United States v. Hunt

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-30334
Plaintiff-Appellee, D.C. No.
v.  3:04-cr-00026-
STACY HUNT, RRB-1
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding

Argued and Submitted
December 1, 2010—Seattle, Washington

Filed September 1, 2011

Before: Robert R. Beezer, Diarmuid F. O’Scannlain, and
Richard A. Paez, Circuit Judges.

Opinion by Judge Paez;
Dissent by Judge O’Scannlain

16649
16652 UNITED STATES v. HUNT

COUNSEL

Allison E. Mendel, Mendel & Associates, Anchorage Alaska,
for the appellant.

Andrea T. Steward, Assistant United States Attorney, Anchor-
age, Alaska, for the appellee.

OPINION

PAEZ, Circuit Judge:

The district court sentenced Appellant Stacy Hunt to 180
months in prison after he pled guilty to attempting to possess
a controlled substance with the intent to distribute in violation
of 21 U.S.C. §§ 841(a), 846. Hunt appeals his sentence but
not his conviction. He alleges that the district court erred
under Apprendi v. New Jersey, 530 U.S. 466 (2000), by sen-
tencing him for attempted possession with intent to distribute
an unspecified amount of cocaine even though he never
admitted that he attempted to possess cocaine. We conclude
that the district court erred under Apprendi and that the error
was not harmless. Accordingly, we reverse and remand for
resentencing.1
1
Hunt also argues that the district court violated Federal Rule of Crimi-
nal Procedure 32, that the court committed procedural error in its fact-
finding, and that his sentence was substantively unreasonable. Because we
vacate the sentence and remand for resentencing due to the Apprendi error,
we do not address Hunt’s other arguments.
 UNITED STATES v. HUNT 16653
I. Background

Acting on a tip, police intercepted a suspicious Federal
Express package at the airport in Anchorage, Alaska, on Janu-
ary 26, 2004. The police brought in a drug-sniffing dog that
alerted to the package. After obtaining a search warrant, the
police opened the package and discovered it contained
approximately one kilogram of cocaine hidden in candles.
The police removed most of the cocaine and resealed the
package with a nominal amount of the drug inside.

A few days later, an undercover officer delivered the pack-
age to an apartment in Anchorage. A woman signed for the
package, and police investigators conducting surveillance
watched her put it in the trunk of a car. Sometime later, the
investigators observed Stacy Hunt take the package from the
car and carry it towards the apartment. Shortly thereafter,
Hunt left in a white Ford Explorer driven by another man.

While several officers followed the Ford Explorer, others
searched the apartment and spoke to the woman who signed
for the package. She told police that she had agreed to receive
the package for a man named “Sterling,” who paid her
approximately $400 for accepting delivery of three separate
packages. She claimed she did not know what was inside the
package.

The officers tailing the Explorer conducted a traffic stop
and saw the Federal Express package inside the vehicle. They
arrested the driver and Hunt, who carried Oregon identifica-
tion with the name “Mario McCoy.” The police interrogated
the driver, who told them that he had driven Hunt, whom he
knew as “Buddy Walker,” to pick up a package on two occa-
sions. He also told them that Hunt had given him five or six
thousand dollars to deposit into a checking account in order
to obtain a cashier’s check.

With Hunt’s counsel present, the police interviewed Hunt
as well. Still using the name Mario McCoy, Hunt signed a
16654 UNITED STATES v. HUNT
written statement detailing the drug transaction. Hunt wrote
that he had ordered drugs from a person in California. He
wrote that the person who received the package was supposed
to be paid $400 and that a “package of 1 kilo of coke was to
be put in a burgundy Mercedes S.U.V.” parked outside a res-
taurant. Immediately below Hunt’s statement, his lawyer
wrote that Hunt would cooperate with the government if the
government allowed the case to proceed in state court, rather
than federal court. Hunt was released. His lawyer, however,
lost contact with him.

On February 17, 2004, a federal grand jury indicted Hunt,
alleging that he “did knowingly and intentionally attempt to
possess with intent to distribute a controlled substance, to wit:
500 grams or more of a mixture and substance containing
cocaine” in violation of 21 U.S.C. §§ 846, 841(b)(1)(A). On
December 13, 2007, Hunt was arrested in California, and offi-
cers learned that he was the subject of a federal arrest warrant.
Hunt was taken to Alaska to face the federal drug distribution
charges.

Hunt ultimately decided to plead guilty without a plea
agreement. At the change of plea hearing, there were several
references to Hunt’s attempt to possess cocaine. First, in
response to the court’s inquiry regarding the elements of the
offense, the Assistant United States Attorney (AUSA) stated
that the government would need to prove at trial that Hunt
“attempted to possess a parcel that contained a little over a
kilogram of cocaine . . . and that he did so knowingly.” Hunt
stated that he understood those elements. After a few
moments passed, the AUSA stated that he forgot to include
the element that “Mr. Hunt attempted to possess that cocaine
with the intent to distribute it thereafter.” Hunt responded that
he understood that additional element.

The court then restated the elements of the offense as fol-
lows: “So you attempted to possess cocaine, you knew it was
cocaine or some illegal drug, and you did it with the intent to
 UNITED STATES v. HUNT 16655
distribute. I guess those are the three elements, okay?”
(emphasis added). Hunt replied, “To those elements, yes, I
agree.” Hunt then asked that the government state the ele-
ments one last time. The AUSA responded that the govern-
ment would have to prove that “Mr. Hunt attempted to
possess a parcel which contained a little over a kilogram of
cocaine [and] . . . [w]e’d have to prove that Mr. Hunt’s
attempt to possess that cocaine was done knowingly and then
we’d have to prove that he intended to distribute that cocaine
after coming into possession of it.” Hunt replied, “Yes I
understand those elements. As far as the specific amount, I
don’t have personal knowledge of it . . . as I never opened the
package and weighed it, but I do accept responsibility for
whatever it was.”

After the government stated the facts it expected to prove
if the case were to proceed to trial—including that Hunt was
found in possession of a package of over 500 grams of
cocaine and later admitted that he had ordered the drugs in a
written statement—Hunt said, “For the most part, the facts are
true. I admit all the elements of 841(a)(1), and also as I said,
I did not receive the package and open it, so I have no specific
knowledge of what it contained other than it did contain a
controlled substance, that I do know, and I did attempt to pos-
sess that controlled substance.” Hunt also confirmed that he
had intended to sell or give away the controlled substance.
The court then asked the government, “That sounds sufficient,
doesn’t it, counsel?” The AUSA agreed that Hunt’s admission
was sufficient to supply a factual basis for the offense, and the
court accepted Hunt’s plea.

Hunt’s sentencing hearing stretched out over a number of
months because of several controversies. First, Hunt argued
that he should not be sentenced under 21 U.S.C.
§ 841(b)(1)(A), the penalty provision for possession with
intent to distribute more than 500 grams of cocaine, because
he did not admit to a specific amount of drugs during the
change of plea hearing. After both parties filed several com-
16656 UNITED STATES v. HUNT
peting motions on the issue, the court decided, “in an abun-
dance of caution, giving defendant every benefit of the
doubt,” that it would accept Hunt’s argument and sentence
him as if he had attempted to possess an unspecified amount
of cocaine under 21 U.S.C. § 841(b)(1)(C).

