 1994).
Recognizing the hurdle posed by relying on arguments that
he could have asserted at sentencing, Simpson added a new twist
to his “fast-track” disparity contention at oral argument. Noting
that prior to Booker he could not have anticipated how post-
Booker courts would treat unlawful re-entrants, Simpson
complained that he was therefore disabled from pointing out
disparities in the way that border and non-border courts would
sentence such offenders after Booker. In short, Simpson insisted
he could not effectively make a § 3553(a)(6) argument based on
fast-track disparities until a post-Booker track record of such
disparities developed.
This argument proves too much. Thanks to its prescience
regarding the fate of the Guidelines, Simpson’s sentencing court
was in approximately the same position as that of the first
22
district courts to render sentences after Booker. Yet it cannot be
argued that those early post-Booker sentences must also be
vacated because their recipients did not have the opportunity to
compare their sentences with sentences imposed even later.
Indeed, on Simpson’s theory, no sentencing could ever be the
first. Each would have to await others so that there could be a
basis for comparison -- which, of course, means that no
sentencing could ever occur.
Simpson’s argument does not fail merely because of this
reductio ad absurdum. It also fails because it is inconsistent
with Booker itself. There, the Supreme Court remanded for the
resentencing of defendants Booker and Fanfan, without any
suggestion that the district courts should wait until a track record
was established by other courts. 125 S. Ct. at 769. Thus, 18
U.S.C. § 3553(a)(6), which requires sentencing courts to
consider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct,” id. (emphasis added), must be read to
refer to disparities with past and present sentences -- not with
hypothetical future ones.
In sum, we find no cognizable error in the alternative
rationale that the district court provided for its sentencing
calculation, and hence no cognizable error in the 46-month
sentence that the court imposed on Simpson.
IV
This opinion has proceeded on the basis that, if there is no
error in a district court’s alternative sentencing rationale, there
is no error in the sentence the court imposed.13 Appellate panels
13
We have also determined that, if there were an error in the
alternative sentencing rationale employed in this case, that error would
23
in the Sixth and Eighth Circuits have suggested a similar
analysis.14 Other circuits have taken a different approach,
assuming that Booker error in a district court’s primary sentence
constitutes error in the judgment, and then asking whether the
court’s pronouncement of a lawful alternative sentence renders
that error harmless. Utilizing that approach, the circuits have
frequently found such error harmless beyond a reasonable
doubt.15
be non-constitutional because the district court regarded application
of the Guidelines as non-mandatory. See supra note 11.
14
See United States v. Chandler, 419 F.3d 484, 485 (6th Cir.
2005) (“In this case, . . . the district court not only determined the
Defendant’s sentence pursuant to the Guidelines, but also [in the
alternative] treated the Guidelines as advisory and sentenced the
Defendant pursuant to the sentencing factors outlined in 18 U.S.C. §
3553(a). Thus, the imposition of the Defendant’s sentence does not
implicate the Sixth Amendment” (footnote omitted)); United States v.
Porter, 417 F.3d 914, 917 (8th Cir. 2005) (“In some circumstances, an
alternative sentence can render a Booker error harmless. Or perhaps
more precisely, an alternative sentence can demonstrate that the
district court’s imposition of sentence involved no error at all, because
in one of the alternatives, the sentence was imposed consistent with
Booker.” (citations omitted)).
15
See, e.g., United States v. Gill, No. 04-4947, 2005 WL 2436641,
at *2 (4th Cir. Oct. 4, 2005) (“[B]ecause the district court imposed an
alternative discretionary sentence pursuant to § 3553(a) that was
identical to the guidelines sentence, the Sixth Amendment error was
harmless.”); United States v. Cardenas, No. 04-11062, 135 Fed. Appx.
688, 690 (5th Cir. 2005) (“In this case, based on the alternative
judgment, the Government has met its burden of demonstrating
beyond a reasonable doubt that the Sixth Amendment violation at
issue did not contribute to the sentence that Cardenas received.”);
United States v. Christopher, 415 F.3d 590, 592 (6th Cir. 2005) (“Any
error in Christopher’s sentencing was harmless, because the district
24
Were we to apply such an analysis here, we would reach the
same result. Simpson’s objection to the district court’s
mandatory application of the Guidelines in calculating his
sentence was sufficient to preserve that objection for harmless
error review.16 But the existence of the alternative sentence,
court adequately conveyed that it would impose the same sentence in
the absence of mandatory sentencing enhancements.”); United States
v. Solis-Vaquera, No. 04-3627, 2005 WL 2108318, at *1 (7th Cir.
