United States Court of Appeals
For the First Circuit
No. 03-1918
UNITED STATES OF AMERICA,
Appellee,
v.
JOEL PADILLA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
Torruella, Selya, Lynch, Lipez and Howard, Circuit Judges.
Christie M. Charles, with whom George F. Gormley and George F.
Gormley, P.C. were on brief, for appellant.
John A. Drennan, Attorney, Appellate Section, Criminal
Division, United States Department of Justice, with whom Michael J.
Sullivan, United States Attorney, and Virginia M. Vander Jagt,
Assistant United States Attorney, were on brief, for appellee.
______________________
OPINION EN BANC
______________________
July 25, 2005
SELYA, Circuit Judge. After a jury convicted defendant-
appellant Joel Padilla on a charge of being a felon in possession
of a firearm, 18 U.S.C. § 922(g)(1), the district court imposed, as
part of his sentence, a term of supervised release. As a condition
of that term, the court ordered that Padilla submit to no fewer
than three drug tests, see 18 U.S.C. § 3583(d), and delegated to
the probation officer the authority to determine the maximum number
of tests to be administered. Padilla lodged no contemporaneous
objection.
On appeal, a panel of this court affirmed Padilla's
conviction but vacated the disputed supervised release condition.
United States v. Padilla, 393 F.3d 256, 259 (1st Cir. 2004)
(Padilla I) (per curiam). The panel concluded that the supervised
release condition, as framed, granted the probation officer
unbridled discretion to determine the maximum number of drug tests
and that, therefore, it constituted an improper delegation of
judicial authority. Id. at 258 (relying on United States v.
Meléndez-Santana, 353 F.3d 93, 103, 106 (1st Cir. 2003)). Despite
the fact that this claim of error was raised for the first time on
appeal, the panel vacated the disputed supervised release condition
and remanded for resentencing without engaging in conventional
plain error review. Id. at 258-59. That decision was dictated by
Meléndez-Santana's treatment of a virtually identical error. See
id. at 258 (citing Meléndez-Santana, 353 F.3d at 106); see also
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United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991) ("We
have held, time and again, that in a multi-panel circuit, prior
panel decisions are binding upon newly constituted panels in the
absence of supervening authority sufficient to warrant disregard of
established precedent.").
Two members of the panel advocated that the en banc court
reexamine that portion of the Meléndez-Santana opinion that
required vacation of the disputed supervised release condition
without resort to conventional plain error analysis. See Padilla
I, 393 F.3d at 259, 261 (Campbell and Selya, JJ., concurring).
Subsequently, a majority of the judges of this court in active
service voted, sua sponte, to withdraw the panel opinion in
relevant part and rehear en banc "the questions of whether, to what
extent, and in what manner plain-error review applies to improper
delegations of sentencing authority of the type" that had occurred
in Padilla I. United States v. Padilla, 403 F.3d 780, 780 (1st
Cir. 2005) (Padilla II) (order granting rehearing en banc).
We have received supplemental briefs and heard oral
argument. We now overrule that portion of the panel opinion in
Meléndez-Santana that requires automatic reversal for delegation
errors, hold that conventional plain error principles must be
applied in such cases, proceed to analyze the delegation error here
under those principles, and conclude that despite the delegation
error, Padilla's sentence may stand.
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I.
Background
In Meléndez-Santana, a panel of this court examined the
scope of the authority that a district court may entrust to a
probation officer with respect to the imposition of drug-testing
conditions during terms of supervised release. By statute:
The court shall . . . order, as an explicit
condition of supervised release, that the
defendant refrain from any unlawful use of a
controlled substance and submit to a drug test
within 15 days of release on supervised
release and at least 2 periodic drug tests
thereafter (as determined by the court) for
use of a controlled substance.
18 U.S.C. § 3583(d).
In Meléndez-Santana, the district court had delegated to
the probation officer the authority to order, at his discretion,
drug tests beyond the minimum number (three) set by the foregoing
statute. 353 F.3d at 102. On appeal, the panel held that the
statutory clause "as determined by the court" signifies "that the
court, not the probation officer, must decide how many tests a
defendant should be forced to undergo." Id. at 103. The panel
added, however, that:
This responsibility does not mean that the
court has to specify the exact number of tests
to be performed. Consistent with the
statutory language, it may specify a range,
allowing probation officers to exercise
discretion on the number of drug tests to be
performed within that range.
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Id. Thus, it determined that the district court had erred in
imposing the particular drug-testing condition because, by
"vest[ing] the probation officer with the discretion to order an
unlimited number of drug tests," id., it had improperly delegated
its judicial authority, id. at 106.
The defendant in Meléndez-Santana had failed to raise any
objection to the drug-testing condition before the lower court.
Id. at 102. Although the panel acknowledged that the claimed error
had been forfeited, it did not engage in conventional plain error
analysis but, rather, seemed to treat the delegation error as
requiring automatic reversal. See id. at 106.
The delegation error noted in Meléndez-Santana proved to
be a recurrent one. Padilla's case illustrates the point. The
district court sentenced him to a 110-month incarcerative term,
followed by a three-year supervised release period. At the
disposition hearing, the court delineated the following condition
of supervised release:
He must submit to such drug treatment and
testing as the probation office deems
appropriate. This can go beyond the minimal
one drug test within 15 days of release and
two periodic drugs tests thereafter, but is
designed to permit the probation officer to
make judgments about drug testing in Mr.
Padilla's case and drug treatment if they
believe that it is appropriate.
The court incorporated these instructions into the written
judgment, which stated:
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The defendant shall participate in a substance
abuse treatment program, including testing, as
directed by the U.S. Probation Officer, and
the defendant shall submit to drug testing as
directed by the U.S. Probation Officer.
United States v. Padilla, No. 1:02-CR-10266 (D. Mass. June 10,
2003) (unpublished).
