United States v. White

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 04-4349
ANTHONY GERALD WHITE, SR.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(CR-03-375-WDQ)

Argued: February 3, 2005

Decided: April 26, 2005

Before WILKINS, Chief Judge, DUNCAN, Circuit Judge, and
James C. CACHERIS, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Chief Judge Wilkins wrote the opin-
ion, in which Judge Cacheris joined. Judge Duncan wrote an opinion
concurring in part and dissenting in part.

COUNSEL

ARGUED: David Richard Solomon, GLASER & SOLOMON,
L.L.C., Baltimore, Maryland, for Appellant. Christopher John
Romano, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
2 UNITED STATES v. WHITE
ON BRIEF: Thomas M. DiBiagio, United States Attorney, Balti-
more, Maryland, for Appellee.

OPINION

WILKINS, Chief Judge:

Anthony Gerald White, Sr., appeals his convictions and sentence
for drug and firearm offenses. We find no reversible error in the evi-
dentiary rulings challenged by White and therefore affirm his convic-
tions. Further, although we find that the district court plainly erred
under United States v. Booker, 125 S. Ct. 738 (2005),1 by treating the
sentencing guidelines as mandatory in determining White’s sentence,
we conclude that White has not carried his burden of demonstrating
that this error affected his substantial rights. Thus, we affirm White’s
sentence.

I.

This case arises from an investigation by the United States Drug
Enforcement Administration (DEA) into drug trafficking activities at
public housing complexes in Annapolis, Maryland. In early 2003,
DEA agents used a confidential informant to make two controlled
purchases of cocaine base from Gerald Hyman. Because these pur-
chases involved communications with Hyman on his cellular tele-
phone, agents obtained authority to conduct wiretaps on that
telephone. Agents subsequently recorded calls between Hyman and
White indicating that they were engaged in drug trafficking. After
conducting additional surveillance of White and Hyman, agents
obtained a search warrant for White’s residence. Upon executing that
warrant, officers seized two loaded firearms from a closet in the mas-
ter bedroom, as well as five boxes of ammunition from a dresser in
that bedroom.

White was charged with one count of conspiring to distribute 50
grams or more of cocaine base within 1,000 feet of a public housing
1
Consolidated with United States v. Fanfan, 125 S. Ct. 738 (2005).
 UNITED STATES v. WHITE 3
facility, see 21 U.S.C.A. §§ 846, 860(a) (West 1999), and two counts
of possessing a firearm or ammunition as a convicted felon, see 18
U.S.C.A. § 922(g)(1) (West 2000). Following a trial, a jury convicted
White on all three counts. At sentencing, the district court grouped the
three counts together pursuant to United States Sentencing Guidelines
Manual § 3D1.2(c) (2003). The district court determined that White
was subject to a base offense level of 34 because the charged drug
conspiracy involved locations within 1,000 feet of a public housing
facility and 50 to 150 grams of cocaine base. See U.S.S.G.
§ 2D1.2(a)(1) (providing for a base offense level of "2 plus the
offense level from §2D1.1 applicable to the quantity of controlled
substances directly involving a protected location"); id. § 2D1.1(c)(4)
(providing for a base offense level of 32 for this drug quantity range).
The district court imposed a two-level enhancement for White’s pos-
session of a firearm in connection with the drug conspiracy, see id.
§ 2D1.1(b)(1). White does not dispute that the facts found by the jury
supported an offense level of 36 and a sentencing range of 188 to 235
months’ imprisonment.2 The district court further enhanced this
offense level by two levels for obstruction of justice based on its find-
ing that White committed perjury during his testimony at trial, see id.
§ 3C1.1. Based on White’s total offense level of 38 and his criminal
history category of I, the applicable guideline range was 235 to 293
months’ imprisonment. The district court imposed a sentence at the
bottom of this range, sentencing White to 235 months for the conspir-
acy offense and to concurrent 120-month terms for the firearm and
ammunition offenses.

II.

White first contends that the district court committed two errors in
admitting evidence at trial over his objection. We review rulings con-
cerning the admission of evidence for abuse of discretion. See United
States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004).
2
We reject White’s claim that the base offense level applied by the dis-
trict court is unsupported by the record. The Government presented
ample evidence to support the factual findings by the district court
regarding White’s base offense level, and the jury found those same facts
in reaching its verdict.
4 UNITED STATES v. WHITE
A.

White claims that the district court improperly admitted rebuttal
testimony from Cassandra White (Cassandra), one of White’s alleged
coconspirators. White claims that the admission of this testimony vio-
lated Rules 404(b) and 608(b) of the Federal Rules of Evidence. We
disagree.

On direct examination, White denied any involvement in drug traf-
ficking during the period of the charged conspiracy, January through
July 2003, instead claiming that his recorded telephone conversations
with Hyman concerned a different illegal activity—the sale of fraudu-
lent automobile insurance documents. White admitted, however, that
he sold cocaine for a brief period in 1989. On cross-examination,
White clarified that he sold small quantities of powder cocaine
approximately once a week during a six-month period in 1989. White
further testified that although he had seen Cassandra before, he did
not know her personally, nor had he ever sold drugs to her. Over
White’s objection, the district court then permitted the Government to
call Cassandra as a rebuttal witness. Although the Government
offered various bases for the admission of Cassandra’s testimony, the
district court ultimately concluded that the testimony was admissible
under Rule 404(b). Cassandra testified that for approximately one
year during the early 1990s, she regularly purchased cocaine base
from White, "[s]ometimes once a day, twice a day, sometimes three
times a day." J.A. 683.

Rule 404(b) provides that evidence of prior bad acts may be admis-
sible for purposes other than "to prove the character of a person in
order to show action in conformity therewith." Such purposes include
"proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." Id. Evidence of prior bad
acts is admissible under Rule 404(b) if the evidence is (1) relevant to
an issue other than the general character of the defendant,
(2) "probative of an essential claim or an element of the offense," and
(3) reliable. United States v. Queen, 132 F.3d 991, 997 (4th Cir.
1997). Additionally, the probative value of the evidence must not be
substantially outweighed by the danger that it will cause unfair preju-
dice. See Fed. R. Evid. 403; Queen, 132 F.3d at 997.
 UNITED STATES v. WHITE 5
Here, White does not challenge the reliability of Cassandra’s testi-
mony. Rather, he apparently contends that the testimony was irrele-
vant, unnecessary, and unfairly prejudicial. In particular, White
argues that this evidence concerned events factually distinct and tem-
porally remote from the charged conspiracy. We conclude, however,
that the evidence of White’s prior drug sales to Cassandra was rele-
vant and necessary. Contrary to White’s testimony that he had only
dabbled in the drug trade for a brief period, Cassandra’s testimony
tended to show that White had been a regular dealer of narcotics and
therefore that he possessed the requisite knowledge and intent to com-
mit the charged offense. See United States v. Sanchez, 118 F.3d 192,
196 (4th Cir. 1997) (holding that a not-guilty plea places defendant’s
intent at issue and that evidence of similar prior crimes can thus be
relevant to prove intent to commit charged crime); United States v.
Mark, 943 F.2d 444, 448 (4th Cir. 1991) (explaining that "a defen-
dant’s knowledge and intent are clearly elements which the prosecu-
tion must establish to prove a [narcotics] conspiracy"). Further, as the
district court noted, although Cassandra’s testimony concerned events
that were remote in time from the charged offense, the evidence was
nonetheless probative because it involved prior drug transactions
between White and Cassandra—both of whom were named as cocon-
spirators in the present indictment. See Sanchez, 118 F.3d at 195
(explaining that evidence of earlier narcotics transactions between
alleged coconspirators "show[ed] the relationships between the par-
ties").