Aug. 31, 2005) (“[T]he error was harmless in this case because the
district court selected an alternative sentence in accordance with our
advice in Booker.”); United States v. Thompson, 408 F.3d 994, 997
(8th Cir. 2005) (“Because the sentencing court made known that it
would impose the same 420-month sentence after taking [the §
3553(a)] considerations into account, any error was harmless beyond
a reasonable doubt.”); United States v. Becenti, No. 04-2187, 134 Fed.
Appx. 256, 257 (10th Cir. 2005) (“[T]he Sixth Amendment error here
was harmless because the district court imposed an alternative
sentence[,] . . . . and we are therefore not in the zone of speculation
and conjecture regarding whether the error affected the court’s
selection of the sentence imposed.” (internal quotation marks
omitted)); United States v. Robles, 408 F.3d 1324, 1328 (11th Cir.
2005) (holding a constitutional Booker error harmless on the ground
that, because the “district court stated its sentence would be the same
even if the guidelines were only advisory[,] . . . . we know with
certainty beyond a reasonable doubt what the district court would do
upon remand”); see also United States v. Hill, 411 F.3d 425, 426 (3d
Cir. 2005) (holding that, where “a District Court clearly indicates that
an alternative sentence would be identical to the sentence imposed
under the Guidelines, any error that may attach to a defendant’s
sentence under Booker is harmless”).
16
Although the parties dispute whether the first sentence’s failing
was constitutional or non-constitutional, see supra note 8, the
difference is not dispositive because we would find any error harmless
even on the stricter constitutional standard. See generally supra Part
II.B.
25
imposed in a manner consistent with the post-Booker sentencing
regime, removes any mystery as to what the district court would
have done had Booker been the law at the time of Simpson’s
sentencing. Consequently, any error in the first sentence is
harmless beyond a reasonable doubt.17
In opposition to this conclusion, Simpson draws our
attention to a passage in a Second Circuit opinion, United States
v. Crosby, 397 F.3d 103 (2d Cir. 2005), which questions whether
an alternative sentence can ever render Booker error harmless.18
The first sentence of the passage, and its accompanying
footnote, reads as follows:
[E]ven if a judge, prior to Booker/Fanfan, indicated an
alternative sentence that would have been imposed if
compliance with the Guidelines were not required, that
17
In United States v. Ayers, 428 F.3d 312 (D.C. Cir. 2005), we
followed this harmless error analytic approach because it was the
framework upon which the parties had agreed. 428 F.3d at 314.
There, however, we found the Booker error in the primary sentence
harmful -- despite the district court’s announcement of an alternative,
non-Guidelines sentence -- because the court had denied the defendant
an opportunity to present “additional mitigating evidence specifically
for the court’s use in determining his non-guidelines sentence.” Id. at
315. Such evidence “would have been relevant, of course, to the
court’s analysis under § 3553(a),” id., and the denial was thus contrary
to the sentencing methodology prescribed in Booker. Here, by
contrast, the district court invited Simpson to present any mitigating
evidence he wished, and the court’s methodology was consistent with
Booker’s prescription.
18
Although the passage was dicta in Crosby, the Second Circuit
has recently adopted it in holding that a particular alternative sentence
was not harmless error. See United States v. Fuller, 426 F.3d 556, 561
(2d Cir. 2005).
26
alternative sentence is not necessarily the same one
that the judge would have imposed in compliance with
the duty to consider all of the factors listed in section
3553(a).*/
*/ Although the duty to comply with section
3553(a) existed prior to Booker/Fanfan, it is
unlikely that a sentencing judge anticipating that
decision would have anticipated the full import of
the Remedy Opinion, and considered the section
3553(a) factors, including the guidelines, with
awareness of the excision of the subsection [that
made the Guidelines mandatory].
Id. at 118 & n.18. Unlike the judge hypothesized in Crosby,
Simpson’s sentencing judge was particularly prescient. He did
anticipate Booker’s remedial opinion and did consider the §
3553(a) factors with an awareness that he should do so on a non-
mandatory basis. We are therefore confident that the alternative
sentence in this case is in fact “the same one that the judge
would have imposed in compliance with the duty to consider all
of the factors listed in section 3553(a).” Id. at 118.
The second sentence of the cited passage from Crosby
continues:
In addition, such an alternative sentence is not
necessarily the same one that the judge would have
imposed after presentation by the Government of
aggravating circumstances or by the defendant of
mitigating circumstances that existed at the time but
were not available for consideration under the
mandatory Guidelines regime.
27
Id. Again, contrary to the Crosby hypothetical, any mitigating
circumstances that existed at the time were available for
consideration under the alternative sentencing regime employed
by Simpson’s sentencing judge. Accordingly, if there were any
error, it was harmless beyond a reasonable doubt.
