United States v. Guzman

United States Court of Appeals
For the First Circuit

No. 04-1888

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ GUZMÁN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Boudin Chief Judge,
Torruella and Selya, Circuit Judges.

Michael R. Schneider, Ryan M. Schiff, and Salsberg & Schneider
on brief for appellant.
Michael J. Sullivan, United States Attorney, and Patrick M.
Hamilton, Assistant United States Attorney, on brief for appellee.

August 17, 2005
 SELYA, Circuit Judge. Defendant-appellant José Guzmán

asserts that the Supreme Court's decision in United States v.

Booker, 125 S. Ct. 738 (2005), entitles him to resentencing under

non-mandatory sentencing guidelines. Employing the plain error

analysis applicable to unpreserved claims of Booker error, we

conclude that the appellant suffered no cognizable prejudice

resulting from the application of a mandatory guidelines system.

Accordingly, we affirm his sentence.

I.

Background

On November 10, 1994, a federal grand jury handed up a

multi-count indictment charging the appellant with one count of

conspiracy to possess cocaine base with intent to distribute, seven

counts of possessing with intent to distribute, distributing, and

aiding and abetting the distribution of cocaine base, and one count

of conspiracy to acquire firearms in exchange for illegal drugs.

See 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. §§ 2, 371. These

charges stemmed from the appellant's alleged participation, with

four codefendants, in the sale of crack cocaine to undercover

officers on eleven separate occasions and the coconspirators' plan

to acquire weapons from those officers in exchange for drugs.

After negotiating a plea agreement, the appellant pleaded

guilty to all counts. The district court convened a disposition

hearing on February 9, 1996, and sentenced the appellant to a 240-

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month incarcerative term (a term that was within the applicable

guideline sentencing range of 210 to 262 months). The appellant

challenged that sentence but, after some procedural skirmishing

(not relevant here), a panel of this court affirmed it. United

States v. Guzmán, 132 F.3d 31 (1st Cir. 1997) (unpublished table

decision).

On October 7, 1998, the appellant filed a habeas

petition, see 28 U.S.C. § 2255, in which he claimed, among other

things, that his sentence had been illegally imposed. The district

court wisely appointed counsel, who filed an amended section 2255

petition. On June 4, 2002, the court granted the amended petition;

it found that defense counsel's failure at sentencing to present

humanizing evidence and to argue for a sentence at the low end of

the guideline sentencing range constituted ineffective assistance.

See Guzmán v. United States, No. 98-12086, slip op. at 1 (D. Mass.

June 4, 2004) (unpublished). Accordingly, the court vacated the

appellant's sentence.

The district court convened a new sentencing hearing on

June 18, 2004. This time, the court imposed a 210-month

incarcerative term. That term was at the nadir of the guideline

sentencing range. This timely appeal followed.

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 II.

Analysis

In this venue, the appellant challenges his 210-month

sentence. This challenge devolves from Booker, in which the

Supreme Court held that a defendant's Sixth Amendment right to

trial by jury is violated when his sentence is imposed under a

mandatory guidelines system that gives decretory significance to

judge-found facts. 125 S. Ct. at 756. The appellant argues that

because he was resentenced prior to the Booker decision and under

the mandatory guidelines system then in effect, his sentence is

unconstitutional.

The appellant did not make anything resembling a Sixth

Amendment objection at the time of his resentencing, so his claim

of error is unpreserved. The appellant concedes that point, but he

mounts an aggressive attack on this court's standard of review for

unpreserved claims of Booker error. In the course of that attack,

he maintains both that the articulation of the plain error test, as

set forth in United States v. Antonakopoulos, 399 F.3d 68, 75 (1st

Cir. 2005), and its progeny, should not apply to him and that, in

all events, the application of that test violates due process. In

his view, we ought to abandon Antonakopoulos and instead adopt one

of two alternate approaches. We first repulse the appellant's

assault on Antonakopoulos and then, applying our wonted standard of

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review, determine whether he is entitled to the relief that he

seeks.

A.

Standard of Review

Where, as here, a claim of Booker error has not been

preserved, it is deemed forfeited and we must apply the plain error

standard, as articulated in United States v. Olano, 507 U.S. 725,

732 (1993). See Booker, 125 S. Ct. at 745; United States v.