Padilla did not raise any objection to the drug-testing
condition in the district court. On appeal, however, that error
moved front and center. The panel determined that the sentencing
court, by failing to cap the number of drug tests that the
probation officer could mandate, had violated section 3583(d). See
Padilla I, 393 F.3d at 258. The government, conceding error, urged
the panel to leave the sentence intact on the ground that the error
neither affected Padilla's substantial rights nor impugned the
integrity of the proceedings. The panel concluded that it was
bound by the course adopted in Meléndez-Santana and therefore
rejected the government's argument. Id.
Two members of the panel wrote separately, however, to
"express [their] discomfiture with the approach that the Meléndez-
Santana panel took in determining what consequences attended the
delegation error." Id. at 259 (Campbell and Selya, JJ.,
concurring). These judges noted that the practice of automatically
vacating a release condition because of a delegation error
"effectively treat[s] [such a] mistake as one of 'the limited class
of structural errors' that warrant correction regardless of other
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considerations." Id. (quoting United States v. Cotton, 535 U.S.
625, 632 (2002)). Decrying this approach, the concurring judges
encouraged en banc review so that the full court could consider the
appropriate treatment of unpreserved delegation errors. Id. at
261. In due course, the full court ordered rehearing en banc.
Padilla II, 403 F.3d at 780.
II.
Analysis
Padilla presents two arguments in support of his
importuning that the drug-testing condition must be vacated.
First, he posits that the improper delegation of sentencing
authority is a structural error and, thus, requires automatic
reversal. Second, he maintains that, in all events, the delegation
error satisfies the conventional quadripartite test for plain error
review and, on that basis, entitles him to the requested relief.
The government, for its part, strives to persuade us that no error
occurred. It also argues that unpreserved delegation errors are
not structural and do not require automatic reversal. Finally, it
asserts that any delegation error that may have transpired does not
warrant correction.
We begin by explaining why we rebuff the government's
effort to inject a new issue into the case. We then elucidate the
standard of review, examine the nature of the unpreserved
delegation error, and mull its consequences.
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A.
Scope of Review
The government belatedly urges that Meléndez-Santana's
principal holding was incorrect because a delegation of the type
involved here does not contravene 18 U.S.C. § 3583(d). We
summarily reject that exhortation as beyond the proper scope of our
review. We briefly explain our rationale.
An appellate court enjoys broad discretionary power to
grant rehearing en banc. See W. Pac. R. Corp. v. W. Pac. R. Co.,
345 U.S. 247, 250 (1953); see also 28 U.S.C. § 46(c). The scope of
en banc review ordinarily is delimited by the order convening the
en banc court. See, e.g., United States v. Councilman, 385 F.3d
793, 793 (1st Cir. 2004) (per curiam) (order granting rehearing en
banc) (requesting that the litigants address specifically defined
issues); United States v. Brown, 263 F.3d 1, 1 (1st Cir. 2001) (per
curiam) (order granting rehearing en banc) (enumerating questions
of specific concern to the court). Here, the order, by describing
the district court's action as an "improper delegation[] of
sentencing authority," Padilla II, 403 F.3d at 780, clearly
indicated that the question of whether a court errs when it imposes
a supervised release condition of the type described in Meléndez-
Santana was beyond the scope of the en banc proceeding and that the
full court would focus on the narrower question of how an
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unpreserved Meléndez-Santana error should be treated on appeal.
See id.
Such a circumscription of the issues to be considered is
well within the discretion of the en banc court. See 16A Charles
Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice
and Procedure § 3981.1 (3d ed. 1999 & Supp. 2005) (noting that "the
grant of en banc hearing may be limited in advance to an identified
issue"); see also Asherman v. Meachum, 957 F.2d 978, 984 (2d Cir.
1992) (en banc). The government could have asked us to frame the
issues on rehearing more broadly. It did not do so.
To be sure, the en banc court has discretion to review
all the issues presented by an appeal, even though the order
convening the en banc court indicates a more isthmian focus. Here,
however, the equities militate strongly against taking such an
extraordinary step. After all, the government confessed error in
the district court. See Padilla I, 393 F.3d at 258. Moreover, it
did not seek either panel rehearing or rehearing en banc in
Meléndez-Santana. And, finally, it has conceded Meléndez-Santana
error in a myriad of cases since we handed down the Meléndez-
Santana decision. See, e.g., United States v. Villafane-Jiminez,
___ F.3d ___, ___ (1st Cir. 2005) [Nos. 03-1230, 03-1231, 03-1340,
slip op. at 9]; United States v. Figuereo, 404 F.3d 537, 542 (1st
Cir. 2005). That series of actions makes it unseemly for us to
reexamine Meléndez-Santana's finding of error on an eleventh-hour
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request. Cf. Anderson v. Beatrice Foods Co., 900 F.2d 388, 397
(1st Cir. 1990) (opinion on denial of rehearing) (explaining that
a party generally is not permitted to raise a new issue for first
time on a petition for rehearing); United States v. Hall, 63 F.
472, 475 (1st Cir. 1894) (per curiam) (similar). Because the order
convening the en banc court does not encompass the issue that the
government now seeks to explore, we deem it inappropriate to
consider that issue. Consequently, we will not reexamine the
Meléndez-Santana court's conclusion that section 3583(d) prohibits
a delegation of the type at issue here.
B.
Standard of Review
After imposing sentence (including the now-disputed
supervised release condition), the district court inquired of both
sides whether there was "[a]nything further that we need to take
up" before concluding the proceeding. Although afforded ample
opportunity to do so, Padilla voiced no objection to the drug-
testing condition. That default constrains our inquiry.
A court of appeals typically reviews a sentencing court's
imposition of a condition of supervised release for abuse of
discretion. See United States v. Brown, 235 F.3d 2, 3 (1st Cir.
2000). That standard shifts, however, when "the sentencing court
affords the defendant an opportunity to object to the condition but
the defendant holds his tongue." Id. In such circumstances,
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appellate review is for plain error. See id.; see also United
States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) (explaining
that plain error review applies when a party has forfeited a right
by failing to assert it in a timely manner).
From the defaulting party's perspective, "[t]he plain
error hurdle is high." United States v. Hunnewell, 891 F.2d 955,
956 (1st Cir. 1989). Under that regime, a reviewing court may set
aside a challenged portion of a criminal sentence if, and only if,
the appellant succeeds in showing "(1) that an error occurred (2)
which was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired the
fairness, integrity, or public reputation of judicial proceedings."