V
Although the district court pronounced sentence on Joseph
Simpson prior to the Supreme Court’s substantial restructuring
of the federal sentencing regime in United States v. Booker, the
court accurately predicted the course the Supreme Court would
ultimately take. Because the district court’s alternative
sentencing methodology was materially consistent with that of
Booker, the court’s judgment is
Affirmed.
SILBERMAN, Senior Circuit Judge, concurring:
I concur fully in the court’s opinion, but write separately to
discuss the government’s waiver argument. Although it is
perfectly appropriate for the court to rest its decision on the
alternative grounds we have used, normally we would consider
first whether, as the government contends, Simpson waived the
right to appeal his sentence on the basis he asserts. See United
States v. West, 392 F.3d 450, 458 (D.C. Cir. 2004).
Upon reading the briefs, I concluded that Simpson
knowingly and intelligently waived the right to appeal his
sentence on the basis of Booker errors. Simpson’s plea
agreement included the following waiver provision:
Limited Waiver of Appeal: Your client is aware that federal
law . . . affords him the right to appeal his sentence. . . .
[T]he defendant waives the right to appeal his sentence or
the manner in which it was determined . . . , except to the
extent that (a) the Court sentences the defendant to a period
of imprisonment longer than the statutory maximum or (b)
the Court departs upward from the applicable Sentencing
Guideline range . . . . Realizing the uncertainty in
estimating what sentence the Judge will ultimately impose,
the defendant knowingly and willingly waives his right to
appeal the sentence, to the extent noted above, in exchange
for the concessions made by the [government] in this
agreement.
By his signature, Simpson acknowledged that he had “read [the]
plea agreement and carefully reviewed every part of it with [his]
attorney” and that he “fully underst[ood] this plea agreement
and voluntarily agree[d] to it.” At Simpson’s plea hearing, the
court asked Simpson if he had “had the opportunity to read over
the letter containing the plea agreement carefully” and if he had
“had the chance to discuss [the plea agreement] with [his]
counsel,” to which he answered in the affirmative. The court
2
also asked Simpson, “do you understand that under the plea
agreement in this case, you are giving up your right to appeal the
sentence that I impose to the extent that is noted in the plea
agreement,” and Simpson replied, “Yes, sir.”
Simpson asserts that the waiver was not knowing and
intelligent because “it was based on misinformation as to the
mandatory nature of the sentencing guidelines,” but the Supreme
Court has held that imperfect knowledge of future developments
in the law has no bearing on the question of the validity of a
waiver. For instance, in Brady v. United States, 397 U.S. 742
(1970), the Court observed that
[a] defendant is not entitled to withdraw his plea merely
because he discovers long after the plea has been accepted
that his calculus misapprehended the quality of the State’s
case or the likely penalties attached to alternative courses of
action. More particularly, absent misrepresentation or other
impermissible conduct by state agents, a voluntary plea of
guilty intelligently made in the light of the then applicable
law does not become vulnerable because later judicial
decisions indicate that the plea rested on a faulty premise.
A plea of guilty triggered by the expectations of a
competently counseled defendant that the State will have a
strong case against him is not subject to later attack because
the defendant's lawyer correctly advised him with respect to
the then existing law as to possible penalties but later
pronouncements of the courts, as in this case, hold that the
maximum penalty for the crime in question was less than
was reasonably assumed at the time the plea was entered.
Id. at 757 (citation omitted). More than 30 years later, the
Supreme Court reaffirmed Brady and explained that “the
Constitution, in respect to a defendant’s awareness of relevant
circumstances, does not require complete knowledge of the
3
relevant circumstances, but permits a court to accept a guilty
plea, with its accompanying waiver of various constitutional
rights, despite various forms of misapprehension under which a
defendant might labor.” United States v. Ruiz, 536 U.S. 622,
630 (2002). Applying these cases, nine circuit courts have
definitively upheld pre-Booker sentence-appeal waivers against
post-Booker claims of a right to a discretionary sentence.
See United States v. Morgan, 406 F.3d 135, 137 (2d Cir. 2005);
United States v. Lockett, 406 F.3d 207, 214 (3d Cir. 2005);
United States v. Johnson, 410 F.3d 137, 152-53 (4th Cir. 2005);
United States v. Bradley, 400 F.3d 459, 463-64 (6th Cir. 2005);
United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005);
United States v. Killgo, 397 F.3d 628, 629 n.2 (8th Cir. 2005);
United States v. Cortez-Arias, 425 F.3d 547, 548 (9th Cir. 2005);
United States v. Green, 405 F.3d 1180, 1190 (10th Cir. 2005);
United States v. Frye, 402 F.3d 1123, 1129 (11th Cir. 2005).1
This would have seemed to settle the waiver issue against
Simpson, had he not brought to the court’s attention Halbert v.