In the sentencing memoranda contesting the applicability of
section 841(b)(1)(A), Hunt never raised the issue of whether
he had admitted at the plea colloquy that he attempted to pos-
sess cocaine. When the court heard oral argument on Hunt’s
objections to the presentence report at the initial sentencing
hearing, however, Hunt expressly denied that he had admitted
to attempting to possess cocaine when he and the court
engaged in the following exchange:

HUNT: Also, when I made my objections, which
has been overlooked, I also objected on the
grounds that I did not at plea colloquy
admit to a specific type of controlled sub-
stance, and I only agreed that I attempted
to possess a controlled substance.

THE COURT: Right.

HUNT: Not crack, cocaine, or marijuana, or any-
thing like that. I only agree to a Schedule
II — not even a Schedule II. I only agree
to a controlled substance. So are you also
making a finding for the type of drug also?

THE COURT: Yes, okay.

HUNT: So I’d like to make sure that my (indis-
cernible) objection is in for not just quan-
tity but also as to type of drugs. And my
position is that I should fall back to mari-
juana for no remuneration, with a statutory
max of five years, up — under (b)(1)(D).
 UNITED STATES v. HUNT 16657
THE COURT: Very well. Boy, you’re smart.
You’ve made your record, but I —
you haven’t changed my mind.

HUNT: Okay, that’s fine.

At a subsequent sentencing hearing, the government called
Detective Elizer Feliciano of the Anchorage Police Depart-
ment. Detective Feliciano was present when Hunt signed the
statement in which he admitted to ordering and receiving
drugs from California. Through the detective’s testimony, the
government introduced a Drug Enforcement Agency labora-
tory report showing that the substance in the Federal Express
package was 1,102 grams of a mixture containing cocaine.
Further analysis showed that the mixture was 72 percent pure
cocaine.

The detective testified that, in his training and experience,
a person receiving a large quantity of cocaine, such as a kilo-
gram, would specify the amount he wished to purchase and
would agree on a price with the seller. He estimated that the
cocaine Hunt received was worth approximately $25,000.

On cross-examination, Detective Feliciano testified that the
type and amount of drugs contained in the Federal Express
package were known to the police before Hunt gave his state-
ment, and that the police likely communicated this informa-
tion to Hunt’s attorney before the interview took place. He
also confirmed that the interview occurred after Hunt and the
government had entered into a cooperation agreement contin-
gent upon Hunt’s ability to provide reliable information.

On the basis of Detective Feliciano’s testimony, the court
found that Hunt was responsible for more than 500 grams of
cocaine for the purpose of calculating Hunt’s applicable advi-
sory sentencing guidelines range. Pursuant to the United
States Sentencing Guidelines § 2D1.1(c)(7), the court deter-
mined that Hunt’s base offense level was 26. To this level, the
16658 UNITED STATES v. HUNT
court applied a two point enhancement for obstruction of jus-
tice as a result of Hunt absconding after his arrest, see id. at
§ 3C1.1, and a two point reduction for acceptance of responsi-
bility, see id. at § 3E1.1(a), resulting in a final offense level
of 26.

Next, the parties agreed that Hunt’s criminal history score
was a Category IV. Based on Hunt’s lengthy criminal history,
the court departed upward to a criminal history score of VI,
which yielded an advisory guidelines range of 120 to 150
months. After considering the 18 U.S.C. § 3553(a) sentencing
factors, the court determined that a further upward variance
was warranted. The court ultimately sentenced Hunt to 180
months, or 15 years, in prison.

II. Standard of Review

We review de novo a claim that a sentence violates a defen-
dant’s constitutional rights. United States v. Raygosa-
Esparza, 566 F.3d 852, 854 (9th Cir. 2009). Apprendi errors
are reviewed under the harmless error standard applied in
Neder v. United States, 527 U.S. 1 (1999). See United States
v. Zepeda-Martinez, 470 F.3d 909, 913 (9th Cir. 2006) (hold-
ing that error under Apprendi is harmless if the court finds
beyond a reasonable doubt that the result would have been the
same absent the error).

III. Discussion

A. Apprendi Error

[1] “Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statu-
tory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. In
United States v. Buckland, we explained that “[w]e honor the
intent of Congress and the requirements of due process by
treating drug quantity and type, which fix the maximum sen-
 UNITED STATES v. HUNT 16659
tence for a conviction, as we would any other material fact in
a criminal prosecution: it must be charged in the indictment,
submitted to the jury, subject to the rules of evidence, and
proved beyond a reasonable doubt.” 289 F.3d 558, 568 (9th
Cir. 2002) (en banc) (emphasis added); see also United States
v. Thomas, 355 F.3d 1191, 1195 (9th Cir. 2004) (“[D]rug type
and quantity . . . are material facts that must be submitted to
the jury and proved beyond a reasonable doubt.”).

[2] When a conviction is obtained through a guilty plea
rather than a jury verdict, “[t]he government has the burden
‘at the plea colloquy to seek an explicit admission of any
unlawful conduct it seeks to attribute to the defendant.’ ”
Thomas, 355 F.3d at 1199 (quoting United States v. Cazares,
121 F.3d 1241, 1248 (9th Cir. 1997)). A guilty plea consti-
tutes an admission to the formal elements of an offense. See
Cazares, 121 F.3d at 1246 (citing McCarthy v. United States,
394 U.S. 459, 466 (1969)). We have held, however, that drug
quantity and type are not formal elements of the offenses set
out in 21 U.S.C. § 841. Thomas, 355 F.3d at 1195. Therefore,
even though due process requires that drug type be charged in
the indictment and proved beyond a reasonable doubt, a
defendant can plead guilty to 21 U.S.C. § 841(a)2 without
admitting the type of drug. See id. at 1198.

Here, Hunt purportedly pled guilty to attempted possession
with the intent to distribute a controlled substance in violation
2
21 U.S.C. § 841(a) reads:
(a) Unlawful acts
Except as authorized by this subchapter, it shall be unlawful
for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled
substance; or
(2) to create, distribute, or dispense, or possess with intent
to distribute or dispense, a counterfeit substance.
16660 UNITED STATES v. HUNT
of 21 U.S.C. §§ 841(a) and 846. The elements of the offense
are (1) that the defendant intended to possess a controlled sub-
stance with the intent to distribute it to another person, and (2)
that the defendant did something that was a substantial step
toward committing the crime. See Ninth Cir. Model Jury Instr.
9.17. Hunt expressly admitted that he intended to possess a
controlled substance and that he intended to distribute the
controlled substance, and he does not appeal his conviction
for this generic offense.