Moreover, the probative value of this evidence was not substan-
tially outweighed by the danger that it would cause unfair prejudice.
In light of the Government’s other compelling evidence that White
was involved in the charged conspiracy and White’s admission of
some prior drug dealing, we cannot say that the evidence concerning
his prior dealings with Cassandra unfairly prejudiced the jury against
him. And, any risk of such prejudice was mitigated by a limiting
instruction from the district court clarifying the issues for which the
jury could properly consider this evidence. See Hodge, 354 F.3d at
312. We therefore conclude that the district court did not abuse its
discretion in admitting Cassandra’s testimony under Rule 404(b).3
3
White also suggests that the Government failed to give proper notice
of its intent to offer Rule 404(b) evidence at trial. See Fed. R. Evid.
6 UNITED STATES v. WHITE
White also contends, however, that the admission of Cassandra’s
testimony violated Rule 608(b), which provides that "[s]pecific
instances of the conduct of a witness, for the purpose of attacking or
supporting the witness’ character for truthfulness . . . may not be
proved by extrinsic evidence." White relies on United States v. Ling,
581 F.2d 1118 (4th Cir. 1978), in which we reversed a defendant’s

404(b) (providing that "upon request by the accused, the prosecution in
a criminal case shall provide reasonable notice in advance of trial, or dur-
ing trial if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence [of prior bad acts] it intends to intro-
duce at trial"); Hodge, 354 F.3d at 312. It appears that White first learned
that the Government planned to offer evidence of his prior drug dealing
during a colloquy with the court in the middle of trial. However, White
likely has not preserved the issue of late notice. Upon first learning that
the Government might offer the evidence, White complained about the
lack of prior notice. The district court then directed the parties to confer
about the details of this evidence and indicated that it would address the
issue later in the proceedings. When the district court revisited this issue,
White objected to the admission of Cassandra’s testimony on various
grounds but did not mention the issue of notice. See Bituminous Constr.,
Inc. v. Rucker Enters., 816 F.2d 965, 969 (4th Cir. 1987) (refusing, when
party objected on specific ground to admission of evidence when it was
introduced at trial, to consider argument that evidence should have been
excluded on another ground); cf. United States v. Ellis, 121 F.3d 908,
918 (4th Cir. 1997) (holding that when district court deferred ruling on
defendant’s motion in limine regarding certain evidence and defendant
subsequently failed to object when that evidence was introduced during
trial, review was limited to plain error). Nor has White meaningfully
developed this issue in his appellate brief: his argument on this point
essentially consists of one sentence.
Even if we were to review this issue for plain error, see Fed. R. Crim.
P. 52(b), we would conclude that any plain error in admitting Cassan-
dra’s testimony absent sufficient notice did not affect White’s substantial
rights because, in light of the Government’s other compelling evidence
that White was engaged in the charged drug conspiracy, the admission
of evidence of White’s prior drug dealing did not affect the outcome of
the trial. See United States v. Olano, 507 U.S. 725, 732, 734 (1993). For
the same reason, we conclude that even if White had preserved the issue
of insufficient notice, the admission of Cassandra’s testimony was harm-
less. See Fed. R. Evid. 103(a); United States v. Savage, 390 F.3d 823,
830 (4th Cir. 2004).
 UNITED STATES v. WHITE 7
narcotics convictions because the district court had improperly per-
mitted the Government to introduce testimony from a police officer
rebutting the defendant’s testimony on cross-examination that he had
never discharged a firearm on a public street. See Ling, 581 F.2d at
1121-23. In Ling, however, "[t]here was no link between the rebuttal
testimony . . . and an element of the crime charged"; rather, "the only
purpose of [that testimony was] to impeach the defendant’s credibility
and prejudice the jury against him." Id. at 1122. Here, as explained
above, Cassandra’s rebuttal testimony was probative of whether
White possessed the necessary intent for the charged conspiracy
offense. And, we have held that even when rebuttal testimony regard-
ing a defendant’s prior bad acts impeaches the defendant’s earlier tes-
timony denying such acts, "Rule 608(b) should not be read so broadly
as to disallow the presentation of extrinsic evidence that is probative
of a material issue in a case." United States v. Smith Grading & Pav-
ing, Inc., 760 F.2d 527, 531 (4th Cir. 1985). We therefore conclude
that the admission of Cassandra’s testimony did not violate Rule
608(b).

B.

White also claims that the district court erred in admitting evidence
that a defaced law enforcement badge and a sweatshirt bearing the
words "Fugitive Agent" were found in the same dresser drawer as two
of the boxes of ammunition seized from White’s residence. White
asserts that the admission of this evidence violated Federal Rule of
Evidence 403 because the jury may have inferred that White used the
items to impersonate a law enforcement officer. See Fed. R. Evid. 403
(providing that relevant evidence "may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury").

Although White admitted that the badge and sweatshirt belonged
to him, he denied that those items were found in the dresser contain-
ing the ammunition. White and his wife also testified that the ammu-
nition and the dresser in which it was kept belonged solely to her.
Thus, the evidence that officers found the badge and sweatshirt in the
dresser containing the ammunition was relevant to show that White
constructively possessed the ammunition. To obtain a conviction on
a theory of constructive possession, the Government must show
8 UNITED STATES v. WHITE
through direct or circumstantial evidence "that the defendant exer-
cised, or had the power to exercise, dominion and control over the
item." United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997)
(internal quotation marks omitted). Here, proof that the ammunition
was found in White’s residence likely would have been sufficient to
show that White constructively possessed it. See United States v.
Shorter, 328 F.3d 167, 172 (4th Cir.), cert. denied, 540 U.S. 928
(2003). Nevertheless, because White and his wife claimed to have
kept separate dressers, the district court did not abuse its discretion in
admitting the evidence of the badge and sweatshirt to demonstrate
that White exercised control over the dresser in which the ammunition
was found. See United States v. Burgos, 94 F.3d 849, 873 (4th Cir.
1996) (en banc) (explaining that constructive possession "may be sole
or joint" (internal quotation marks omitted)).