Michigan, 125 S. Ct. 2582 (2005), in a Rule 28(j) letter the day
before oral argument. Simpson relies on Halbert for the
proposition that a defendant pleading guilty cannot waive a right
that has not yet been recognized – in Simpson’s case, “the right
to obtain a discretionary sentence via appeal.”
1
See also United States v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005)
(rejecting a defendant’s argument that Booker rendered his plea
involuntary and observing that “the possibility of a favorable change
in the law occurring after a plea is one of the normal risks that
accompany a guilty plea”); United States v. Bond, 414 F.3d 542, 545
(5th Cir. 2005) (delineating the bounds of a sentence-appeal waiver
where a defendant conceded that the waiver’s broad language covered
Booker errors).
4
In Halbert, the Court addressed the constitutionality of a
Michigan constitutional amendment limiting the appellate rights
of defendants who plead guilty or nolo contendere. Under the
amendment, such defendants have no appeal of right to the
Michigan Court of Appeals, the state’s intermediate appellate
court. See Mich. Const. art. I, § 20. Instead, defendants must
petition the court for leave to appeal and, in most cases, indigent
defendants are not entitled to appointed counsel to aid them
during this process. See Halbert, 125 S. Ct. at 2588. The Court
invalidated the Michigan scheme and held that it created a
situation more like an appeal of right, for which Douglas v.
California, 372 U.S. 353 (1963), requires the appointment of
counsel, than a discretionary appeal, for which Ross v. Moffitt,
417 U.S. 600 (1974), provides that such appointment is not
constitutionally required. The Court reasoned that “Michigan’s
intermediate appellate court looks to the merits of the claims
made in the application” and that “indigent defendants pursuing
first-tier review in the Court of Appeals are generally ill
equipped to represent themselves.” Halbert, 125 S. Ct. at 2590.
Relevant to our case, the majority responded to Michigan’s
contention that “even if Halbert had a constitutionally
guaranteed right to appointed counsel for first-level appellate
review, he waived that right.” Id. at 2594. The Court’s response
included two independent grounds. First, the Court stated,
surprisingly, that “Halbert, in common with other defendants
convicted on their pleas, had no recognized right to appointed
appellate counsel he could elect to forgo.” Id. (emphasis added).
The court also rejected Michigan’s waiver argument because
“the trial court did not tell Halbert, simply and directly, that in
his case, there would be no access to appointed counsel.” Id.
It is of course the first ground on which Simpson relies. He
claims that the “[un]recognized right to appointed appellate
counsel” at issue in Halbert is indistinguishable from the
5
“[un]recognized” jury trial right at issue in Booker, and suggests
that Halbert’s sweeping anti-waiver language casts doubt not
only on the circuit courts’ Booker-waiver cases, but also on both
Brady and Ruiz. Justice Thomas actually recognized this newly
created tension in his dissent. After musing that “[w]hat this
cryptic statement” – “no[t] recognized” – “means is unclear,”
Halbert, 125 S. Ct. at 2604 (Thomas, J., dissenting), Justice
Thomas observed, presciently, that
the majority’s failure to make clear which sources of law
are to be considered in deciding whether a right is “no[t]
recognized,” and hence nonwaivable, is bound to wreak
havoc. For instance, suppose that a defendant waived the
right to appeal his sentence after the regional Court of
Appeals had held that the principle of Blakely v.
Washington did not apply to the United States Sentencing
Guidelines, but before this Court held the contrary in
United States v. Booker. The defendant could claim that, in
his circuit, the Sixth Amendment right against the
application of the Guidelines was “no[t] recognized,” and
hence that the right was nonwaivable.
Id. at 2604 n.2 (citations omitted).
The Supreme Court majority’s blithe drive-by implicit
questioning of the considered views of eight circuit courts,2 not
to speak of the doubt it casts upon its own precedent, is to say
the least rather discouraging to circuit judges. I suspect the
Supreme Court’s approach stems from its disposition to decide
the issues that generate certiorari interest “come hell or high
water.” The shame of it is that the manner in which the Court
decides cases is more important than what it decides. It is the
2
Only the Ninth Circuit’s Booker-waiver decision, Cortez-Arias,
was issued post-Halbert.
6
former that has the greatest influence on the American judiciary.
See United States v. Moore, 110 F.3d 99, 102 (D.C. Cir. 1997)
(Silberman, J., dissenting from denial of rehearing en banc). In
acting as it did in Halbert, the Court once again demonstrated
that it sees itself primarily as a tribunal for issue determination
rather than resolution of cases and controversies – which is why
I have referred to it as a “noncourt court.” See Lederman v.
United States, 291 F.3d 36, 48 (D.C. Cir. 2002) (Silberman, J.,
concurring).
In any event, Halbert certainly leads us to pretermit the
waiver issue and instead rely on the alternative grounds set forth
in the court’s opinion.