In light of the colloquy at the change of plea hearing, how-
ever, we conclude that Hunt did not admit that he intended to
possess an unspecified amount of cocaine under section
841(b)(1)(C). We note first that Hunt was informed of incor-
rect and inconsistent statements of the elements of the offense
and the heightened sentencing provisions for drug type. The
government erroneously stated twice that it was required to
prove beyond a reasonable doubt that Hunt “knowingly”
attempted to possess cocaine. While knowing possession is an
element of the completed offense of possession with intent to
distribute, Ninth Cir. Model Jury Instr. 9.15; see, e.g., United
States v. Orduno-Aguilera, 183 F.3d 1138, 1140 (9th Cir.
1999), attempted possession requires proof of intent, not
knowledge. The district court correctly informed Hunt that the
government needed to prove that he intended to possess
cocaine, but incorrectly stated that the government could meet
its burden by proving that Hunt intended to possess cocaine
“or some other controlled substance.”

[3] Nowhere in the record did either the government or the
court inform Hunt that a conviction for attempted possession
with intent to distribute cocaine under section 841(b) requires
proof beyond a reasonable doubt that the defendant intended
to possess cocaine. Quick reference to the Ninth Circuit’s
model jury instructions would likely have avoided this error.
Jury Instruction 9.17 plainly emphasizes drug type in the first
element of the offense when it states that the government
must prove that “the defendant intended to possess [specify
 UNITED STATES v. HUNT 16661
controlled substance] . . .” (emphasis in original). At Hunt’s
change of plea hearing, however, neither the government nor
the court ever unequivocally informed Hunt that the govern-
ment would be required to prove that Hunt intended to pos-
sess cocaine in addition to the other elements of the offense.

[4] Notably, after the government summarized the facts
that it intended to prove if the case were to proceed to trial,
Hunt expressly denied knowledge of the contents of the pack-
age and stated that he did not know what it contained because
he never opened it and looked inside. Hunt informed the court
that he admitted only the elements of 21 U.S.C. § 841(a),
which conspicuously does not specify the type (or amount) of
controlled substance. In short, at no time during the plea col-
loquy did Hunt expressly admit to facts that would establish
that the drug he attempted to possess was cocaine.

[5] Because Hunt did not admit that he attempted to pos-
sess cocaine, and because the government did not prove that
fact to a jury beyond a reasonable doubt, that fact could not
be used to support an increase in the maximum statutory sen-
tence Hunt faced. Section 841(b) contains numerous penalty
provisions that correspond to various types and amounts of
drugs. The penalties range from a maximum of one year in
prison to a maximum of life in prison. See, e.g., 18 U.S.C.
§ 841(b)(3) (maximum of one year for schedule V substance);
§ 841 (b)(1)(D) (maximum of five years for less than 50 kilo-
grams of marijuana); § 841(b)(1)(B) (maximum of 40 years
for more than 500 grams of cocaine or a maximum of life in
prison where death or serious injury results from the use of
the drug). The district court sentenced Hunt under section
841(b)(1)(C) for possession with intent to distribute an
unspecified amount of cocaine, exposing Hunt to a maximum
sentence of 20 years in prison. The district court erred under
Apprendi in sentencing Hunt under section 841(b)(1)(C)
because his maximum penalty increased from one year to 20
years in prison based on a fact—Hunt’s possession of cocaine
16662 UNITED STATES v. HUNT
—that Hunt never admitted and the government never proved
beyond a reasonable doubt to a jury.

B. Harmless Error

[6] Our finding of constitutional error does not end our
inquiry, however, because we must review Apprendi errors
for harmlessness. See United States v. Zepeda-Martinez, 470
F.3d 909, 913 (9th Cir. 2006). In assessing harmlessness, we
review the entire record to assist us in determining what evi-
dence the parties would have presented had the drug-type
issue been fully litigated at a jury trial. Id. at 913, n.3. The
record is therefore a guide to determining what the evidence
would have established if the case had proceeded to trial; it
is not a substitute for a trial, and there need only be evidence
sufficient to support a contrary finding to show that the error
was not harmless. See Neder, 527 U.S. at 19. Thus, an
Apprendi error is harmless only “where the record contains
‘overwhelming’ and ‘uncontroverted’ evidence supporting an
element of the crime.” Id. (quoting Neder, 527 U.S. at 17-18).
An Apprendi error is not harmless if “ ‘the defendant con-
tested the omitted element and raised evidence sufficient to
support a contrary finding.’ ” Id. (quoting Neder, 527 U.S. at
19).

Here, in arguing that the Apprendi error was harmless, the
government relies principally on our decision in United States
v. Zepeda-Martinez, 470 F.3d 909 (9th Cir. 2006). In Zepeda-
Martinez, we held that an Apprendi error was harmless upon
reviewing the sentence of a defendant who was convicted of
being a removed alien found in the United States in violation
of 8 U.S.C. § 1326. Id. at 912-13. In that case, Zepeda-
Martinez was subjected to an enhanced sentence because at
sentencing the court found that he had been removed from the
United States after having committed a crime of violence. Id.
at 911. The court based its finding on a California record of
conviction dated May 21, 2002, and a warrant of removal
showing that Zepeda-Martinez was ordered removed on June
 UNITED STATES v. HUNT 16663
8, 2004. Id. at 912. We concluded that the district court erred
under Apprendi by basing the sentence in part on the date of
the prior removal, a fact which was never admitted by
Zepeda-Martinez during his guilty plea nor proven to a jury
beyond a reasonable doubt. Id. at 912-13.

We held that the Apprendi error was harmless, however,
because the record at sentencing contained overwhelming evi-
dence of the date of the prior removal. Id. at 913. The govern-
ment introduced the warrant of removal, an official
government document which bore Zepeda-Martinez’s name,
signature and fingerprint as well as the name, title and signa-
ture of the immigration officer who witnessed the removal. Id.
Significantly, Zepeda-Martinez did not contest the presen-
tence report’s allegation that he had been removed in 2004
nor the authenticity of the warrant of removal. Id.; see also
United States v. Hollis, 490 F.3d 1149, 1157 (9th Cir. 2007)
(holding that Apprendi error was harmless where several wit-
nesses testified at trial without contradiction that defendant
had possessed and sold crack cocaine and defendant did not
contest the evidence of drug type at trial, in his objections to
the presentence report, or at sentencing). We were thus “satis-
fied beyond a reasonable doubt that . . . the result ‘would have
been the same absent the [Apprendi] error.’ ” Zepeda-
Martinez, 470 F.3d at 913 (quoting Neder, 527 U.S. at 19).

Hunt’s case contrasts sharply with Zepeda-Martinez. Here,
the record does not contain overwhelming evidence that Hunt
attempted to possess cocaine. First, the contested fact in this
case is Hunt’s intent, a fact that is not subject to easy proof
like the date of prior removal in Zepeda-Marinez, a fact which
was proved through uncontroverted documentary evidence.
Here, the government presented no evidence that Hunt looked
inside the package to verify its contents, and neither the cir-
cumstantial evidence surrounding the offense nor Detective
Feliciano’s opinions convince us beyond a reasonable doubt
that a jury would have found Hunt intended to receive cocaine.3
3
We do not hold, as the dissent suggests, that circumstantial evidence
is not sufficient to prove intent. We conclude only that the circumstantial
16664 UNITED STATES v. HUNT
See Neder, 527 U.S. at 18 (“Is it clear beyond a reasonable
doubt that a rational jury would have found the defendant
guilty absent the error?”).