In addition, the probative value of this evidence was not substan-
tially outweighed by the danger of unfair prejudice. The Government
did not attempt to use this evidence for any purpose other than dem-
onstrating constructive possession. We thus conclude that the district
court did not abuse its discretion in refusing to exclude this evidence
under Rule 403.

III.

White next argues that under United States v. Booker, 125 S. Ct.
738 (2005), the district court erred by treating the sentencing guide-
lines as mandatory in determining his sentence. White thus contends
that he is entitled to "seek resentencing pursuant to the remedial
scheme enunciated in Booker." Supp. Br. of Appellant at 8; see
Booker, 125 S. Ct. at 769. Because White did not raise this issue in
the district court, our review is for plain error. See Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). To estab-
lish plain error, White must show that an error occurred, that the error
was plain, and that the error affected his substantial rights. See Olano,
507 U.S. at 732. Even if White makes this three-part showing, correc-
tion of the error remains within our discretion, which we "should not
exercise . . . unless the error ‘seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.’" Id. (quoting United
States v. Young, 470 U.S. 1, 15 (1985)) (second alteration in original).
 UNITED STATES v. WHITE 9
As we recently explained in United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005), Booker held that the Sixth Amendment is vio-
lated when a district court, acting pursuant to the Sentencing Reform
Act and the guidelines, imposes a sentence greater than the maximum
authorized solely by the facts found by the jury. See Booker, 125 S.
Ct. at 756. To remedy this Sixth Amendment problem, the Supreme
Court severed and excised the statutory provisions that mandated sen-
tencing and appellate review in conformance with the guidelines, see
id. at 764, thereby rendering the guidelines "effectively advisory," id.
at 757. After Booker, the discretion of a sentencing court is no longer
mandatorily bound by the range prescribed by the guidelines, though
a sentencing court is still required to "consult [the] Guidelines and
take them into account when sentencing," id. at 767. In determining
a defendant’s sentence, a sentencing court must first calculate the
applicable guideline range. See Hughes, 401 F.3d at 546. Then, the
court must consider that range as well as other relevant factors set
forth in the guidelines and those factors set forth in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2004) before imposing the sentence.
See Booker, 125 S. Ct. at 764-65;4 Hughes, 401 F.3d at 546. If the
court imposes a sentence outside the guideline range, it should
explain its reasons for doing so. See Hughes, 401 F.3d at 546 & n.5
(citing 18 U.S.C.A. § 3553(c)(2) (West Supp. 2004), requiring sen-
tencing courts to set forth "the specific reason for the imposition of
a sentence different from that described" in the guidelines). If the sen-
tence is appealed, we will affirm it as long as it is within the statu-
torily prescribed range, see Apprendi v. New Jersey, 530 U.S. 466,
490 (2000), and is reasonable, see Booker, 125 S. Ct. at 765-66. See
4
Booker explained that the remaining provisions of the Sentencing
Reform Act, which were left intact by the Court’s holding, still require
sentencing courts "to consider the Guidelines sentencing range estab-
lished for the applicable category of offense committed by the applicable
category of defendant, the pertinent Sentencing Commission policy state-
ments, the need to avoid unwarranted sentencing disparities, and the need
to provide restitution to victims." Id. at 764-65 (citing 18 U.S.C.A.
§ 3553(a)(1), (3)-(7)) (internal quotation marks, citation & alteration
omitted). Sentencing courts must also continue "to impose sentences that
reflect the seriousness of the offense, promote respect for the law, pro-
vide just punishment, afford adequate deterrence, protect the public, and
effectively provide the defendant with needed educational or vocational
training and medical care." Id. at 765 (citing 18 U.S.C.A. § 3553(a)(2)).
10 UNITED STATES v. WHITE
Hughes, 401 F.3d at 546-47. With this background in mind, we turn
to the plain-error inquiry.

A.

"In reviewing for plain error, our initial inquiry is whether an error
occurred." United States v. Hastings, 134 F.3d 235, 239 (4th Cir.
1998). In determining whether an error occurred here, it is important
to understand the specific error asserted by White. At oral argument,
White clarified that he is not asserting that the sentence imposed by
the district court violated his Sixth Amendment rights. Rather,
White’s sole claim under Booker is that the district court erred in sen-
tencing him under a mandatory, rather than an advisory, guidelines
regime.5

In Booker, the Supreme Court emphasized that "[lower courts]
must apply today’s holdings—both the Sixth Amendment holding and
[the] remedial interpretation of the Sentencing Act—to all cases on
direct review." Booker, 125 S. Ct. at 769. We specifically recognized
this point in Hughes: "The Booker Court concluded that [its] remedial
scheme should apply not only to those defendants, like Booker, whose
sentences had been imposed in violation of the Sixth Amendment, but
also to those defendants, like Fanfan, who had been sentenced under
the mandatory regime without suffering a constitutional violation."
Hughes, 401 F.3d at 547; see id. at 553. Thus, even in the absence of
a Sixth Amendment violation, the imposition of a sentence under the
former mandatory guidelines regime rather than under the advisory
regime outlined in Booker is error.6 See id. at 553; see also Olano,
5
In Hughes, we did not consider whether the district court erred in fail-
ing to treat the guidelines as advisory in sentencing Hughes because
Hughes had not raised that issue on appeal. See Hughes, 401 F.3d at 552.
Rather, Hughes argued only that the district court violated his Sixth
Amendment rights by imposing a sentence that exceeded the maximum
permitted by the jury’s verdict alone. See id. at 545, 552. Here, however,
White has raised only the issue of whether the district court erred in
treating the guidelines as mandatory in determining his sentence. And,
we decline to raise the Sixth Amendment issue sua sponte.
6
Noting that Booker "created a broader category of defendants eligible
for resentencing than those for whom judicial fact finding increased their
 UNITED STATES v. WHITE 11
507 U.S. at 732-33 (describing "error" as a "[d]eviation from a legal
rule"). The district court therefore erred in treating the guidelines as
mandatory in sentencing White.7

B.