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
Plain error review is not entirely a judge-made
construct. In the first instance, it derives from Fed. R. Crim. P.
52(b), which provides in pertinent part that "[a] plain error that
affects substantial rights may be considered although it was not
brought to the court's attention." Properly viewed, then, the
plain error test constitutes a mandatory limitation on a federal
appellate court's remedial authority. See United States v. Olano,
507 U.S. 725, 731 (1993) (stating that Rule 52(b) "provides a court
of appeals a limited power to correct errors that were forfeited
because not timely raised in district court").
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Our authority to notice forfeited errors is hedged by the
doctrinal elements recognized in Olano. See id. at 732. The
appellant must carry the devoir of persuasion as to each of those
four elements. See United States v. Vega Molina, 407 F.3d 511, 521
(1st Cir. 2005). Even if he makes the requisite showing on the
first three elements, a reviewing court retains plenary discretion
not to correct the error if it concludes that the error does not
seriously affect the fairness, integrity, or public reputation of
the judicial proceedings as a whole. Olano, 507 U.S. at 732.
C.
Structural Error
The Supreme Court has recognized the existence of a tiny
class of structural errors — errors that may not be found harmless
under Fed. R. Crim. P. 52(a) because they deprive a criminal
defendant of those basic protections that enable a trial to serve
as a vehicle for reliably determining guilt or innocence. See
Arizona v. Fulminante, 499 U.S. 279, 310 (1991); see also United
States v. Perez-Ruiz, 353 F.3d 1, 17 (1st Cir. 2003). Padilla's
first argument seeks to grasp this slender lifeline. He asserts
that the delegation error here is structural in nature and, thus,
is per se reversible. This assertion is doubly flawed.
In the first place, this is not a structural error case
at all. A structural error is a "defect affecting the framework
within which the trial proceeds, rather than simply an error in the
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trial process itself." Fulminante, 499 U.S. at 310. Unlike a
garden-variety trial error, a structural error "transcends the
criminal process," id. at 311, by depriving a defendant of those
"basic protections [without which] a criminal trial cannot reliably
serve its function as a vehicle for determination of guilt or
innocence, and no criminal punishment may be regarded as
fundamentally fair." Rose v. Clark, 478 U.S. 570, 577-78 (1986)
(citation omitted).
The category of structural error has been reserved for a
"very limited class of cases." Johnson v. United States, 520 U.S.
461, 468 (1997). That class includes only the most pervasive and
debilitating errors. Paradigmatic examples are a total withholding
of the right to counsel at trial, Gideon v. Wainwright, 372 U.S.
335, 342-43 (1963), a denial of the right of self-representation at
trial, McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984), or the
specter of a biased judge presiding over a case, Tumey v. Ohio, 273
U.S. 510, 535 (1927). A more recent example is the denial of the
right to a jury verdict of guilt beyond a reasonable doubt. See
Sullivan v. Louisiana, 508 U.S. 275, 280-82 (1993). The common
denominator is that such errors infect "[t]he entire conduct of the
trial from beginning to end." Fulminante, 499 U.S. at 309.
In contrast, a delegation error of the type at issue here
affects only a single aspect of a single phase of a criminal
proceeding — and a tangential aspect at that. This is hardly the
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stuff of structural error. Compare Sullivan, 508 U.S. at 281
(failing to provide a correct reasonable doubt instruction
"vitiates all the jury's findings" and therefore constitutes
structural error), with Neder v. United States, 527 U.S. 1, 10-11
(1999) (failing to instruct the jury on a single element of an
offense is a non-structural error in part because its impact is
isolated and does not infect the jury's other conclusions). The
delegation error here neither contaminated the proceeding as a
whole nor called into serious question its fundamental fairness.
Given its limited reach, the error is non-structural. Cf., e.g.,
Perez-Ruiz, 353 F.3d at 17 (finding that a sentencing error, in
contravention of the rule in Apprendi v. New Jersey, 530 U.S. 466
(2000), was not a structural error).
In the second place, even if we were to adopt Padilla's
taxonomy and classify the delegation error as structural, that
classification would not aid his cause. In Johnson, the Court
refuted the very premise on which Padilla's "automatic reversal"
assertion rests. There, the appellant argued that her forfeited
challenge fell outside the strictures of Olano because it was
"structural." Johnson, 520 U.S. at 466. Finding that "the
seriousness of the error claimed does not remove consideration of
it from the ambit of the Federal Rules of Criminal Procedure," the
Court held that forfeited errors, even if structural, are subject
to the imperatives of Rule 52(b). Id. We reached the same
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conclusion in United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40,
47 n.5 (1st Cir. 2004).
That ends this aspect of the matter. Creative labeling
does not assist Padilla here. On any view of the record, his claim
of error is properly considered within the confines of plain error
review.1
D.
Plain Error
Padilla's remaining argument is that this error satisfies
the conventional plain error test. Although that test is rigorous,
its first two steps present no problem for Padilla: since
Meléndez-Santana is the law of this circuit, we must regard
delegation of the power to set the maximum number of drug tests as
clear and obvious error. See Meléndez-Santana, 353 F.3d at 103-06.
The error is not that the district court left the probation officer
room to determine the number of drug tests; rather, it is that the
1
The Supreme Court has not yet reached the more sophisticated
question of whether a structural error necessarily affects
substantial rights, thereby automatically satisfying the third
element of the plain error test. See Johnson, 520 U.S. at 469
(declining to address this question); Olano, 507 U.S. at 735
(flagging the issue but declining to consider it). Three courts of
appeals have concluded that structural errors, by their nature,
satisfy the prejudice prong of the plain error test. See United
States v. Recio, 371 F.3d 1093, 1101 (9th Cir. 2004); United States
v. Vazquez, 271 F.3d 93, 100 (3d Cir. 2001); United States v.
David, 83 F.3d 638, 646-47 (4th Cir. 1996). Similarly, this court
has stated that "'structural error' . . . is per se prejudicial."