Heldeman, 402 F.3d 220, 223-24 (1st Cir. 2005). In order to

establish entitlement to relief under that stringent test, an

appellant must show "(1) that an error occurred (2) which was clear

or obvious and which not only (3) affected [his] 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).

In Antonakopoulos, this court addressed the application

of the plain error test in the context of unpreserved claims of

Booker error. 399 F.3d at 75. We explained that a Booker error

occurs not when the judge finds facts necessary to the sentencing

determination but, rather, when the defendant is sentenced under a

mandatory guidelines system that gives decretory significance to

judge-found facts. Id. Thus, in the hindsight provided by Booker,

the first two prongs of the plain error test are met when the

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defendant shows that the sentencing court treated the guidelines as

mandatory rather than advisory. Id.

With respect to the third plain error prong, the

defendant bears the burden of showing that, had the error not

occurred, there is a "reasonable probability" that he would have

received a lesser sentence. Id. Under that standard, "the

probability of a different result is sufficient to undermine

confidence in the outcome of the proceeding." Id. at 78 (quoting

United States v. Dominguez Benitez, 124 S. Ct. 2333, 2340 (2004)).

This means that the defendant must persuade the court that were it

not for the then-mandatory nature of the sentencing guidelines, it

is reasonably likely that the district court would have imposed a

more lenient sentence.

The appellant makes a twofold rejoinder to this format.

First, even though he did not preserve his claim of Booker error,

he nonetheless asseverates that the Duarte plain error test,

adopted in Antonakopoulos, should not apply to his case because he

could not reasonably have anticipated the "dramatic transformation

in sentencing law" wrought by Booker. Requiring such

"clairvoyance," the appellant says, violates his due process rights

under the Fifth Amendment.

We reject these importunings. As a general rule, "a

criminal defendant must seasonably advance an objection to a

potential constitutional infirmity in order to preserve the point."

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Derman v. United States, 298 F.3d 34, 44 (1st Cir. 2002). While a

narrow exception to this principle applies where "objections or

defenses . . . were not known to be available at the time they

could first have been made," Bennett v. City of Holyoke, 362 F.3d

1, 7 (1st Cir. 2004) (internal quotation marks omitted), that

exception is pertinent only if "(i) at the time of the procedural

default, a prior authoritative decision indicated that the defense

was unavailable, and (ii) the defense became available thereafter

by way of supervening authority." Id. Alternatively stated, the

exception applies only when the futility of raising an objection or

defense was unequivocally apparent at the time in question.

That is clearly not the case here. At the time of the

appellant's resentencing, the constitutionality of the sentencing

guidelines was a hot-button issue in criminal law circles. The

Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466,

490 (2000), had paved the way for a Sixth Amendment challenge to

the federal sentencing guidelines. Moreover, a closely related

issue, involving state sentencing guidelines, was pending before

the Supreme Court — an issue that the Court resolved, favorably to

the defendant, in Blakely v. Washington, 542 U.S. 296 (2004). The

bottom line is that, at the time the district court resentenced the

appellant, the constitutionality of the guidelines was very much in

play. Under these circumstances, there is no principled basis for

excusing the appellant's procedural default. See United States v.

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Del Rosario, 388 F.3d 1, 13-14 & n.8 (1st Cir. 2004) (rebuffing a

similar argument).

The second facet of the appellant's rejoinder is equally

unavailing. He entreats us to modify our approach to forfeited

errors in the Booker context and adopt either the presumption-of-

prejudice approach, see United States v. Barnett, 398 F.3d 516,

526-28 (6th Cir. 2005), or the automatic-remand approach, see

United States v. Crosby, 397 F.3d 103, 117-18 (2d Cir. 2005). We

decline this invitation.

We recognize that the courts of appeals have taken a

variety of approaches to the treatment of unpreserved claims of

Booker error. In a multi-panel circuit, however, newly constituted

panels ordinarily are constrained by prior panel decisions directly

(or even closely) on point. See Eulitt v. Me. Dep't of Educ., 386

F.3d 344, 349-50 (1st Cir. 2004) (discussing the law-of-the circuit

doctrine); United States v. Rodriguez, 311 F.3d 435, 438-39 (1st

Cir. 2002) (similar). So it is here: we are firmly bound by this

court's prior panel opinions, such as Heldeman and Antonakopoulos.