"Next, the error must be plain." Hastings, 134 F.3d at 239. For pur-
poses of plain-error review, "‘[p]lain’ is synonymous with ‘clear’ or,
equivalently, ‘obvious.’" Olano, 507 U.S. at 734. An error is plain at
least when "the law at the time of trial was settled and clearly contrary
to the law at the time of appeal." Johnson v. United States, 520 U.S.
461, 468 (1997); see United States v. David, 83 F.3d 638, 645 (4th
Cir. 1996) (holding that an error is plain when "an objection at trial
would have been indefensible because of existing law, but a super-
vening decision prior to appeal reverses that well-settled law"). After
Booker, sentencing courts must treat the guidelines as advisory and
consider them along with various other factors in determining a
defendant’s sentence. See Booker, 125 S. Ct. at 764-65. And, based
on the directive in Booker that the advisory guidelines regime must
be applied to all cases on direct review, we conclude that the error of
sentencing White under a mandatory guidelines regime is plain.

sentence," post, at 25, the dissent maintains that all defendants seeking
resentencing under Booker must be treated the same under plain-error
review and therefore that Hughes requires us to remand White’s case.
But the dissent overlooks that this "broader category" includes different
types of defendants who may assert different claims under Booker. See
supra note 5 (distinguishing Sixth Amendment claim raised by defendant
in Hughes from error of sentencing under mandatory regime alleged by
White). Indeed, Hughes rejected the notion that all Booker claims are
equivalent, emphasizing that sentencing under a mandatory regime is "a
separate class of error . . . distinct from the Sixth Amendment claim that
gave rise to the decision in Booker, and it is non-constitutional in
nature." Hughes, 401 F.3d at 553. "This error," Hughes explained, "may
be asserted even by defendants whose sentences do not violate the Sixth
Amendment." Id. We therefore must conduct an independent plain-error
analysis of White’s claim that he was erroneously sentenced under a
mandatory regime.
7
We of course offer no criticism of the district judge, who followed the
law and procedure in effect at the time of White’s sentencing.
12 UNITED STATES v. WHITE
C.

Third, White must show that the error of sentencing him under a
mandatory guidelines regime "affect[ed] [his] substantial rights."
Olano, 507 U.S. at 732 (internal quotation marks omitted). "[I]n most
cases [this] means that the error must have been prejudicial: It must
have affected the outcome of the district court proceedings." Id. at
734; accord Hastings, 134 F.3d at 240. Thus, "[n]ormally, although
perhaps not in every case, the defendant must make a specific show-
ing of prejudice to satisfy the ‘affecting substantial rights’ prong of
Rule 52(b)." Olano, 507 U.S. at 735. However, the Olano Court
noted, without deciding, that there may be "errors that should be pre-
sumed prejudicial if the defendant cannot make a specific showing of
prejudice" and that "[t]here may be a special category of forfeited
errors that can be corrected regardless of their effect on the outcome."
Id. We consider each of these three possibilities below. See id. at 737;
United States v. Tipton, 90 F.3d 861, 874 (4th Cir. 1996).

1.

We first consider whether sentencing White under a mandatory
guidelines regime falls within the special category of forfeited errors
suggested in Olano "that should be presumed prejudicial if the defen-
dant cannot make a specific showing of prejudice." Olano, 507 U.S.
at 735. Although we have never held that any particular unpreserved
error must be presumed prejudicial, we have acknowledged that such
errors might exist. See United States v. Rolle, 204 F.3d 133, 139 (4th
Cir. 2000) (assuming arguendo that such a category of errors exists
but concluding that the error in question did not fall within that cate-
gory); Tipton, 90 F.3d at 875 (same); United States v. Floresca, 38
F.3d 706, 713 n.16 (4th Cir. 1994) (en banc) (same); United States v.
Moore, 11 F.3d 475, 481-82 (4th Cir. 1993) (same). While we need
not decide today the precise circumstances, if any, under which an
error should be presumed prejudicial, we believe that any such deter-
mination will depend on consideration of two factors: (1) the general
risk that defendants subjected to the particular type of error will be
prejudiced and (2) the difficulty of proving specific prejudice from
that type of error. Cf. Olano, 507 U.S. at 741 (declining to presume
prejudice because mere occurrence of error did not create sufficient
risk of prejudice).
 UNITED STATES v. WHITE 13
We recognize that our sister circuits —while sharing our concern
for the ability of a particular defendant to establish prejudice—have
looked primarily to the gravity of the error, limiting their risk inqui-
ries simply to whether an opportunity for a prejudicial effect existed
under the circumstances. See, e.g., United States v. Reyna, 358 F.3d
344, 351-52 (5th Cir.) (en banc) (presuming prejudice from a denial
of allocution "given the nature of the right and the difficulty of prov-
ing that a violation affected a specific sentence"), cert. denied, 124 S.
Ct. 2390 (2004); United States v. Prouty, 303 F.3d 1249, 1253 (11th
Cir. 2002) (presuming prejudice from a denial of allocution
"[b]ecause allocution plays a central role in the sentencing process"
and "a defendant cannot easily demonstrate prejudice" caused by its
denial); United States v. Adams, 252 F.3d 276, 287-88 (3d Cir. 2001)
(presuming prejudice in light of difficulty of proving actual prejudice
and because allocution, while not constitutional, is "ancient in origin"
and "is the type of important safeguard that helps assure the fairness,
and hence legitimacy, of the sentencing process"). We disagree with
this emphasis.

Contrary to our sister circuits, we believe it is incorrect to make the
gravity of the violated right a principal focus in determining whether
prejudice should be presumed. Indeed, courts routinely refuse to
reverse convictions and sentences on the basis that a serious error
nevertheless did not affect the defendant’s substantial rights. See, e.g.,
United States v. Ellis, 326 F.3d 593, 599-600 (4th Cir.) (holding that
sentence exceeding statutory maximum by at least 20 years did not
affect defendant’s substantial rights because defendant received equal
or longer concurrent sentences on other counts), cert. denied, 540
U.S. 907 (2003); Moore, 11 F.3d at 481-82 (holding that statements
by prosecutor during closing argument that defendant and coconspira-
tor were "liars," though "highly improper," did not affect defendant’s
substantial rights because record showed that statements did not affect
outcome of trial; expressly refusing to presume prejudice). As the
Supreme Court indicated in Olano, a proper focus of the presumed
prejudice inquiry is not on the gravity of the right at stake, but rather
on the risk that the defendant has been prejudiced but will be unable
to demonstrate the existence of that prejudice. See Olano, 507 U.S.
at 741.

In the case at hand, we conclude that the general risk of harm does
not in itself suffice to warrant a presumption of prejudice. Cf. id.
14 UNITED STATES v. WHITE
(holding that risk of prejudice from improper presence of alternate
jurors during jury deliberations was insufficient "to justify a presump-
tion of prejudice"). In any given case after Booker, a district court will
calculate, consult, and take into account the exact same guideline
range that it would have applied under the pre-Booker mandatory
guidelines regime. See Booker, 125 S. Ct. at 767; Hughes, 401 F.3d
546. This guideline range remains the starting point for the sentencing
decision. See Hughes, 401 F.3d at 546. And, if the district court
decides to impose a sentence outside that range, it should explain its
reasons for doing so. See id. Thus, while we believe that the appropri-
ate circumstances for imposing a sentence outside the guideline range
will depend on the facts of individual cases, we have no reason to
doubt that most sentences will continue to fall within the applicable
guideline range.