United States v. Mojica-Baez, 229 F.3d 292, 309 (1st Cir. 2000)
(dictum). Because the claimed error here is not structural in
nature, we need not address that question.
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court failed to limit the delegated discretion by capping that
number. See id. at 103.
The third step of the plain error pavane requires the
appellant to demonstrate that the error affects substantial rights.
Duarte, 246 F.3d at 60. The Olano Court explained that "in most
cases [this phrase] means that the error must have been
prejudicial: It must have affected the outcome of the district
court proceedings." 507 U.S. at 734. Normally, the appellant must
make a particularized showing of prejudicial effect in order to
satisfy this element. See United States v. Dominguez Benitez, 124
S. Ct. 2333, 2339 (2004); Olano, 507 U.S. at 735.
In Dominguez Benitez, the Court discussed the "affecting
substantial rights" element of the plain error test and noted that
the prejudicial effect on the outcome of the proceeding must be
"substantial and injurious." 124 S. Ct. at 2339 (quoting Kotteakos
v. United States, 328 U.S. 750, 776 (1946)). In other words, the
proponent — the party asserting plain error — must show "a
reasonable probability that, but for [the error claimed], the
result of the proceeding would have been different." Id.
(alteration in original) (internal quotation marks omitted).
In United States v. Antonakopoulos, 399 F.3d 68 (1st Cir.
2005), this court found the Dominguez Benitez standard applicable
to forfeited sentencing errors. Id. at 78-79. In such cases, the
appellant, in order to satisfy the prejudice prong, must limn
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circumstances indicating a reasonable probability that the trial
court, but for the error, would have imposed a different, more
favorable sentence. Id. at 75. That standard governs here.
The case at hand is peculiar in that we are dealing with
two unknown variables: the limit the district court would have set
on drug tests and the number of tests that the probation officer
will demand. It is, therefore, nearly impossible for Padilla to
show a reasonable probability that he is worse off because the
probation officer, rather than the district court, has the power to
determine the maximum number of drug tests. Under these
circumstances, we do not see how Padilla can demonstrate that, but
for the delegation error, the supervised release condition likely
would have been more favorable to him. This, in turn, undercuts
his argument that the error should be corrected. See Jones v.
United States, 527 U.S. 373, 394-95 (1999) ("Where the effect of an
alleged error is so uncertain, a defendant cannot meet his burden
of showing that the error actually affected his substantial
rights.").
We hasten to add that our decision need not rest on this
point alone. Even were we to assume, for argument's sake, that
Padilla somehow could clear the third-prong hurdle — a dubious
proposition at best — the fourth element of the plain error
formulation poses an insuperable obstacle. In our view, this
delegation error did not in any way impugn the fairness, integrity,
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or public reputation of the criminal proceeding as a whole. Thus,
we would decline in any event to exercise our discretion to correct
it. See Duarte, 246 F.3d at 60.
Our rationale is straightforward: the error in question
is simply not of such magnitude or consequence that it would
undermine faith in the judicial system were it to stand
uncorrected. This determination recognizes that an appellate
court's remedial authority under Rule 52(b) is circumscribed. See
Johnson, 520 U.S. at 466. A party's best safeguard against
judicial error is a contemporaneous objection. Where, as here, no
such objection was interposed, plain error principles cannot be
used as a surrogate for the foregone objection.
Seen in that light, it is readily apparent that plain
error review is not a panacea for every perceived misstep in the
trial process. The authority to notice plain errors, properly
exercised, does not allow a reviewing court to correct "the
ordinary backfires — whether or not harmful to a litigant's cause
— which may mar a trial record." United States v. Griffin, 818
F.2d 97, 100 (1st Cir. 1987). It follows that this power should be
employed sparingly to correct grave or consequential errors — those
that "seriously affect the fundamental fairness and basic integrity
of the proceedings conducted below." Id.
The error here, considered within the encincture of the
case as a whole, is not one of those grave or consequential errors.
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The placement of authority to set the maximum number of drug tests
in the hands of the judge is a statutory choice; it is neither a
matter of constitutional necessity nor a condition essential to the
fair administration of justice.2 Thus, Article III is implicated
only by way of the statutorily prohibited delegation, and to the
extent that the statute gives rise to any personal right to an
Article III adjudicator, no procedural principle is better settled
than that a right may be forfeited by neglecting to assert it in a
timeous manner before the nisi prius court. See Olano, 507 U.S. at
731; Yakus v. United States, 321 U.S. 414, 444 (1944).
To cinch matters, we do not perceive anything
fundamentally unfair about the delegation of authority to the
probation officer such as occurred in this case. That error
concerns a matter that is incidental to the defendant's sentence as
opposed to one of its core components. Cf. United States v. York,
357 F.3d 14, 21 (1st Cir. 2004) (distinguishing between
"significant penological decision[s]," such as the determination of
whether a defendant will be subject to polygraph testing on
release, and the details related to effectuating such decisions,
such as the frequency of the testing). In the grand scheme of
errors — from those that are tolerated as inevitable imperfections
2
Indeed, as the panel noted in Meléndez-Santana, "prior to the
enactment of Section 3583(d) as part of the Violent Crime Control
and Law Enforcement Act of 1994, probation officers . . . had the
authority to establish the maximum number of drug tests to be
performed." 353 F.3d at 106 n.13.
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in a judicial system administered by human beings to those that are
offensive to the very principles on which that system is based —
the error here seems to be solidly nestled within the former
category.
In an endeavor to convince us that this delegation error
warrants correction, Padilla cites three cases involving forfeited
delegation errors in the context of restitution. Those cases fail
to alter our conclusion that the instant error does not justify an
exercise of our remedial authority.
In two of the three decisions, the court of appeals
merely vacated the lower court's restitution order without any
explication regarding the applicability of the third and fourth
elements of the plain error test. See United States v. Overholt,
307 F.3d 1231, 1256 (10th Cir. 2002); United States v. Albro, 32
F.3d 173, 174 n.1 (5th Cir. 1994) (per curiam).3 The third
decision, United States v. Pandiello, 184 F.3d 682 (7th Cir. 1999),
is no more convincing. There, the court concluded that the third
and fourth elements of the plain error test were satisfied because
a delegation error involving the failure to specify the amount of
each restitution payment had occurred. Id. at 688. The court's
sole explanation for this conclusion was its characterization of
the error as "a serious structural defect." Id. (quoting United
3
The Albro court made a point of indicating that its finding
of plain error was case-specific. 32 F.3d at 174 n.1.