The government’s strongest evidence is undoubtedly
Hunt’s post-arrest signed statement where he wrote “package
of 1 kilo of coke was to be put in burgundy Mercedes S.U.V.”
At the evidentiary hearing, however, Hunt presented non-
frivolous arguments contesting the reliability of the statement.
After Detective Feliciano conceded that information regarding
the drug delivery was likely passed on to Hunt’s attorney in
preparation for Hunt’s interview with the police, Hunt argued
that he only learned of the contents of the package through his
lawyer. Hunt also stated that he signed the statement only in
exchange for a cooperation agreement with the government
and that the signed statement reflected an affirmation of what
the police wanted to hear, not his personal knowledge. On this
record, we conclude that the evidence is not so overwhelming
that a jury would necessarily find beyond a reasonable doubt
that Hunt intended to possess cocaine.

[7] We also conclude that the constitutional error in this
case was not harmless because Hunt, unlike the defendant in
Zepeda-Martinez, expressly contested the facts at issue and
pointed to “evidence sufficient to support a contrary finding”
Neder, 527 U.S. at 19. Although the Supreme Court in Neder
did not expressly define what quantum of evidence is “suffi-
cient to support a contrary finding,” in light of the available
record evidence, Hunt’s denial of his intent in this case meets

evidence on the record in this case is insufficient for the government to
meet its burden upon harmless error review, even when coupled with
Detective Feliciano’s opinions on the drug trade and Hunt’s signed state-
ment. This reflects our assessment of the weight of the evidence, not a
criticism of the inherent quality of circumstantial evidence. Although we
recognize that the government’s evidence could convince a jury of Hunt’s
guilt, we are not convinced beyond a reasonable doubt that a jury would
do so. See Neder, 527 U.S. at 18.
 UNITED STATES v. HUNT 16665
that standard. Here, as noted above, Hunt denied knowledge
of the type of drug in the package twice—once at the change
of plea hearing and a second time at a sentencing hearing. He
also contested the reliability of the signed statement and the
opinions of Detective Feliciano. If Hunt were to testify at trial
consistent with these facts, his testimony, if credited, would
raise a reasonable doubt as to his intent. We cannot conclude
beyond a reasonable doubt that a rational jury would not find
Hunt credible, especially where Hunt has never had the
opportunity to testify.

Moreover, Hunt had no reason to continue litigating the
drug-type issue during the course of the several sentencing
hearings because the court had ruled at the initial sentencing
hearing that Hunt had admitted to attempting to possess
cocaine at the change of plea hearing. We faced a similar situ-
ation in United States v. Jordan, where a defendant was sen-
tenced based on a court’s finding of drug quantity that was
neither alleged in the indictment nor submitted to the jury.
291 F.3d 1091 (9th Cir. 2002). In concluding that there was
error under Apprendi that was not harmless, we said:

because Jordan had no notice from the indictment
that quantity would be an issue at trial, we would
need to determine whether Jordan might have con-
tested quantity and what evidence Jordan might have
presented. Finally, to affirm the sentence, we would
need to be able to say beyond any reasonable doubt
that a jury, considering the actual evidence at trial
and perhaps other evidence that was never presented,
would have convicted Jordan of the higher-quantity
offense.

...

Here . . . there are too many unknowns to be able to
say with any confidence, let alone beyond reasonable
doubt, that the error was harmless. What evidence
16666 UNITED STATES v. HUNT
might have been proffered by Jordan, in a defensive
effort to minimize quantity, if the indictment had
properly charged the quantity involved in the
offense, is entirely speculative.

Id. at 1096-97. Similarly, the plea and sentencing proceedings
in this case provide an inadequate record because Hunt’s
intent regarding drug type was never litigated. Harmless error
review of Apprendi errors requires us to “ ‘determin[e] what
evidence [the parties] would have introduced at trial’ had the
issue been properly presented.” Zepeda-Martinez, 470 F.3d at
914, n.3 (quoting United States v. Nordby, 225 F.3d 1053,
1061 n. 6 (9th Cir.2000), overruled on other grounds by
United States v. Buckland, 289 F.3d at 568). On the record
before us, it is speculative at best to predict what evidence the
parties would have presented at trial relevant to Hunt’s intent
to possess cocaine.

If Hunt’s case had proceeded to trial, he could have raised
Sixth Amendment or evidentiary objections, he could have
presented expert testimony to counter the opinions of Detec-
tive Feliciano, he could have cross-examined the various
civilian and government witnesses called by the government,
and he could have decided to testify to tell his side of the
story. Most importantly, a jury would have evaluated and
weighed the conflicting evidence. In contrast, we have before
us on appeal a presentence report, a few documents admitted
at the sentencing hearing, and a cold transcript of one detec-
tive’s testimony. Given the limited record in this case, we
decline to speculate on how a hypothetical trial may have
unfolded because “we cannot reasonably conclude that these
issues can be answered fairly based on reason and the record
presented.” Jordan, 291 F.3d at 1096.

[8] Accordingly, because Hunt contested the fact that the
drug he intended to possess was cocaine and because the
record evidence is far from overwhelming, we conclude that
the Apprendi error in this case was not harmless.
 UNITED STATES v. HUNT 16667
IV. Conclusion

[9] Due to the Apprendi error, we are required to vacate
Hunt’s sentence and remand for resentencing. We recognize
that our ruling will result in a substantial reduction in Hunt’s
sentence. On remand, the district court must resentence Hunt
within the statutory range applicable given the facts that were
admitted at the original change of plea hearing. See Thomas,
355 F.3d at 1201-02. Without an admission to the type of
drug involved in the offense or a waiver of his rights under
Buckland and Apprendi, Hunt faces a maximum of one year
in prison under 21 U.S.C. § 841(b)(3), the least severe maxi-
mum sentence under section 841(b). See Thomas, 355 F.3d at
1201-02; compare 21 U.S.C. § 841(b)(1)(C) (unspecified
amount of schedule I or II substance), with 21 U.S.C.
§ 841(b)(3) (schedule V substance).

The dissent complains that this result is unjust because it
allows a criminal to “escape a richly deserved sentence based
on an irrelevant technicality.” The requirement that the gov-
ernment prove facts supporting a greater sentence beyond a
reasonable doubt, or that the defendant admit such facts, how-
ever, is not an irrelevant technicality. The Supreme Court has
explained that this requirement involves “constitutional pro-
tections of surpassing importance.” Apprendi, 530 U.S. 476;
see also In re Winship, 397 U.S. 358, 364 (1970) (“It is . . .
important in our free society that every individual going about
his ordinary affairs have confidence that his government can-
not adjudge him guilty of a criminal offense without convinc-
ing a proper factfinder of his guilt with utmost certainty.”). A
sentence cannot be “richly deserved” under our Constitution
if the facts supporting the sentence have not been proven as
constitutionally required.