Our holding with respect to this factor is consistent with the sub-
stantial rights analysis undertaken by the Supreme Court in Jones v.
United States, 527 U.S. 373, 394-95 (1999). In Jones, the Court
reviewed for plain error a capital defendant’s claim that certain jury
instructions misled the jury into believing that if it did not decide
unanimously whether to recommend a life sentence or the death pen-
alty, the judge would impose a sentence less severe than life impris-
onment. See Jones, 527 U.S. at 384-95. The Court held that the
instructions were not erroneous, see id. at 389-94, but further
explained that the defendant could not satisfy the substantial rights
prong in part because there was no nonspeculative basis for conclud-
ing that the alleged error was prejudicial:

[E]ven assuming that the jurors were confused over the con-
sequences 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. 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. Cf.
[Romano v. Oklahoma, 512 U.S. 1, 14 (1994).] In Romano,
we considered a similar argument, namely, that jurors had
disregarded a trial judge’s instructions and given undue
weight to certain evidence. In rejecting that argument, we
 UNITED STATES v. WHITE 15
noted that, even assuming that the jury disregarded the trial
judge’s instructions, "[i]t seems equally plausible that the
evidence could have made the jurors more inclined to
impose a death sentence, or it could have made them less
inclined to do so." Ibid. Any speculation on the effect of a
lesser sentence recommendation, like the evidence in
Romano, would have had such an indeterminate effect on
the outcome of the proceeding that we cannot conclude that
any alleged error in the District Court’s instructions affected
petitioner’s substantial rights.

Id. at 394-95 (emphasis added).

Furthermore, as to the second factor, the difficulty of proving spe-
cific prejudice, Jones also provides important guidance. This is so
because demonstrating prejudice from an erroneous jury instruction—
the error at issue in Jones—is, if anything, more difficult than proving
prejudice from the imposition of a sentence under a mandatory guide-
lines regime—the error at issue here. While jury deliberations are
generally secret, a district court often explains on the record its rea-
sons for selecting the sentence imposed. See infra Part III.D. Indeed,
courts are required to give their reasons whenever the sentencing
range exceeds 24 months. See 18 U.S.C.A. § 3553(c)(1) (West Supp.
2004). That the Supreme Court in Jones analyzed for actual prejudice
the allegedly erroneous jury instructions at issue there—even though
the defendant had virtually no chance of demonstrating prejudice—
strongly indicates that the difficulty of proving actual prejudice from
the imposition of sentence under the mandatory regime is not alone
a sufficient basis for presuming prejudice. See also Olano, 507 U.S.
at 740-41 (declining to presume prejudice from improper presence of
alternate jurors during jury deliberations); infra Part III.D.

Thus, we conclude that with respect to the error at issue here, nei-
ther the general risk that defendants subjected to it will be prejudiced,
nor the difficulty of proving specific prejudice, warrant a presumption
of prejudice. Our rejection of a presumption of prejudice here is also
consistent with our previous decision in United States v. Bros. Con-
struction Co. of Ohio, 219 F.3d 300 (4th Cir. 2000). There, Tri-State
Asphalt Corporation (Tri-State) was convicted of fraud charges relat-
ing to its involvement in a federally funded highway project and was
16 UNITED STATES v. WHITE
sentenced to pay a fine of $500,000. See Bros. Constr., 219 F.3d at
308. On appeal, Tri-State argued for the first time (and the Govern-
ment conceded) that the district court improperly calculated the
amount of loss attributable to Tri-State’s conduct and therefore sen-
tenced Tri-State based on an incorrect fine range. See id. at 319. The
fine range applied by the district court was $334,503.36 to
$669,006.72, while the proper range (according to Tri-State) was
$305,077.68 to $610,155.36. See id. at 319.

Reviewing this claim for plain error, we rejected Tri-State’s argu-
ment that our decision in United States v. Ford, 88 F.3d 1350 (4th
Cir. 1996), established that the imposition of a sentence under an
improper guideline range necessarily affects a defendant’s substantial
rights. See id. at 320.8 Further, we determined that Tri-State’s sub-
stantial rights were not affected because "[t]he district court imposed
a fine . . . that was almost exactly in the middle of the fine range used
by the district court," and that fine "would be only slightly above the
middle of the fine range as calculated by Tri-State." Id. at 320. We
therefore explained that "[t]here is nothing before us to indicate that
the outcome would be different, even if we accepted Tri-State’s posi-
tion on this issue." Id.

In Bros. Construction, there was unquestionably some risk that the
defendant received a higher fine as a result of the incorrect calculation
of the guideline range. Nevertheless, we did not presume prejudice
8
In Ford, we held that the defendant’s substantial rights were affected
by a plain error that resulted in a higher guideline range. See Ford, 88
F.3d at 1356. In Bros. Construction, however, we explained that the
substantial-rights holding of Ford was based on the particular facts of
that case—namely, that the district court, which had applied an incorrect
guideline range based on an erroneous increase in the defendant’s crimi-
nal history score and had sentenced the defendant at the bottom of that
higher range, "expressly noted that the sentence would have been at the
bottom of the sentencing range even if the defendant’s criminal history
had only been [in the lower category]." Bros. Constr., 219 F.3d at 320;
see Ford, 88 F.3d at 1355-56. Based on the difference between the low
ends of the two guideline ranges at issue in Ford, "the defendant would
[have] serve[d] a prison term three years longer than required under the
sentencing guidelines." Bros. Constr., 219 F.3d at 320; see Ford, 88 F.3d
at 1356 & n.5.
 UNITED STATES v. WHITE 17
but instead required the defendant to demonstrate actual prejudice
from the error. For the reasons already stated, the error of sentencing
a defendant under a mandatory guidelines regime presents an even
lower risk of prejudice than the error in Bros. Construction. We thus
conclude that a presumption of prejudice is inappropriate here. See
United States v. Gonzalez-Huerta, No. 04-2045, 2005 WL 807008, at
*5-*6 (10th Cir. Apr. 8, 2005) (en banc) (declining to presume preju-
dice from error of sentencing under mandatory guidelines regime);
United States v. Shelton, 400 F.3d 1325, 1332 n.8 (11th Cir. 2005)
(same); United States v. Antonakopoulos, 399 F.3d 68, 80 (1st Cir.
2005) (holding that defendant asserting error of sentencing under
mandatory regime cannot satisfy substantial rights prong of plain
error review merely by demonstrating that had he been sentenced
under the advisory regime, he "might have" received a less severe
sentence). But see United States v. Barnett, 398 F.3d 516, 527-29 (6th
Cir. 2005) (adopting rebuttable presumption of prejudice from sen-
tence imposed under the mandatory regime).