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States v. Mohammad, 53 F.3d 1426, 1439 (7th Cir. 1995)). We have
rejected that characterization with respect to the delegation error
at issue here. See supra Part II(C).
The bottom line is simply this: the cases relied upon by
Padilla are out of step with our plain error jurisprudence. For
that reason, we decline to follow them.
If more were needed — and we doubt that it is — another
reason counseling against the exercise of our corrective discretion
is the limited effect of the error. Should the probation officer
require an inordinate number of drug tests or otherwise misuse his
wrongly delegated authority, the defendant, notwithstanding his
original forfeiture, has at least a partial remedy. A specific
statute, 18 U.S.C. § 3583(e)(2), permits the district court, on
motion, to "modify, reduce, or enlarge the conditions of supervised
release, at any time prior to the expiration or termination of the
term of supervised release." In turn, the Criminal Rules require
the court, prior to effecting such a modification, to "hold a
hearing, at which the person has the right to counsel."4 Fed. R.
Crim. P. 32.1(c)(1). The advisory committee's 1979 note to Fed. R.
Crim. P. 32.1(b) (the section that, prior to the 2002 amendments,
4
Two exceptions apply to this requirement. A hearing is not
necessary (i) if the defendant waives the right to one or (ii) if
the relief sought is favorable to the defendant, does not extend
the term of release or probation, and the government has not
objected to the modification after receiving notice and an
opportunity to respond. See Fed. R. Crim. P. 32.1(c)(2).
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contained the language that now appears in Rule 32.1(c)) states
that "[t]he probationer should have the right to apply to the
sentencing court for a clarification or change of conditions"; that
"the probationer should be able to obtain resolution of a dispute
over an ambiguous term or the meaning of a condition without first
having to violate it"; and that in cases of "unreasonableness on
the part of the probation officer, the probationer should have
recourse to the sentencing court when a condition needs
clarification or modification." Fed. R. Crim. P. 32.1 advisory
committee's note; see also 3 Charles Alan Wright, Nancy J. King,
Susan R. Klein & Sarah N. Welling, Federal Practice and Procedure
§ 543 (3d ed. 2004 & Supp. 2005). We believe that this remedial
regime provides adequate means for redress should the probation
officer attempt to ride roughshod.
In the last analysis, Padilla's argument that this court
should correct the error boils down to the fact that the error
occurred.5 He fails to make the case that this error, in
5
Padilla has not argued that the error in question ought to
provoke an exercise of this court's supervisory power. We mention
this possibility only because of the Supreme Court's decision in
Nguyen v. United States, 539 U.S. 69 (2003). There, in a 5-4
decision, the Court held that a Ninth Circuit panel that included
a non-Article III judge was improperly constituted under 28 U.S.C.
§ 292(a) and corrected the forfeited error through an exercise of
its supervisory powers. See id. at 74-81. This case is
distinguishable in that the mis-delegation of authority does not
involve a drastic departure from "the accepted and usual course of
judicial proceedings," id. at 74 (internal quotation marks
omitted), nor does the error deal with "a statutory provision that
embodies a strong policy concerning the proper administration of
-22-
comparison to other errors for which relief has been denied on
plain error review, is somehow exceptional. To accept his
suggestion that we must correct the error simply because section
3583(d) prohibits what the district court did would eviscerate the
plain error test.
III.
Conclusion
This en banc proceeding is less about the particulars of
Padilla's case and more about the need to preserve the integrity of
plain error review. The plain error doctrine is premised on the
assumption that parties must take responsibility for protecting
their legal rights and, accordingly, that only the clearest and
most serious of forfeited errors should be corrected on appellate
review. See Dominguez Benitez, 124 S. Ct. at 2340; Olano, 507 U.S.
at 731; Griffin, 818 F.2d at 100. Courts must be scrupulous in
hewing to that line.
So it is here: while a district court commits error when
it orders drug testing under section 3583(d) but fails to establish
the maximum number of tests that the probation officer can
administer, we discern no reason why that sort of bevue warrants
correction under the jurisprudence of plain error. See Dominguez
Benitez, 124 S. Ct. at 2340 (explaining that the plain error
standard, properly administered, "should enforce the policies that
judicial business," id. at 81 (internal quotation marks omitted).
-23-
underpin Rule 52(b) generally, to encourage timely objections and
reduce wasteful reversals by demanding strenuous exertion to get
relief for unpreserved error").
We need go no further. Because the defendant has not
demonstrated that a delegation error of the type committed here
satisfies either the third or the fourth elements of the applicable
test, we deny the relief requested and affirm his sentence,
including the disputed supervised release condition.
Affirmed.
— Separate Opinions Follow —
-24-
BOUDIN, Chief Judge, concurring. To a novice, the notion
that "error" has occurred in the course of a trial or sentencing
may be alarming, but anyone familiar with the work of courts
understands that errors are a constant in the trial process, that
most do not much matter, and that a reflexive inclination by
appellate courts to reverse because of unpreserved error would be
fatal.
A federal trial can involve myriad issues of substantive
law, split-second rulings on points of evidence and procedure, and
(in criminal cases) a sentencing regime so complex that it is now
the subject of treatises. Many legal questions have no
indisputably right answer: often there is no exact precedent;
statutory language or prior decisions are ambiguous; competing
policy objectives strive for supremacy; and individual district
judges within the same district court can and regularly do give
different answers to the same question.
Circuit judges have more time to reflect and the
advantage of more thorough briefing. Yet there are tables that set
forth conflicts on numerous questions as between circuits. See,
e.g., Circuit Split Roundup, 75 Crim. L. Rep. 441, 463-64 (2004)
(listing circuit splits "discussed in federal appellate decisions
issued in April 2004"). Like trial courts, circuit courts
themselves labor under severe constraints due to the volume of
cases and the complexity of the laws being administered. Law is
-25-
complex because the world that it regulates is complex, but
complexity makes perfection unattainable.