The result we announce could easily have been avoided had
the district court or the prosecutor been more precise during
the plea colloquy in obtaining Hunt’s explicit admission to the
type of drug he intended to possess and distribute. This is not
16668 UNITED STATES v. HUNT
an arduous task, and when a defendant equivocates or refuses
to admit an essential fact supporting a sentence, the district
court can reject the defendant’s plea and proceed to trial.
Avoiding what the dissent calls a “windfall” sentence reduc-
tion due to an Apprendi error is achieved through a court’s
faithful compliance with constitutional requirements, not
through appellate review. We are aware that Hunt has a less
than stellar criminal record, but we reject the dissent’s
implicit suggestion that Hunt’s criminal record should some-
how influence our harmless error analysis. Our responsibility
is to see that constitutional requirements are met. When they
are not and the constitutional error is not harmless beyond a
reasonable doubt, a sentence cannot stand.

VACATED and REMANDED for resentencing consistent
with this opinion.

O’SCANNLAIN, Circuit Judge, dissenting:

The court orders Hunt’s sentence effectively reduced from
fifteen years to time served because the trial judge who took
his guilty plea failed to seek an explicit admission that Hunt
knew that the illegal drug he ordered, picked up, and pos-
sessed was cocaine. In my view, this error was harmless in
light of the overwhelming and uncontroverted evidence that
Hunt knew exactly what he was doing.

The majority does not really dispute this. Instead, it pro-
mulgates a new rule for this circuit, essentially eliminating
harmless error review of Apprendi violations. Because of such
unwarranted change in our sentencing jurisprudence, I must
respectfully dissent.
 UNITED STATES v. HUNT 16669
I

A

In January 2004, the Anchorage Police Department
received information that a man named “Stacy” was traffick-
ing cocaine into Alaska by hiding it in candles. Later, law
enforcement officers intercepted a package at the Anchorage
airport which contained 1.2 kilograms of cocaine hidden
inside candles. A controlled delivery was executed at the
address listed on the package. A woman signed for the pack-
age and put it in the trunk of a car. Police then saw the defen-
dant, Stacy Hunt, remove the package from the trunk of the
car and leave with it in a Ford Explorer. The police stopped
the Explorer, seized the cocaine, and arrested Hunt.

Hunt admitted to police that he ordered the cocaine and
paid the woman $400 to sign for the package and to leave it
for him in the trunk of the car. He then wrote a confession
with his own hand stating that “Kisha called me . . . to pick
up [the] package,” “my understanding is that Kisha would be
paid $400,” and a “package of 1 Kilo of coke was to be put
in burgundy Mercedes S.U.V.”

B

A federal indictment alleged that Hunt “knowingly and
intentionally attempt[ed] to possess with intent to distribute a
controlled substance, to wit: 500 grams or more of a mixture
and substance containing cocaine,” in violation of 21 U.S.C.
§§ 841(b)(1)(B) and 846. Hunt appeared in federal court to
plead guilty to the sole count in the indictment. The judge
asked the Assistant United States Attorney (AUSA) to state
the elements of the crime to which Hunt was pleading guilty.
The AUSA stated that “the elements would be that on or
about January 26th of 2004, Mr. Hunt attempted to possess a
parcel that contained a little over a kilogram of cocaine . . .
and that he did so knowingly.” The court then asked Hunt if
16670 UNITED STATES v. HUNT
he understood what the government would have to prove in
order to obtain a conviction, and Hunt said, “Yes.” “And
you’ve discussed all this with your attorney?” the court asked.
Again, Hunt said, “Yes.” The AUSA then interrupted, noting
that he forgot an element, namely, “that Mr. Hunt attempted
to possess that cocaine with the intent to distribute it.” “Do
you understand that additional element?” asked the court.
Again, Hunt replied, “Yes, I do.”

At this point, the court added a casual phrase in a simple
follow up question which, as it turns out, effectively knocks
fourteen years off Hunt’s sentence. The judge said: “So you
attempted to possess cocaine, you knew it was cocaine or
some illegal drug, and you did it with the intent to distribute.
I guess those are the three elements, okay?” (emphasis
added). Hunt responded, “[T]o those elements, yes, I agree.”
Hunt then asked, “Could you give me those elements once
again?” The court directed the AUSA to state the elements
again, and he said “that Mr. Hunt attempted to possess a par-
cel which contained a little over a kilogram of cocaine . . . .
We’d have to prove that Mr. Hunt’s attempt to possess that
cocaine was done knowingly and then we’d have to prove that
he intended to distribute that cocaine.” “Got it?” the court
asked. “Okay, yes,” replied Hunt. “Yes, I understand those
elements,” Hunt continued, “As far as the specific amount, I
don’t have personal knowledge of it as I never opened the
package and weighed it, but I do accept responsibility for
whatever was in it.” Deeming this sufficient, the court
accepted Hunt’s guilty plea.

C

The district court sentenced Hunt for attempting to possess
an unspecified amount of cocaine, pursuant to 21 U.S.C.
§ 841(b)(1)(B), which carries a statutory maximum of twenty
years’ imprisonment. The district court determined the base
offense level was twenty-six and departed upward from a
criminal history category of IV to one of VI to reach a Guide-
 UNITED STATES v. HUNT 16671
lines range of 120 to 150 months. The court then imposed an
above-guidelines sentence of 180 months. Both the upgrade in
the defendant’s criminal history category and the upward
departure in reaching the ultimate sentence of fifteen years
were driven by Hunt’s extensive criminal history. As the dis-
trict court put it, Hunt has led a life “consumed with criminal
activity.”

This was no exaggeration. In 1984, when Hunt was just
seventeen, he attacked a woman on the street, dragged her
into a stairwell, and attempted to rape her. The police found
Hunt exposed and on top of the woman, who was crying and
pleading with him to stop. Hunt’s punches left her with a
bleeding mouth, a bruised face, and scratches on her neck. To
avoid responsibility, Hunt told the police that the woman was
a prostitute and was attempting to rob him. Hunt was con-
victed of attempted rape but, due to his age, received no jail
time. Four years later, Hunt was arrested for sexual assault
again. This time, he was accused of kidnapping a woman out-
side her home at gunpoint, forcing her into his car, driving her
to a park, and raping her. Hunt’s defense, again, was that the
woman was a prostitute. No charges were filed.

A month later, in October 1988, Hunt, along with four oth-
ers claiming to be members of “the Disciples,” severely beat
and threatened to kill a man who had refused to give them the
case of beer he was carrying. Although Hunt was arrested for
robbery, the case was dismissed, in part because the victim
could no longer be located. In 1989, Hunt was convicted of
selling cocaine, for which he received a one-year sentence.

In 1991, Hunt participated in the kidnapping and murder of
a rival drug dealer. Hunt claimed that his co-defendants
forced him to participate in the killing, a story which prosecu-
tors apparently believed because they arranged for him to
receive a three-year sentence, suspended for twelve months,
in exchange for his cooperation. In 1993, Hunt was again con-
victed of drug possession, jailed for ninety days, and put on
16672 UNITED STATES v. HUNT
probation for three years, which he violated, causing him to
serve ninety more days. Within a year of his release, Hunt
violated his probation once again, this time by firing a gun in
a nightclub in May 1994. Hunt was sentenced to two years in
jail when he was finally convicted of this crime, after failing
to appear in the original proceedings.