2.

We next consider whether the error of sentencing a defendant
under a mandatory guidelines regime falls within the other special
category of unpreserved errors noted in Olano—errors that may be
noticed "regardless of their effect on the outcome," Olano, 507 U.S.
at 735. We have recognized that this language refers to structural
errors. See David, 83 F.3d at 647; cf. Neder v. United States, 527 U.S.
1, 7 (1999) (stating that structural errors "require automatic reversal
(i.e., ‘affect substantial rights’) without regard to their effect on the
outcome"). Although "the vast majority of trial errors" are reviewed
for their prejudicial effect on the defendant, "structural errors are con-
clusively presumed to affect the substantial rights of the defendant
because they ‘deprive defendants of basic protections without which
a criminal trial cannot reliably serve its function as a vehicle for deter-
mination of guilt or innocence . . . and no criminal punishment may
be regarded as fundamentally fair.’" United States v. Higgs, 353 F.3d
281, 304 (4th Cir. 2003) (internal quotation marks omitted) (alteration
in original) (quoting Neder, 527 U.S. at 8-9), cert. denied, 125 S. Ct.
627 (2004). The Supreme Court has held particular errors to be struc-
tural "only in a very limited class of cases" in which there is "a defect
affecting the framework within which the trial proceed[ed], rather
18 UNITED STATES v. WHITE
than simply an error in the trial process itself." Neder, 527 U.S. at 8
(internal quotation marks omitted). Such defects include the complete
deprivation of counsel, a biased trial judge, racial discrimination in
the selection of a grand jury, denial of self-representation at trial,
denial of a public trial, and a defective reasonable doubt instruction.
See id. (collecting cases). We have cautioned that "judges should be
wary of prescribing new errors requiring automatic reversal" and that
"before a court adds a new error to the list of structural errors (and
thereby requires the reversal of every criminal conviction in which the
error occurs), the court must be certain that the error’s presence would
render every such trial unfair." Sherman v. Smith, 89 F.3d 1134, 1138
(4th Cir. 1996) (en banc); see Higgs, 353 F.3d at 305 (noting "the
[Supreme] Court’s reluctance to identify new structural errors").

We decline to classify the error of sentencing a defendant under the
pre-Booker mandatory guidelines regime as a structural error. Unlike
the errors that the Supreme Court has identified as structural, the
treatment of the guidelines as mandatory rather than advisory does not
deprive defendants of a "basic protection[ ]" without which the crimi-
nal process is inherently unfair, Neder, 527 U.S. at 8 (internal quota-
tion marks omitted); see id. at 7 (characterizing structural errors as
"intrinsically harmful"). A defendant has no inherent right to be sen-
tenced under an advisory guidelines regime. See Booker, 125 S. Ct.
at 758-59, 767-68 (concluding that Congress would have preferred to
eliminate mandatory nature of guidelines and preserve judicial fact-
finding rather than keeping mandatory regime and requiring jury fact-
finding); id. at 771 (Stevens, J., dissenting in part) (emphasizing that
"[n]either of the two Court opinions that decide these cases finds any
constitutional infirmity inherent in [the Sentencing Reform Act or the
guidelines]," and that the statutory provisions making the guidelines
mandatory are not "even arguably unconstitutional"). Rather, the for-
mer mandatory regime had constitutional implications only to the
extent that it required judges to impose sentences greater than autho-
rized by the jury’s verdict. See id. at 777 (Stevens, J., dissenting in
part) (explaining that although the statutory provisions making the
guidelines mandatory "can in certain cases, when combined with
other statutory and Guidelines provisions, result in a violation of the
Sixth Amendment, they are plainly constitutional on their faces");
Hughes, 401 F.3d at 553 n.11 (noting that "a mandatory guidelines
regime poses a constitutional problem only insofar as the guideline
 UNITED STATES v. WHITE 19
range involves extra-verdict enhancements"). Further, while Booker
emphasizes the importance of the Sixth Amendment right identified
in Apprendi, see Booker, 125 S. Ct. at 748-49, the application of the
advisory guidelines regime that Booker adopts as a remedy does not
depend on whether a defendant’s Sixth Amendment rights have actu-
ally been violated, see id. at 769; Hughes, 401 F.3d at 553. Moreover,
even if the remedy adopted in Booker were inextricably linked with
the underlying Sixth Amendment defects that Booker found present
in the mandatory guidelines regime, an Apprendi error itself is not
structural. See United States v. Carter, 300 F.3d 415, 428 (4th Cir.
2002) (per curiam); see also United States v. Perez-Ruiz, 353 F.3d 1,
17 (1st Cir. 2003) (collecting cases), cert. denied, 124 S. Ct. 2058
(2004).9
9
We note that in Sullivan v. Louisiana, 508 U.S. 275 (1993), the
Supreme Court held that a defective reasonable doubt instruction was a
structural error because, due to that instruction, the defendant received
"no jury verdict of guilty-beyond-a-reasonable doubt," and thus there
was "no object . . . upon which harmless-error scrutiny [could] operate."
Sullivan, 508 U.S. at 280 (emphasis omitted). By contrast, a defendant
sentenced under a mandatory guidelines regime has received a sentence
in accordance with the guidelines—which remain valid post-Booker—
and thus has not been wholly deprived of that to which he was entitled.
At most, such a defendant has been deprived of the chance to receive a
discretionary sentence (variance) outside the guideline range applied by
the district court. But, that was the very opportunity denied the defendant
in Bros. Construction, in which we held that the defendant failed to sat-
isfy the third prong of plain-error review because it could not show that
it was prejudiced by the denial of that opportunity. See Bros. Constr.,
219 F.3d at 320.
Sullivan also based its holding in part on the "necessarily unquantifi-
able and indeterminate" effect of the error. Sullivan, 508 U.S. at 282; see
United States v. Curbelo, 343 F.3d 273, 281 (4th Cir. 2003) (holding that
error of proceeding with fewer than 12 jurors absent the defendant’s con-
sent was structural error in part because effect of error was "‘necessarily
unquantifiable and indeterminate’" (quoting Sullivan, 508 U.S. at 282)).
The errors in Sullivan and Curbelo deprived the defendants of having the
issue of their guilt properly and fully decided by a jury, leading the
courts in those cases to conclude that the prejudicial effect of the errors
could never be reliably determined. See Sullivan, 508 U.S. at 281-82;
Curbelo, 343 F.3d at 281-82. Here, the error of sentencing a defendant
under a mandatory guidelines regime does not have an effect that is "nec-
essarily unquantifiable and indeterminate" because in some cases the
effect of this error will be apparent from the record. See Gonzalez-
Huerta, 2005 WL 807008, at *4; infra Part III.D.
20 UNITED STATES v. WHITE
3.