None of this signals any crisis. Many so-called errors
have no plausible effect on the outcome of the case, and many more
have only the lowest likelihood of affecting the outcome. Evidence
is frequently cumulative; jury instructions may pose questions on
which the jury's decision is controlled by weighty evidence; and
details in sentencing conditions may be of minimal practical
importance. For this and other reasons of policy, counsel is
expected to object when a judge rules adversely to the client; and
objections not presented in a timely manner are ordinarily
forfeited. Yakus v. United States, 321 U.S. 414, 444 (1944).
Even if an error has been forfeited, the plain error
doctrine still allows reversal on appeal--but only if specific
conditions are met. Although the current standard is supplied by
the Supreme Court's decision in United States v. Olano, 507 U.S.
725, 732 (1993), the underlying factors would be the same under any
common-sense formulation: e.g., the clarity of the error, the
likelihood that it affected the result, and concerns about justice
(which is not the same thing as a difference in result).
It is in this context of inevitable (but often
unimportant) error that one must consider the sentencing mistake in
this case, namely, a decision to let the probation officer set the
required number of drug tests instead of having the maximum number
-26-
specified by the judge. Most people would probably think it
entirely sensible that a probation officer, an individual familiar
with the defendant while on supervised release, be the one to make
such judgments in the first instance--subject always, as is the
case, to the ability of the district judge to alter the number or
to remedy any other unfairness of administration of a condition.
It happens that a governing decision now says that the
judge should fix the maximum number, United States v. Melendez-
Santana, 353 F.3d 93, 103 (1st Cir. 2003), but that was a change in
practice--not a requirement of a law of nature. Correcting by a
remand a later instance of the same mistake, when defense counsel
ignored the matter in the district court, may seem a small matter
to an appellate judge in the comfort of chambers, but is a waste of
time for everyone involved and especially for the district court.
The time of a judge is scarcest of all judicial
resources. Every unnecessary remand is a theft of that time from
cases where the dispute really matters–a theft multiplied many
times over in situations where (as in Melendez) lawyers often do
not bother to object because no one notices or supposes the matter
worth correcting. The dilution of plain error requirements in one
case then becomes (as with Melendez) the means or excuse for a
further dilution in other cases, inviting a further downward
spiral.
-27-
It is improbable that even the defendant in this case
really cares whether the probation officer or the judge initially
sets the maximum number of tests; counsel, at taxpayer expense in
most criminal appeals, raise such issues simply because they are
there. Counsel is entitled to do so; the real problem begins when
judges reward such efforts by seeking to rescue forfeited errors of
no importance, encouraging more such claims and more wasted time in
the future.
The work of courts is not an academic exercise. See
Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). Judges are
engaged in getting the world’s work done, implementing legal rules
fairly but within a framework of settled procedural constraints–-
absent which the system could not function. To be inventive in
extending prior precedent is a useful capability for a judge; to be
practical is a necessity.
— Dissenting Opinion Follows —
-28-
LIPEZ, Circuit Judge, with whom TORRUELLA, Circuit Judge,
joins, dissenting. I agree with the majority that the plain error
in Padilla's sentence is not structural in nature. However,
because I believe that it is meaningless to apply the third step of
the plain-error test in these circumstances, and because I would
resolve the fourth step in Padilla's favor, I respectfully dissent
from the majority's decision to leave the error uncorrected.
I. The third step (prejudice)
As the majority acknowledges, we are faced with comparing
"two unknown variables: the limit the district court would have set
on drug tests and the number of tests that the probation officer
will demand." Ante at __. In the majority's view, this
circumstance makes it "nearly impossible" for Padilla to show
prejudice. Id. Actually, the problem is deeper than that.
The plain-error test's third step requires us to assess
the probability that the error at issue affected the outcome of the
proceeding in which it occurred. To meet the plain-error test, the
prejudicial effect on the outcome of the proceeding must be
"substantial and injurious." United States v. Dominguez Benitez,
542 U.S. 74, __, 124 S. Ct. 2333, 2339 (2004) (internal quotation
marks omitted). Typically, when a defendant comes to us alleging
that the district court has committed plain error, we are able to
ask meaningful questions: Would the judge or jury still have found
the defendant guilty, or would the judge have imposed the same
-29-
sentence, or would the defendant still have entered a guilty plea,
if the error had not occurred? We answer those questions "by
viewing such a claim against the entire record. . . . It is simply
not possible for an appellate court to assess the seriousness of
the claimed error by any other means." United States v. Young, 470
U.S. 1, 16 (1985). If we answer those questions "yes," we conclude
that there was no prejudice from the error.
Here, however, we cannot ask that kind of question. This
case involves an erroneous delegation of authority to a probation
officer. That delegation error was not a ruling preliminary to a
guilty verdict, or the imposition of a period of incarceration, or
the acceptance of a guilty plea. We cannot assess the likelihood
that a known outcome would have occurred even without the error.
The error relates only to who imposes a condition of supervised
release. For the purpose of evaluating the significance of the
delegation error itself, the probability question that is so
critical to the prejudice analysis of plain-error review is
meaningless.
If we focus instead on the consequence of the improper
delegation of authority (how many drug tests the defendant will be
required to submit to during supervised release), the probability
question is still meaningless. The improperly delegated authority
has not yet been exercised. Thus we have two unknowns: the number
of drug tests the judge never decided to require, and the number of
-30-
drug tests the probation officer has yet to require. As an
appellate court in these circumstances, we are deprived of any
meaningful ability to review the plain error for prejudice. In
other words, Padilla's failure to show prejudice results not from
any infirmities specific to his case, but from an inherent
limitation on our ability to analyze the issue of prejudice. We
are not applying a "test" when the subject of the test has zero
chance of passing--and no defendant in Padilla's situation will
ever be able to show prejudice. In effect, the majority applies a
per se rule which will always leave this kind of error uncorrected.