Just eight days after the nightclub incident, in June 1994,
Hunt committed “battery with serious injury and a deadly
weapon,” by brutally beating his ex-girlfriend with a wooden
baby cradle, and leaving her with a number of injuries, includ-
ing a gash that required twenty stitches to close. He was sen-
tenced to six years in prison. (At the same time, he was also
charged with kidnapping, sexual battery, and forced oral sex,
but not convicted.) Hunt went to jail for these crimes in 1996,
but he was released on parole after two years, only to violate
his parole three months later by testing positive for cocaine.
He was arrested for another parole violation in 1999 and sen-
tenced to six more months in jail. He violated parole once
again in February 2000, for which he was not arrested until
2007.

Hunt was arrested on the current charges in 2004, but
absconded to California after being released from police cus-
tody. It was not until December 2007, when he was arrested
in California for beating up another women, that Hunt was
finally returned to Alaska to face charges in the instant case.

Based on this vicious criminal history, the district court
determined that a fifteen year sentence was necessary to “pro-
tect the public from further crimes of the defendant.” 18
U.S.C. § 3553(a)(2)(C). The court added that, while Hunt’s
intelligence and charisma may have enabled him to avoid tak-
ing significant responsibility for his actions in the past, it
would not do so this time.

II

The majority correctly recites the Apprendi rule: “Other
than the fact of a prior conviction, any fact that increases the
 UNITED STATES v. HUNT 16673
penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable
doubt,” Apprendi v, New Jersey, 530 U.S. 466, 490 (2000),
but goes astray thereafter. Assuming arguendo that the district
court committed Apprendi error by finding intentional cocaine
possession yet failing to obtain an explicit admission from
Hunt that he knew the illegal drug he possessed was cocaine,
our precedent requires us to determine whether such error was
harmless. See United States v. Zepeda-Martinez, 470 F.3d
909, 910 (9th Cir. 2006) (“Apprendi errors are reviewed for
harmlessness.”). “[A]n error is harmless if the court finds
beyond a reasonable doubt that the result ‘would have been
the same absent the error.’ ” Id. at 913 (quoting Neder v.
United States, 527 U.S. 1, 19 (1999)). The court may make
such a finding where “the record contains ‘overwhelming’
and ‘uncontroverted’ evidence supporting” the omitted ele-
ment. Id. (quoting Neder, 527 U.S. at 17-18). Conversely, the
error is not harmless if “the defendant contested the omitted
element and raised evidence sufficient to support a contrary
finding.” Neder, 527 U.S. at 19. Where a court must deter-
mine whether an Apprendi error was harmless, its review “en-
compasses the whole record including the sentencing
proceedings.” Zepeda-Martinez, 470 F.3d at 913 n.3 (internal
quotation marks omitted). The purpose of this broad review
is “to assist [the court] in determining what evidence the par-
ties would have introduced at trial.” Id. (internal quotation
marks omitted). Thus, if we conclude, beyond a reasonable
doubt on the basis of the record, that a jury would have con-
victed Hunt of attempted possession of cocaine with intent to
distribute, the Apprendi error is harmless and we must affirm.

A

Here, the record contains overwhelming and uncontro-
verted evidence that Hunt attempted to possess cocaine with
the intent to distribute it. The police received a tip that a man
named “Stacy” was importing cocaine into Alaska, hidden in
candles. Later, they intercepted a package that arrived in
16674 UNITED STATES v. HUNT
Alaska containing just over a kilogram of cocaine hidden in
candles. The police then executed a controlled delivery of the
package at its intended address. Sure enough, the defendant—
who, as predicted, is “a man named ‘Stacy’ ”—retrieved the
package hours after it was delivered.1

If this were not enough to convince a jury that Hunt
intended to possess cocaine, Hunt confessed as much to the
police. Hunt admitted that he ordered the cocaine and paid a
woman named Kisha $400 to sign for the package and leave
it for him in the trunk of the car. He then wrote a confession
with his own hand stating that “Kisha called me to pick up
[the] package” and that his “understanding is that Kisha
would be paid $400,” and that “package of 1 Kilo of coke was
to be put in burgundy Mercedes S.U.V.” Hunt’s confession
correctly recounted the amount of cocaine contained in the
package (roughly a kilogram) and how the cocaine ended up
in the trunk of the car: it was delivered to Kisha who signed
for it, placed it in the car, and called Hunt to tell him it was
ready for pick-up. This evidence of Hunt’s intent to possess
cocaine is surely “overwhelming.” Zepeda-Martinez, 470
F.3d at 913.
1
The majority calls this evidence “circumstantial” and faults the govern-
ment for not offering evidence that Hunt “looked inside the package to
verify its contents.” Maj. Op. at 16663. This is an outrageous burden to
place on the government, and one which is inconsistent with our long-
standing rule that “circumstantial evidence can be used to prove any fact,”
United States v. Ramirez-Rodriquez, 552 F.2d 883, 884 (9th Cir. 1977),
and is no less inherently probative than is direct evidence, Ninth Circuit
Model Criminal Jury Instructions § 1.5 (2010). Moreover, intent is almost
always proven circumstantially since the only direct evidence of intent is
a confession (which, incidentally, the government also presented in this
case). See, e.g., Cnty. Court of Ulster Cnty., N.Y. v. Allen, 442 U.S. 140,
164 (1979) (noting that “it is surely rational to infer” from the fact that the
defendants were in a car which contained guns “that each [defendant] was
fully aware of the presence of the guns and had both the ability and the
intent to exercise dominion and control over” them).
 UNITED STATES v. HUNT 16675
Further, Hunt has not “controverted” this evidence, as he
must to show that he suffered prejudice from the Apprendi
error. See Zepeda-Martinez, 470 F.3d at 913. Nor could he.
Hunt admits that he ordered the package and picked it up
knowing it contained a controlled substance, but he would
have the Court believe that he did not know which controlled
substance he ordered and picked up. Surely it can be pre-
sumed, however, that drug dealers are not in the habit of giv-
ing each other more than they bargained for. It would
therefore be absurd to suggest that Hunt —notwithstanding
his confession to a “package of 1 Kilo of coke”—actually
ordered a far less valuable illegal drug, such as marijuana, but
the sender just decided (on his own) to mail cocaine instead,
without informing Hunt or asking to be paid for the drug
upgrade.

Moreover, if Hunt attempted to offer such an outlandish
defense at trial, the government would likely be able to intro-
duce Hunt’s string of drug convictions in order to show that
Hunt was an experienced drug dealer who would have made
a point to know exactly what drug he was receiving. See
United States v. Vo, 413 F.3d 1010, 1018-19 (9th Cir. 2005)
(holding that the defendant’s prior drug conviction could be
admitted to rebut his claim that he had no knowledge that a
package he shipped contained methamphetamine because the
“conviction tended to show that [he] was familiar with distri-
bution of illegal drugs and that his actions in this case were
not an accident or a mistake”); United States v. Howell, 231
F.3d 615, 628 (9th Cir. 2000) (holding that defendant’s “prior
convictions for possession . . . with intent to deliver cocaine
[were admissible] to show that [the defendant] knew that the
substance in the bag was a narcotic”).