Because we have concluded that the error of sentencing a defen-
dant under a mandatory guidelines regime is neither presumptively
prejudicial nor structural, we must determine whether White can dem-
onstrate actual prejudice. See Olano, 507 U.S. at 735, 737. To do so,
White must show that the error of sentencing him under a mandatory
guidelines regime "affected the outcome of the district court proceed-
ings." Id. at 734; accord United States v. Dominguez Benitez, 124 S.
Ct. 2333, 2339 (2004) (explaining that if an error is not structural, "re-
lief . . . is tied in some way to prejudicial effect, and the standard
phrased as ‘error that affects substantial rights,’ used in Rule 52, has
previously been taken to mean error with a prejudicial effect on the
outcome of a judicial proceeding").

The substantial rights inquiry conducted under Rule 52(b) is the
same as that conducted for harmless error under Rule 52(a), with the
important difference that the burden rests on the defendant, rather
than the government, to prove that the error affected substantial
rights. See Olano, 507 U.S. at 734-35; United States v. Williams, 81
F.3d 1321, 1326 (4th Cir. 1996) (noting that on plain error review,
"the question whether a forfeited plain error was actually prejudicial
is essentially the same as the question whether nonforfeited error was
harmless—the difference being only in the party who has the burden
on appeal to show the error’s effect"). Our prejudice inquiry, there-
fore, is governed by the standard set forth by the Supreme Court in
Kotteakos v. United States, 328 U.S. 750, 765 (1946), i.e., whether
"after pondering all that happened without stripping the erroneous
action from the whole, . . . the judgment was . . . substantially swayed
by the error."10 See Williams, 81 F.3d at 1326.

We conclude that White has not met his burden of demonstrating
10
As we emphasized in Hughes, the relevant inquiry under Kotteakos
is not what sentence the district court might impose in an error-free pro-
ceeding on remand, but instead whether the error that occurred affected
the sentence that was actually imposed. See Hughes, 401 F.3d at 551
(explaining that "the proper focus [of the prejudice inquiry] is on what
actually happened as a result of the error, not what might happen in a
subsequent proceeding on remand").
 UNITED STATES v. WHITE 21
that he suffered actual prejudice from being sentenced under a manda-
tory guidelines regime. Although White received a sentence at the
bottom of the applicable guideline range, the record as a whole pro-
vides no nonspeculative basis for concluding that the treatment of the
guidelines as mandatory "affect[ed] the district court’s selection of the
sentence imposed." Williams v. United States, 503 U.S. 193, 203
(1992). The district court made no statements at sentencing indicating
that it wished to sentence White below the guideline range but that
the guidelines prevented it from doing so. In addition, the district
court made certain statements suggesting that it was content to sen-
tence White within the guideline range. For example, in rejecting
White’s argument that he should receive a reduction in his offense
level for being a low-level participant in the conspiracy, the district
court noted that White had received no upward adjustments for his
role in the offense and that "the guidelines, therefore, properly com-
prehend his low-level participation." J.A. 809. Further, while the
court acknowledged that White would have received a considerably
lower sentence for a comparable offense in state court, it noted that
the higher federal sentence "reflect[s] a reasoned judgment on the part
of the Congress of the United States that drug trafficking represents
a threat that has to be dealt with harshly." Id. at 814-15.

D.

In sum, the error of sentencing White under a mandatory guidelines
regime does not warrant a presumption of prejudice, nor is it struc-
tural. And, White cannot demonstrate that he suffered actual prejudice
from being sentenced under a mandatory regime. We therefore must
conclude that this error did not affect White’s substantial rights. See
Olano, 507 U.S. at 735, 737. Because White cannot satisfy the third
prong of plain-error review under Olano, we do not reach the fourth
prong—whether the error "seriously affects the fairness, integrity or
public reputation of judicial proceedings," id. at 732 (alteration &
internal quotation marks omitted).11
11
Our reasoning in Hughes—in which we elected to notice a prejudi-
cial Sixth Amendment error of imposing a sentence exceeding the maxi-
mum authorized by the jury verdict alone—does not compel a different
result. In analyzing the fourth plain-error prong in Hughes, we noted that
22 UNITED STATES v. WHITE
We recognize that our holding today will require defendants who
argue for the first time on appeal that they were erroneously sen-
tenced under the pre-Booker mandatory guidelines regime to demon-
strate, based on the record, that the treatment of the guidelines as
mandatory caused the district court to impose a longer sentence than
it otherwise would have imposed. This requirement, however, does
not place on defendants a burden more severe than that placed on
defendants alleging other types of unpreserved errors. In some cases,

"[t]he record does not provide any indication of what sentence the district
court would have imposed had it exercised its discretion under § 3553(a),
treating the guidelines as merely advisory" and that the possibility that
Hughes might receive the same sentence on remand was "not enough to
dissuade us from noticing the error." Hughes, 401 F.3d at 556. However,
our discussion of this point in Hughes was offered merely as further sup-
port for noticing a Sixth Amendment error that we had already deter-
mined to be prejudicial, see id. at 548-49. Indeed, the focus of our fourth
prong inquiry was on this prejudicial effect: "As a result of a plain and
prejudicial Sixth Amendment error, Hughes was sentenced to a term of
imprisonment nearly four times as long as the maximum sentence autho-
rized by the jury verdict." Id. at 555. In light of this substantial increase
in Hughes’ sentence, we concluded that "[t]here can be no doubt that
failure to notice such an error would seriously affect the fairness, integ-
rity, or public reputation of judicial proceedings." Id. By contrast, for the
reasons already given, we cannot conclude that White’s substantial rights
were affected by the error of sentencing him under a mandatory guide-
lines regime, cf. id. at 553 (recognizing that the error of sentencing under
a mandatory regime is "distinct from [a] Sixth Amendment claim"),
much less that the degree of difference would be sufficient to compel us
to notice the error.
 UNITED STATES v. WHITE 23
statements by the district court may indicate that the treatment of the
guidelines as mandatory prevented the court from imposing a lesser
sentence. See, e.g., United States v. MacKinnon, 401 F.3d 8, 10-11
(1st Cir. 2005) (holding that unpreserved error of sentencing under
mandatory regime warranted remand because district court, upon
imposing sentence at bottom of guideline range, stated that sentence
was "unjust, excessive and obscene" (internal quotation marks omit-
ted)); Shelton, 400 F.3d at 1328, 1332-33 (holding that defendant was
prejudiced by unpreserved error of sentencing under mandatory
regime because district court stated that sentence imposed at bottom
of guideline range was "more than appropriate" (internal quotation
marks omitted)); Antonakopoulos, 399 F.3d at 81 (collecting cases in
which district courts expressed discontent with sentences mandated
by guidelines and noting that "[w]here the district judge has said as
much about a Guidelines sentence, that is a powerful argument for
remand"). In other cases, the record will show that the treatment of
the guidelines as mandatory did not result in an increased sentence.
See Antonakopoulos, 399 F.3d at 81 (noting that remand is unlikely
"if the district judge has said at sentencing that he would have reached
the same result regardless of the mandatory nature of the Guide-
lines"); see also United States v. Sayre, 400 F.3d 599, 600-01 (8th
Cir. 2005) (holding that error of sentencing under mandatory regime
did not affect defendant’s substantial rights because, in light of
upward departure, district court "clearly imposed the sentence it felt
appropriate on these facts," and therefore treatment of guidelines as
mandatory "did not affect [defendant’s] ultimate sentence"). And, in
many cases—such as White’s—the record will provide no nonspecu-
lative basis for either conclusion, and therefore the defendant will not
be able to satisfy the substantial rights prong of Olano. See Jones, 527
U.S. at 394-95 ("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."); Hastings, 134 F.3d at 243 (empha-
sizing that it is not sufficient for a defendant on plain error review to
show that "it is impossible to tell whether" the error actually affected
the outcome of the proceeding). That a defendant often will be unable
to demonstrate prejudice is not unique to this type of error; rather, it
is a function of the plain-error standard, which places the burden on
the defendant to show prejudice when he has not preserved error in
the district court. See Olano, 507 U.S. at 734 (explaining that placing
the burden of showing prejudice on the defendant rather than the gov-
24 UNITED STATES v. WHITE
ernment is an "important difference" between plain-error and
harmless-error review); see also Booker, 125 S. Ct. at 769 (expressing
the view that not "every appeal will lead to a new sentencing hearing"
because appellate courts will "apply ordinary prudential doctrines,
determining, for example, whether the issue was raised below and
whether it fails the ‘plain-error’ test").