To be sure, there are two narrow exceptions to this

iteration of the law-of-the-circuit principle. Under the first of

these exceptions, "[a]n existing panel decision may be undermined

by controlling authority, subsequently announced, such as an

opinion of the Supreme Court, an en banc opinion of the circuit

court, or a statutory overruling." Williams v. Ashland Eng'g Co.,

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45 F.3d 588, 592 (1st Cir. 1995). Under the second exception,

which operates in instances that fairly may be described as hen's-

teeth rare, authority that postdates the original decision,

although not directly controlling, may nevertheless offer a

compelling reason for believing that the former panel, in light of

new developments, would change its collective mind. See id.

Neither of these exceptions is apposite here. See United States v.

Villafane-Jimenez, 410 F.3d 74, 85 (1st Cir. 2005) (per curiam)

(rejecting a similar entreaty to revisit Antonakopoulos); United

States v. Bailey, 405 F.3d 102, 114 (1st Cir. 2005) (same). Thus,

there is no justification for this panel to reconsider the recent

decisions in the Heldeman-Antonakopoulos line of cases.

B. The Merits.

Because a forfeited Booker error engenders review for

plain error, the four-part Duarte test applies. See United States

v. González-Mercado, 402 F.3d 294, 302 (1st Cir. 2005);

Antonakopoulos, 399 F.3d at 75. The Booker error that transpired

here constitutes a clear and obvious sentencing error; thus, the

first two prongs of the plain error test are satisfied. See United

States v. Martins, ___ F.3d ___, ___ (1st Cir. 2005) [No. 04-1474,

slip op. at 26]; Antonakopoulos, 399 F.3d at 75.

Turning to the third prong, we must inquire whether the

appellant has pointed to circumstances creating a reasonable

probability that the district court would have levied a more

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lenient sentence had it not been constrained by the then-mandatory

guidelines system. We have said that we will not be overly

stringent in assessing a defendant's attempt to make that showing.

See Heldeman, 402 F.3d at 224. Still, the defendant must point to

something concrete, whether or not in the sentencing record itself,

that provides a plausible basis for such a finding.1

The appellant essays two arguments in support of a

finding of prejudice. He first notes that a district court, post-

Booker, is required to account for all the factors enumerated in 18

U.S.C. § 3553(a).2 See Booker, 125 S. Ct. at 764-67. Building on

1
The government relies heavily on the district court's remarks
at the original sentencing (in 1996) to reflect the court's
attitude (and, thus, the likelihood of a lower sentence). In
ordinary circumstances, that information would be relevant. Here,
however, the district court subsequently found that the appellant's
counsel at the original sentencing hearing was constitutionally
ineffective in presenting the appellant's side of the story. See
Guzmán, No. 98-12086, slip op. at 1. Because the court's ability
to assess the situation was compromised at that time, we think that
the course of prudence is to refrain from attributing any
significance to the court's 1996 comments.
2
These factors include:

(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the
need for the sentence imposed — (A) to reflect the
seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B)
to afford adequate deterrence to criminal conduct; (C) to
protect the public from further crimes of the defendant;
and (D) to provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective manner; (3)
the kinds of sentences available; (4) the kinds of
sentence and the sentencing range established for — (A)
the applicable category of offense committed by the

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this foundation, he posits that his sentence "would have looked

quite different" had this been done.

This argument misapprehends a defendant's burden on plain

error review. It is not enough for a defendant to show that he was

not given the benefit of a sentence fashioned under advisory

guidelines; rather, he must offer some reasonable indication that

the sentencing court, freed of the shackles forged by mandatory

guidelines, would have fashioned a more favorable sentence. See

Heldeman, 402 F.3d at 224; Antonakopoulos, 399 F.3d at 75.

Therefore, the inherent uncertainty about how the sentencing court

would have exercised its newfound discretion when weighing the

section 3553(a) factors under an advisory guidelines system is not

enough to enable a defendant to carry his burden.