In sum, the only possible defense that is available to Hunt
—that he received a free upgrade from marijuana to cocaine
—is not one that “could rationally lead to a contrary finding
with respect to the omitted element.” Neder, 527 U.S. at 19.
Indeed, the majority has not offered a single theory that a
16676 UNITED STATES v. HUNT
defense counsel could possibly have argued to a jury in sum-
mation. Accordingly, there can be no reasonable doubt that,
absent the Apprendi error, the result—Hunt’s conviction for
attempted possession of cocaine with the intent to distribute
it—would have been the same.

B

The majority makes three efforts to avoid this conclusion,
none of which withstand even passing scrutiny. First, the
majority asserts that “Hunt’s denial of his intent in this case”
—which is unaccompanied by any explanation of how he
accidentally came into possession of a kilogram of cocaine—
meets the requirement that the defendant show “ ‘evidence
sufficient to support a contrary finding’ ” on the omitted ele-
ment. Maj. Op. at 16664 (quoting Neder, 527 U.S. at 19).
This, the majority explains, is because such testimony, “if
credited, would raise a reasonable doubt as to his intent.” Id.
But evidence is sufficient to support a contrary finding only
if it “could rationally lead to a contrary finding.” Neder, 527
U.S. at 19. Thus, we must ask whether a rational jury could
credit Hunt’s denial of intent to posses cocaine. The majority
refuses to ask that question, stating instead that it “cannot
conclude beyond a reasonable doubt that a rational jury would
not find Hunt credible, especially where Hunt has never had
the opportunity to testify,” notwithstanding his conscious
choice to plead guilty and to waive trial. Maj. Op. at 16665.

This passage ignores the requirement that a defendant must
both “contest[ ] the omitted element and raise[ ] evidence suf-
ficient to support a contrary finding.” Neder, 527 U.S. at 19
(emphasis added); see also id. (requiring the defendant to
“bring forth facts contesting the omitted element”). Instead,
the majority allows a defendant to meet his Neder obligation
based on the mere possibility that whatever he would have
said at trial might have been credible.2
2
The majority is also impressed by Hunt’s claim that he confessed only
because that is what the police “wanted to hear.” Maj. Op. at 16664. But
 UNITED STATES v. HUNT 16677
Next, the majority notes that “the contested fact in this case
is Hunt’s intent, a fact that is not subject to easy proof like the
date of prior removal in Zepeda-Martinez, a fact which was
proved through uncontroverted documentary evidence.” Maj.
Op. at 16663. The implication is that harmless error analysis
should be limited to cases where the error concerned an easily
provable element. But this is inconsistent with Supreme Court
cases which have “repeatedly recognized that the commission
of a constitutional error at trial alone does not entitle a defen-
dant to automatic reversal,” Washington v. Recuenco, 548
U.S. 212, 218 (2006), even where the defendant is deprived
of a jury finding on an element, such as intent, which is not
easily provable. See, e.g., California v. Roy, 519 U.S. 2, 5
(1996) (per curiam) (holding that the failure to instruct the
jury that it must find intent to kill in order to convict the
defendant of aiding and abetting murder was subject to harm-
less error analysis); Carella v. California, 491 U.S. 263,
266-67 (1989) (holding that an instruction that foreclosed
independent jury consideration of whether the defendant
intended to commit theft was subject to harmless error analy-
sis).

Finally, the majority relies heavily on United States v. Jor-
dan, 291 F.3d 1091 (9th Cir. 2002), which held that an
Apprendi error will not be deemed harmless when a necessary
element “is neither charged in the indictment nor proved to a

simply attacking one piece of evidence (the confession) with one of the
most common means by which confessions are challenged (by claiming
that the confessor was just seeking to please his interrogators) is not suffi-
cient evidence to support a contrary finding. Compare United States v.
Nordby, 225 F.3d 1053, 1060-61 (9th Cir. 2000), overruled on other
grounds by United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (con-
cluding that the defendant brought forth evidence sufficient to support a
contrary finding on the quantity of marijuana grown on his land by dem-
onstrating that he “had been vacationing for much of the time that the mar-
ijuana crop had been in the ground, and only returned to the area five days
before being arrested”).
16678 UNITED STATES v. HUNT
jury beyond reasonable doubt.” Id. at 1097. But Jordan’s
exception to harmless error analysis does not apply here
because the type of drug Hunt intended to possess was
charged in the indictment.

III

Near the end of its opinion, it becomes clear that the major-
ity is not really applying harmless error analysis at all. Indeed,
the majority refuses to discuss the strength of the evidence in
this case. Instead, it declines to find this Apprendi error harm-
less for reasons that would apply to any case in which there
is an Apprendi error, thereby effectively eliminating harmless
error review in such case.

A

The majority reasons that “the plea and sentencing proceed-
ings in this case provide an inadequate record because Hunt’s
intent regarding drug type was never litigated.” Maj. Op. at
16666. The majority correctly explains that harmless error
review “requires us to ‘determin[e] what evidence the parties
would have introduced at trial’ had the issue been properly
presented.’ ” Id. (quoting Zepeda-Martinez, 470 F.3d at 913
n.3). But it objects that, “[o]n the record before us, it is specu-
lative at best to predict what evidence the parties would have
presented at trial,” and thus refuses “to speculate on how a
hypothetical trial may have unfolded.” Id.

These objections would apply to almost every appeal in
which there is an Apprendi error since, in such cases, the
omitted element will almost never have been litigated. Thus,
under the precedent established today, a defendant asserting
Apprendi error can avoid harmless error analysis simply by
pointing out that he did not have the opportunity to litigate the
omitted element. Similarly, it is always “speculative” to “de-
termin[e] what evidence the parties would have introduced at
trial had the issue been properly presented.” Zepeda-
 UNITED STATES v. HUNT 16679
Martinez, 470 F.3d at 913 n.3 (emphasis added) (internal quo-
tation marks omitted); cf. Bryan A. Garner, Modern American
Usage 780 (3rd ed. 2009) (stating that the subjunctive mood
is most commonly used to express states of irreality such as
“conditions contrary to fact”). Therefore, while the majority
may be uncomfortable engaging in a counterfactual inquiry,
we are under explicit instructions from our precedents to con-
duct just such an inquiry.3