IV.

For the reasons set forth above, we affirm White’s convictions and
sentence.

AFFIRMED

DUNCAN, Circuit Judge, concurring in part and dissenting in part:

I thank Chief Judge Wilkins for his fine opinion, and appreciate the
difficulty of the issues this and other courts are grappling with in the
wake of the Supreme Court’s decision in United States v. Booker, ___
U.S. ___, 125 S. Ct. 738 (2005). However, I am troubled by the
majority’s reliance on a distinction between the two manifestations of
error discussed in Booker which the Supreme Court ultimately does
not accept.1 Because I believe that the Remedial Opinion in Booker
does not recognize that distinction, and the majority opinion fails to
clearly articulate another, I respectfully dissent from Part III.2 The
Error Opinion of Booker makes clear that in the wake of Blakely,
1
I refer, of course, to the distinction between the error of treating the
Guidelines as mandatory in which a judge finds facts that increase the
defendant’s sentence and the error of treating the Guidelines as manda-
tory in which judicial fact finding does not occur. Referring to the former
as "Sixth Amendment error," a prior decision of this court notes: "after
Booker, there are two potential errors in a sentence imposed pursuant to
the pre-Booker mandatory guidelines regime: a Sixth Amendment error,
which Hughes raised, and an error in failing to treat the guidelines as
advisory, which Hughes does not raise." United States v. Hughes, 401
F.3d 540, 552 (4th Cir. 2005).
2
I use the term "Remedial Opinion" to refer to the portion of the opin-
ion authored by Justice Breyer, and the "Error Opinion" to refer to that
authored by Justice Stevens.
 UNITED STATES v. WHITE 25
defendants sentenced in federal court had a viable constitutional chal-
lenge to their sentences under the Sixth Amendment if the judge
found facts that increased their sentence beyond that authorized by the
jury’s verdict alone. However, the Supreme Court declined to remedy
the constitutional deficiency in purely Sixth Amendment terms.
Instead of engrafting onto the existing system the Sixth Amendment
jury trial requirement, as might have appeared to be the remedy sug-
gested by the parameters of the error, the Remedial Opinion chose to
strike 18 U.S.C. § 3553(b)(1) which makes the Guidelines mandatory.
In adopting this remedy, the Supreme Court emphasized what it had
also made clear in defining the error: that "the existence of
§ 3553(b)(1) is a necessary condition of the constitutional violation."
Booker, ___ U.S. at ___, 125 S. Ct. at 764. In so doing, and in reject-
ing the argument of the United States that the advisory Guidelines
regime be limited to "any case in which the Constitution prohibits
judicial fact finding," the Court created a broader category of defen-
dants eligible for resentencing than those for whom judicial fact find-
ing increased their sentence. Id.

Following Booker, this court has decided that one segment of the
total class of defendants authorized to seek resentencing can meet the
stringent requirements of showing plain error and are therefore enti-
tled to resentencing. In United States v. Hughes, 401 F.3d 540 (4th
Cir. 2005), we held that defendants whose maximum sentences as
authorized by the jury were less than that imposed by the judge based
on facts found pursuant to the mandatory sentencing regime demon-
strate prejudice. Id. at 548-89. Hughes specifically and appropriately
states that it does not purport to address the issue of whether defen-
dants sentenced under a mandatory regime could satisfy the plain
error standard, as that issue was not before the court. Id. at 551 n.8.
Significantly, however, we also noted that the record in Hughes did
not provide "any indication of what sentence the district court would
have imposed had it exercised its discretion under § 3553(a), treating
the guidelines as merely advisory." Id. at 556. In determining whether
the district court error warranted reversal, the court acknowledged
that "[w]e simply do not know how the district court would have sen-
tenced Hughes had it been operating under the remedial scheme
announced in Booker." Id. at 556 n.14.
26 UNITED STATES v. WHITE
Although the error initially presented in Booker arose under the
Sixth Amendment, the remedy provided was both broader and crafted
to address its condition precedent—the mandatory character of the
Guidelines. The distinction the majority creates here in my view fails
to adequately reflect or address that underlying error, or the fact that
Booker creates one class of defendants going forward. Because of
that, I am unable to accept the majority’s rationale for treating
White’s claim differently from Hughes’s. Because Hughes concluded
that one group of defendants sentenced under the now invalid
§ 3553(b)(1) must be resentenced, and I am unpersuaded by the
majority’s basis for distinguishing the remaining defendants, I am
compelled to conclude that the latter subset, including White, must be
remanded for resentencing as well.3 See United States v. Ruhe, 191
F.3d 376, 388 (4th Cir. 1999) (noting panels of this court are "bound
by prior precedent from other panels in this circuit absent contrary
law from an en banc or Supreme Court decision").
3
This, of course, would also be consistent with the Supreme Court’s
treatment of Booker and the companion case, Fanfan, in which there was
no judicial fact finding.