That reality disposes of the appellant's argument. While

he describes at some length the vistas that the district court is

now permitted to explore, he points to no specific circumstances

signaling that the court's deliberations with respect to the

section 3553(a) factors would likely have yielded a lower sentence.

Thus, his argument falls short of passing the third prong of the

plain error test.

applicable category of defendant as set forth in the
guidelines . . .; (6) the need to avoid unwarranted
sentence disparities among defendants with similar
records . . .; and (7) the need to provide restitution to
any victims of the offense.

18 U.S.C. § 3553(a).

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 The appellant next contends that had the district court

sentenced him under an advisory guidelines system, it probably

would have given him a lower sentence based on the poverty and the

difficulties with cultural assimilation that he faced as a child,

his current family circumstances, and the likelihood that he will

be deported upon the completion of his sentence. In support of

this contention, the appellant cites the fact that the district

court sentenced him at the bottom of the applicable guideline range

and argues that the court might have granted a further reduction

had it not been constrained by a mandatory guidelines system.

The fact that the district court imposed a sentence at

the bottom of the guideline sentencing range, standing alone, does

not give rise to a reasonable probability that, under advisory

guidelines, it would have imposed a sentence lower than what the

guidelines prescribed. See United States v. Figuereo, 404 F.3d

537, 542 (1st Cir. 2005); United States v. Cacho-Bonilla, 404 F.3d

84, 95 (1st Cir. 2005); United States v. Serrano-Beauvaix, 400 F.3d

50, 55 (1st Cir. 2005). A defendant who is sentenced at the bottom

of the guideline range must show some additional basis for a

finding that the district court would have been inclined to

disregard the range and sentence below it. See Figuereo, 404 F.3d

at 542; Serrano-Beauvaix, 400 F.3d at 55.

The appellant has failed to make such a showing. He

alludes several times to a comment made by the district court

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during the resentencing, but that comment is ambiguous at best.3

While the appellant reads this statement to indicate the court's

view that the drug laws are the source of "terrible human

consequences" and to signal the court's sympathy for the fact that

the appellant will spend so much time apart from his family, an

equally plausible interpretation is that the court was expressing

its belief that "terrible human consequences" result from "people

in this country dealing drugs" (such as the appellant). In all

events, this generalized, matter-of-fact statement about the

consequences of drug crimes does not indicate that the court felt

that the appellant, given his individualized circumstances,

deserved a lesser sentence. Thus, we cannot conclude that the

statement furnishes the missing link and gives rise to a reasonable

probability that the district court, under an advisory guidelines

system, would have been inclined to impose a more lenient sentence.

To cinch matters, we note that the court's statements in

refusing to grant the appellant's requests for downward departures

at the time of resentencing are suggestive of the fact that the

court deemed the case quite ordinary. Referring to the appellant's

3
The court stated:

Of course, none of us would be here if you hadn't
been in this country dealing drugs, and the drug laws in
this country provide for long sentences in cases like
yours, and it does have terrible human consequences. I
know that you really do miss all those people, including
those that you mentioned today.

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familial circumstances, the court stated that there was "no

evidence supporting the claim that his family relationship [was]

unique or extraordinary." Guzmán, No. 98-12086, slip op. at 43.

The court further found the appellant's arguments relating to the

difficulties of cultural assimilation to be utterly unpersuasive.

Id. at 44. And, finally, the court discerned nothing about the

appellant's forecasted deportation that would "take [the

appellant's] situation outside of the ordinary." Id. These

responses indicate that the court was not moved by the

circumstances of the case and strongly suggest that the court would

have had little inclination to reduce the 210-month sentence. See

Martins, ___ F.3d at ___ [slip op. at 26-27].

To sum up, the appellant committed a serious offense.

The record indicates that he was at ease in his role as a drug

dealer who peddled substantial volumes of crack cocaine. There is

nothing in the record to suggest any hesitation or discomfiture on

the district court's part in meting out a 210-month sentence. It

follows that the appellant has failed to carry his burden of

showing prejudice tied to the use of a mandatory guidelines regime.

We need go no further. Our standard plain error test

applies to the appellant's unpreserved claim of Booker error.

Because the appellant has not demonstrated a reasonable probability

that he would have received a lower sentence under an advisory

guidelines system, he fails that test.

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The appellant's sentence is affirmed.

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