The Supreme Court's logic in Sullivan v. Louisiana, 508
U.S. 275 (1993), is instructive here. In that case, the district
court had given the jury an erroneous reasonable-doubt instruction.
Although many constitutional errors are amenable to harmless-error
review, see Chapman v. California, 386 U.S. 18, 24 (1967), the
Court held that the error in Sullivan was not because "the entire
premise of Chapman review is simply absent," Sullivan, 508 U.S. at
280. The Court explained:
There being no jury verdict of guilty-beyond-a-
reasonable-doubt, the question whether the same verdict
of guilty-beyond-a-reasonable-doubt would have been
rendered absent the constitutional error is utterly
meaningless. There is no object, so to speak, upon which
harmless-error scrutiny can operate.
Id.
-31-
As I have said, I reject Padilla's characterization of
his sentencing error as structural. However, we are faced with a
Sullivan-like problem here. Because we are comparing an unknown
with an unknown, we have "no object, so to speak, upon which [the
prejudice] scrutiny can operate." Id. There are some questions to
which no meaningful answer can be given--in other words, where the
question's premise simply does not apply. That is the situation
here. We are not applying a "test" to facts, as if the outcome
might depend on those facts. Thus, the prejudice analysis of
plain-error review in a case such as this is simply illusory.
In concluding that this indeterminacy means that Padilla
loses on the third step, the majority cites a statement from Jones
v. United States: "Where the effect of an alleged error is so
uncertain, a defendant cannot meet his burden of showing that the
error actually affected his substantial rights." 527 U.S. 373,
394-95 (1999). Jones had been convicted of a capital offense and
sentenced to death. On appeal, he claimed that an erroneous
instruction had led the jury to believe that if it failed to
recommend a sentence unanimously (whether life imprisonment or a
death sentence), the court would then impose a sentence of less
than life. 527 U.S. at 387. The court in Jones knew the outcome
of the process affected by the alleged error: that Jones had in
fact been sentenced to death. That type of error lends itself to
the traditional prejudice analysis of plain-error review, in which
-32-
a court must assess the probability of the same outcome even if the
error had not occurred. The Court engaged in such a probability
analysis when it said that
even assuming that the jurors were confused over the
consequences of deadlock, petitioner cannot show the
confusion necessarily worked to his detriment. It is
just as likely that the jurors, loath to recommend a
lesser sentence, would have compromised on a sentence of
life imprisonment as on a death sentence.
Id. at 394-95. For reasons that I have already explained, that
traditional prejudice analysis does not apply to the delegation
error at issue in this case. Here, we do not have the equivalent
information: namely, how many drug tests probation will require.
We are, in short, dealing with a different kind of plain-error
problem. Thus the prejudice analysis in Jones has scant relevance
to the prejudice issue here.
The government insists, however, that we are not dealing
with a different kind of plain-error problem. It cites two cases
which, in its view, demonstrate that even if a decision was made by
the wrong person or institution, the Supreme Court nonetheless
applies plain-error review as usual. Those cases are United States
v. Cotton, 535 U.S. 625 (2002) (drug quantity omitted from
indictment and so decided by judge instead of jury; Court reviewed
for plain error); and Johnson v. United States, 520 U.S. 461 (1997)
(in prosecution for perjury, the element of materiality was decided
by the judge instead of jury; Court reviewed for plain error). In
-33-
each case, the judge made a decision that the jury should have
made. The Court approached the claim of error by reviewing the
entire record and concluding that, even if the question had been
asked correctly of the jury rather than the judge, the outcome
would be the same because the evidence was "overwhelming and
uncontroverted." Cotton, 535 U.S. at 634; see also Johnson, 520
U.S. at 470 (evidence supporting materiality was "overwhelming").
Those cases did not, however, involve an improper delegation of
authority which had never been exercised. They were thus amenable
to a traditional kind of plain-error review; they only confirm that
we are dealing here with a different kind of error, which
necessitates a different approach to plain-error review.
II. The fourth step (public reputation of
judicial proceedings)
The only meaningful plain-error question when reviewing
a claim like Padilla's involves the fourth step: whether the error
so "seriously affects the fairness, integrity or public reputation
of judicial proceedings," United States v. Olano, 507 U.S. 725, 736
(1993) (internal quotation marks and citation omitted), that it
cannot stand. The majority dismisses this error as one "not of
such magnitude or consequence that it would undermine faith in the
judicial system were it to stand uncorrected." Ante at __. I
cannot agree.
-34-
I first note one aspect of the history of this case. In
United States v. Meléndez-Santana, 353 F.3d 93 (1st Cir. 2003),
where a panel of this court first decided that the delegation error
at issue here was plain error, the government did not seek a
rehearing by the panel or en banc. Since that case, as the
majority describes, the government has repeatedly conceded the
error in many cases and agreed to a remand for correction without
asking for en banc review of the plain-error determination. See,
e.g., United States v. Villafane-Jimenez, 410 F.3d 74, 88 (1st Cir.
2005); United States v. Ayala-Pizarro, 407 F.3d 25, 29 (1st Cir.
2005); United States v. Vega, 398 F.3d 149, 154 (1st Cir. 2005).
Even when the original panel in this case explicitly invited the
government to seek a rehearing en banc, the government declined to
do so. See United States v. Padilla, 393 F.3d 256, 261 (1st Cir.
2004) (Campbell & Selya, JJ., concurring), vacated, 403 F.3d 780
(1st Cir. 2005). At that point, the court sua sponte had to call
for a rehearing en banc and order briefing.
As a procedural matter, that call was entirely
appropriate. If we think we have made a legal error, we have a
responsibility to correct it even if the parties are indifferent.
Still, the costs of complying with the Meléndez-Santana rule
arguably fell on government prosecutors, who had to go back to
court and get the sentencing judge to establish the maximum number
of drug tests. When the government displays little interest in
-35-
avoiding this burden, it should warn us that our interest in
avoiding it for them may be incompatible with the fourth step of
plain-error review.