B

The Supreme Court made precisely these points in Neder
when it held that the failure to submit an element of a crime
to the jury is subject to harmless-error analysis. There, the
defendant argued that “[t]o rely on overwhelming record evi-
dence of guilt [that] the jury did not actually consider . . .
would be to dispense with trial by jury and allow judges to
direct a guilty verdict.” Neder, 527 U.S. at 17 (emphasis omit-
ted). The Neder Court explicitly rejected this argument, not-
ing that “[t]he erroneous admission of evidence in violation of
the Fifth Amendment’s guarantee against self-incrimination
and the erroneous exclusion of evidence in violation of the
right to confront witnesses guaranteed by the Sixth Amend-
ment are both subject to harmless-error analysis,” even
though such errors, like Apprendi errors, “infringe upon the
jury’s factfinding role” in ways that are “not readily calcula-
ble.” Id. at 18 (internal quotation marks omitted).
3
Put another way, the majority’s objection is either that “Hunt’s intent
regarding drug type was never litigated,” or that it was never litigated in
front of a jury. If it is the latter, then this is the end of harmless error
review of Apprendi violations in the Ninth Circuit since such violations
only occur where an element of a crime is not “submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. If it is the
former, that is, if the majority only objects that the record of Hunt’s intent
was not sufficiently developed during the sentencing proceedings, then the
proper remedy (contrary to its holding) would be to remand so that the dis-
trict court can hold a hearing and make a factual finding on whether Hunt
intended to possess cocaine.
16680 UNITED STATES v. HUNT
The defendant in Neder likewise insisted that, without “an
actual verdict of guilty-beyond-a-reasonable-doubt, . . . the
basis for harmless-error review is simply absent,” requiring
the court to speculate about how a hypothetical trial may have
unfolded. Id. at 11 (internal quotation marks omitted). But,
again, the Court deemed this concern inconsistent with its
cases which have repeatedly applied harmless error review
even “where the jury did not render a ‘complete verdict’ on
every element of the offense.” Id. at 13; see also Recuenco,
548 U.S. at 221 (rejecting the argument that applying harm-
less error analysis to an Apprendi error would require appel-
late courts to “hypothesize a guilty verdict that was never in
fact rendered” (internal quotation marks omitted)).

If there is one way Apprendi errors differ from other errors
to which harmless error analysis applies, it is this: where a
sentence is reversed under Apprendi, the government does not
have the opportunity to retry the defendant. Accordingly,
Apprendi errors often result in convicted criminals receiving
windfall sentence reductions. This case exemplifies such
windfalls: Hunt’s fifteen-year sentence—imposed chiefly
because of his staggering criminal history—is effectively
reduced to one year, or, more realistically, to time served.

C

The majority goes on to undermine harmless error review
even further by espousing views of the judicial role that are
inconsistent with the explicit limits that Congress has placed
on appellate review of criminal sentences.

First, the majority categorically proclaims that “[o]ur
responsibility is to see that constitutional requirements are
met.” Maj. Op. at 16668. Congress, however, has directed
federal courts reviewing criminal convictions to “give judg-
ment after an examination of the record without regard to
errors or defects which do not affect the substantial rights of
the parties.” 28 U.S.C. § 2111. This rule, as well as the Fed-
 UNITED STATES v. HUNT 16681
eral Rules of Criminal Procedure, requires that we “ ‘disre-
gard[ ]’ errors that are harmless beyond a reasonable doubt.”
Neder, 527 U.S. at 7 (quoting Fed. R. Crim. P. 52(a)). Since
Congress need not provide criminal defendants with any
appellate remedy whatsoever, see Abney v. United States, 431
U.S. 651, 656 (1977), it is certainly within its power to limit
appellate remedies to legal errors that likely affected the result
of the proceeding in the trial court. Therefore, we do not have
an unqualified “responsibility . . . to see that constitutional
requirements are met.” Maj. Op. at 16668. To the contrary,
we have an explicit statutory responsibility to “give judge-
ment . . . without regard to [harmless] errors.” 28 U.S.C.
§ 2111. This includes Apprendi errors. Recuenco, 548 U.S. at
222.

Second, the majority insists that an Apprendi error is never
a “technicality,” and that “[a]voiding what the dissent calls a
‘windfall’ sentence reduction due to an Apprendi error is
achieved through a court’s faithful compliance with constitu-
tional requirements, not through appellate review.” Maj. Op.
at 16668. This ignores the fact that the Supreme Court has
applied harmless error review to Apprendi claims and has
repeatedly stated that the harmless error doctrine “ ‘serve[s] a
very useful purpose insofar as it blocks setting aside convic-
tions for small errors or defects that have little, if any, likeli-
hood of having changed the result of the trial.’ ” Neder, 527
U.S. at 19 (quoting Chapman v. California, 386 U.S. 18, 22
(1967)). Indeed, avoiding a windfall sentence reduction based
on a “small error” (or “technicality,” if you will) is the very
purpose of the harmless error doctrine. See Shinseki v. Sand-
ers, 129 S.Ct. 1696, 1705 (2009) (“The federal ‘harmless-
error’ statute . . . seeks to prevent appellate courts from
becoming ‘impregnable citadels of technicality.’ ” (quoting
Kotteakos v. United States, 328 U.S. 750, 759 (1946))). So,
while the majority is correct that such windfalls are ideally
avoided “through a court’s faithful compliance with constitu-
tional requirements,” faithful compliance with statutory
16682 UNITED STATES v. HUNT
requirements mandates that windfalls must also be avoided
“through appellate review.” Maj. Op. at 16668.

Last, the majority maintains that “[a] sentence cannot be
‘richly deserved’ under our Constitution if the facts support-
ing the sentence have not been proven as constitutionally
required.” Id. at 16667. Yet Congress, under its constitutional
power to regulate the federal courts, has directed us to “give
judgment . . . without regard to [harmless] errors,” 28 U.S.C.
§ 2111, thereby establishing that a conviction and sentence
may still be warranted even if a constitutionally required pro-
cedure was not scrupulously followed. Cf. Kotteakos, 328
U.S. at 759 (stating that Congress passed the harmless error
rule to prevent criminal trials from becoming “a game”). “The
harmless error doctrine” thus “ ‘recognizes the principle that
the central purpose of a criminal trial is to decide the factual
question of the defendant’s guilt or innocence.’ ” Neder, 527
U.S. at 19 (quoting Delaware v. Van Arsdall, 475 U.S. 673,
681 (1986)); cf. Akhil Reed Amar, Sixth Amendment First
Principles, 84 Geo. L.J. 641, 642 (1996) (arguing that “[t]he
deep principles underlying the Sixth Amendment,” and “con-
stitutional criminal procedure generally,” are “the protection
of innocence and the pursuit of truth”). The majority ignores
this principle by vacating Hunt’s sentence despite overwhelm-
ing evidence that he committed each of the elements neces-
sary to support it.

IV

The Supreme Court has warned that setting the harmless
error standard “so high that it could never be surmounted
would justify the very criticism that spawned the harmless-
error doctrine in the first place.” Id. at 18. That criticism is
that “ ‘[r]eversal for error, regardless of its effect on the judg-
ment, encourages litigants to abuse the judicial process and
bestirs the public to ridicule it.’ ” Id. (quoting R. Traynor, The
Riddle of Harmless Error 50 (1970)).
 UNITED STATES v. HUNT 16683
The Neder Court could have been talking about this case.
Today, a defendant who has consistently evaded responsibil-
ity for his criminal conduct is once again rewarded for his
labors. And today, the public sees a criminal who has shown
nothing but cruelty to his fellow citizens and contempt for the
law escape a richly deserved sentence based on an irrelevant
technicality.

I respectfully dissent.