As we have said before, "[t]he 'fairness, integrity or
reputation' plain-error standard is a flexible one and depends
significantly on the nature of the error, its context, and the
facts of the case." United States v. Gandia-Maysonet, 227 F.3d 1,
6 (1st Cir. 2000); see also United States v. Hoyle, 237 F.3d 1, 5
(1st Cir. 2001) (same). This kind of delegation error-–which
leaves the defendant in an impossible position for showing
prejudice, yet which is so easy for the prosecution and trial court
to fix--meets that standard.
A. Sentencing errors are different
The Second Circuit has held that courts have some
flexibility in applying the otherwise strict standards of plain-
error review when faced with sentencing errors. See United States
v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002). We, in turn, have
cited Sofsky for that proposition. See United States v.
Cortes-Claudio, 312 F.3d 17, 24 (1st Cir. 2002). One of the
principle reasons for Sofsky's conclusion was the relative ease of
the burden of correction:
[N]oticing unobjected-to errors that occur at trial
precipitates an entire new trial that could have been
avoided by a timely objection, whereas correcting a
sentencing error results in, at most, only a remand for
resentencing, or, as in this case, for a modification of
the allegedly erroneous condition of supervised release.
-36-
287 F.3d at 125. Here, of course, Padilla makes the same modest
request for a modification in the conditions of his supervised
release, and the same principle applies.
We have demonstrated our fidelity to this principle
recently in our treatment of unpreserved Booker error. For
instance, in United States v. Antonakopoulos, we began with a
classic statement of the third prong. To show prejudice, we said
that a defendant must "point to circumstances creating a reasonable
probability that the district court would impose a different
sentence more favorable to [him] under the new 'advisory
Guidelines' Booker regime." 399 F.3d 68, 75 (1st Cir. 2005). Soon
thereafter, we also said in United States v. Heldeman that we were
"[g]uided by traditional plain error doctrine." 402 F.3d 220, 224
(1st Cir. 2005). Yet we acknowledged that, due to the special
circumstances of unpreserved Booker error, "we are inclined not to
be overly demanding as to proof of probability where, either in the
existing record or by plausible proffer, there is reasonable
indication that the district judge might well have reached a
different result under advisory guidelines." Id. We added that,
[a]fter all, it will be easy enough for the district
judge on remand to say no with a minimum expenditure of
effort if the sentence imposed under the pre-Booker
guidelines regime is also the one that the judge would
have imposed under the more relaxed post-Booker
framework.
-37-
Id.; see also United States v. Wilkerson, 411 F.3d 1, 8 (1st Cir.
2005) (one reason for remand is that "it would be easy enough for
[the district judge] to say no with a minimum expenditure of
effort"). Although Heldeman did not explicitly consider the fourth
step of plain-error review in its analysis, I understand our
consideration of the burden of correcting the error as particularly
relevant to the fourth step. To the extent that Heldeman did not
consider the fourth step at all, it shows that we have been
sensitive to context in the application of plain-error doctrine-
–indeed, quite recently, and in an instance where institutional
concerns about the burden of error correction were important to the
plain-error analysis.
In short, in the sentencing context, we have been able to
adapt traditional plain-error review to unusual circumstances that
the doctrine, and the Supreme Court's explication of it, have not
anticipated. We continue to cite both Antonakopoulos and Heldeman
as our guides in this area of law. See, e.g., United States v.
Lewis, 406 F.3d 11, 21 (1st Cir. 2005).
B. Institutional concerns predominate
We should show that same flexibility here. The fourth
step requires us to focus on the larger, institutional consequences
of the error (as expressed by the phrase the "public reputation of
judicial proceedings"), not only on the consequences of the error
for the defendant before us. Here, those institutional concerns
-38-
should include the importance of courts following explicit rules
that Congress has prescribed. Of course courts will sometimes go
astray,6 as in this case. However, when the burden of getting it
right is so minimal, the obligation to make the correction is that
much greater. We are not confronted here with the prospect of
redoing trials, or plea proceedings, or even sentencing hearings.
Instead, at most, the sentencing judge, with input from the
prosecution and defense counsel, has to correct the improper
delegation of authority to a probation officer and set the maximum
number of drug tests.
Congress has said, for reasons that may not be fully
apparent to us, that judges rather than probation officers should
set the maximum number of drug tests. We acknowledged that
uncertainty about Congress's rationale in Meléndez-Santana itself:
"Legislative history does not reveal why Congress chose to go in a
different direction" from a policy permitting judges to delegate
such decisions. United States v. Meléndez-Santana, 353 F.3d 93,
106 (1st Cir. 2003). The majority views Congress's commitment of
these kinds of decisions to the courts as merely statutory and, in
the final analysis, not particularly important. I acknowledge
that, before 1994, probation officers had the discretion to set the
6
As I have said, a quick search through our recent cases shows
that we are dealing with a common delegation error. See, e.g.,
Villafane-Jimenez, 410 F.3d at 88; Ayala-Pizarro, 407 F.3d at 29;
Vega, 398 F.3d at 154.
-39-
maximum number of drug tests. Still, Congress has made a decision
to alter that practice, and we should respect that choice by
correcting the error that undermines it.
With a minimal expenditure of judicial resources, we can
show that respect and thereby avoid a misapplication of the plain-
error doctrine which, rather than preserving the integrity of
plain-error review, repudiates our recent willingness to apply that
doctrine flexibly in the sentencing context. Such flexibility does
not threaten to open the floodgates of easy error correction, and
burdensome retrials and resentencing, as the majority may fear. We
will retain our ability to distinguish between types of error and
the contexts in which they occur. The integrity of plain-error
review does not suffer from its sensible application.
III. Conclusion
We should not appear to apply the plain-error doctrine
when, in truth, we know that defendants are destined for failure.
That is not a test, properly speaking--that is a per se rule. The
majority essentially opts for that per se approach and would leave
the delegation error at issue here, and all similar errors,
uncorrected. Respectfully, that is a mistake. We should exercise
our discretion to correct this error, thereby carrying out a direct
Congressional command with a minimal burden on prosecutors and the
courts. The fourth step of plain-error review is designed to
-40-
safeguard the reputation of the courts. Leaving this plain error
uncorrected disserves that purpose.
-41-