United States v. Vladimir Rodriguez

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________

No. 04-12676
FILED
_______________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
D.C. Docket No. 03-00217-CR-T-23-EAJ April 19, 2005
THOMAS K. KAHN
CLERK
UNITED STATES OFAMERICA,

Plaintiff-Appellee,

versus

VLADIMIR RODRIGUEZ,

Defendant-Appellant.

_______________________

Appeal from the United States District Court
for the Middle District of Florida
_______________________

ON REQUEST FOR POLL FOR REHEARING EN BANC
Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, and
PRYOR, Circuit Judges.

O R D E R:

The Court having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular active service not

having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), rehearing en banc is DENIED.

/s/ J. L. EDMONDSON
CHIEF JUDGE

2
CARNES, Circuit Judge, concurring in the denial of rehearing en banc:

With its denial of rehearing en banc in this case, this Court has left intact

our circuit law on Booker plain error as it is laid out by our panel decision in this

case, United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005), and by our

decisions in United States v. Duncan, 400 F.3d 1297 (11th Cir. 2005), United

States v. Shelton, 400 F.3d 1325 (11th Cir. 2005), and United States v. Curtis, 400

F.3d 1334 (11th Cir. 2005) (per curiam).

Our Rodriguez decision, which was followed in Duncan and Curtis,

establishes that the use of extra-verdict enhancements under the pre-Booker

mandatory guidelines scheme is Sixth Amendment error that is plain. Rodriguez,

398 F.3d at 1298–99; Duncan, 400 F.3d at 1304; Curtis, 400 F.3d at 1335.

Shelton adds to our circuit law the rule that while pre-Booker sentencing free of

any extra-verdict enhancement is not a violation of the Sixth Amendment, it is

statutory error under the remedial part of the Booker decision. Shelton, 400 F.3d

at 1330–31. The upshot of our four decisions is that the first two prongs of the

four-prong plain error test are met in all pre-Booker sentencing cases.1 To that

1
In United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770 (1993), the Supreme Court
held that in order to satisfy the plain error test, the defendant must demonstrate (1) error, (2) that
is plain, and (3) that affects substantial rights. Id. at 732–37, 113 S. Ct. at 1777–79. “If all three
conditions are met, an appellate court may then exercise its discretion to notice a forfeited error,
but only if (4) the error ‘seriously affects the fairness, integrity, or public reputation of judicial
proceedings.’” Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997)

3
common holding Shelton effectively adds that where the third prong of the plain

error test is met in these cases, the fourth one will be also. See id. at 1333–34.

Because the effect of Booker error is the same regardless of the type, our decisions

make no functional distinction between constitutional and statutory error. For

purposes of the plain error rule, unpreserved error is unpreserved error.

Under our decisions, where the Booker issue is raised for the first time on

appeal the third prong of the plain error test will be the decisive one. As we

explained in our panel opinion, the Supreme Court has instructed us that the third

prong requires that an error have “affect[ed] substantial rights,” which almost

always means that the error “must have affected the outcome of the district court

proceedings.” Rodriguez, 398 F.3d at 1299 (quoting United States v. Olano, 507

U.S. 725, 734, 113 S. Ct. 1770, 1778 (1993)). The standard for showing prejudice

is the familiar reasonable probability of a different result formulation, which

means a probability “‘sufficient to undermine confidence in the outcome’ of the

proceeding.” United States v. Dominguez Benitez, 542 U.S. 74, ___, 124 S. Ct.

2333, 2340 (2004) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.

Ct. 2052, 2068 (1984)). Of critical importance, “[i]t is the defendant rather than

the [g]overnment who bears the burden of persuasion with respect to prejudice.”

(internal marks omitted) (quoting Olano, 507 U.S. at 732, 113 S. Ct. at 1776).

4
Olano, 507 U.S. at 734, 113 S. Ct. at 1778.

Our four decisions do not adopt a per se rule about whether the third prong

of the plain error test will be met in pre-Booker sentencing cases. Instead, the

result depends, as it should, on the facts of the case. For that reason, it is entirely

consistent for Rodriguez, Duncan, and Curtis to have concluded that the

defendants in those three cases did not carry their burden of establishing the third

prong of the plain error test, while Shelton concluded that the defendant in that

case did.

I.

Judge Tjoflat would have this Court adopt a per se rule that the third prong

of the plain error test is met in every case of pre-Booker constitutional error, and

he would do it in a way that would also preclude application of the harmless error

doctrine even in the most extreme case. His thesis is that a Booker constitutional

error is a structural error or defect, and for that reason there is no need for the

defendant to show third-prong prejudice for plain error purposes. Judge Tjoflat

brands all pre-Booker sentences in which there was constitutional error “illegal,”

and he offers no plausible reason why the fourth prong of the test would not be

met if the third prong were. The bottom line of his approach is automatic reversal

of every pre-Booker sentence in which there was an extra-verdict enhancement.

5
That approach does offer the attraction of reducing this Court’s workload, because

nothing is easier to apply than an automatic rule that dictates the same result

regardless of the facts. Ease of application aside, the proposed rule is not legally

or logically appropriate in the pre-Booker area. No other judge has ever even

suggested this theory, except in the course of rejecting it.

Contrary to Judge Tjoflat’s belief, it simply is not true that “the only real

difference” between his approach and that of the Third, Fourth, and Sixth Circuits

is that his “offers a more satisfactory rationale for its result.” See Tjoflat, J.,

dissenting, at 70-71. While the situation in the Third Circuit is unclear, under the

Fourth and Sixth Circuits’ approach, sentences involving Booker constitutional

error may be upheld under the harmless error doctrine. See, e.g., United States v.

Tate, No. 02-4382, 2005 WL 513491, *6 (6th Cir. Mar. 3, 2005) (unpub.); United

States v. Bethea, No. 04-5022, 2005 WL 807016, *1 (4th Cir. Apr. 8, 2005)

(unpub.). As Judge Tjoflat concedes, his structural error approach precludes

application of that harmless error doctrine. See Tjoflat, J., dissenting, at 48

(“[S]tructural errors ‘defy analysis by ‘harmless-error’ standards’ and are per se

reversible if an objection is made at trial.” (quoting Arizona v. Fulminante, 499

U.S. 279, 309, 111 S. Ct. 1246, 1265 (1991)). No matter how clear it may be from

the record that the defendant would not have received a lesser sentence, a pre-

6
Booker sentence that involved an extra-verdict enhancement could not be affirmed

under harmless error analysis if we followed his suggestion. None of the eleven

other circuits to address Booker plain error issues have taken such an extreme

approach.2

The First Circuit has expressly rejected Judge Tjoflat’s structural theory of

Booker plain error. This is what that Court said about it:

Nor is this structural error. In certain structural error cases, those
which “undermin[e] the fairness of a criminal proceeding as a whole,” errors
can be corrected regardless of an individualized showing of prejudice to the
defendant. Dominguez Benitez, 124 S. Ct. at 2339; Olano, 507 U.S. at 735,
113 S. Ct. 1770; see Arizona v. Fulminante, 499 U.S. 279, 309–310, 111 S.
Ct. 1246, 113 L.Ed.2d 302 (1991) (providing examples of structural error).
Because sentencing under a mandatory system is not an error that
“undermines the fairness of a criminal proceeding as a whole,” as we
discuss above, a Booker type error is not a structural error; the defendant
must convince us of prejudice. Indeed, had the majority in Booker thought
there was structural error, it would have said so.

United States v. Antonakopoulos, 399 F.3d 68, 80 n.11 (1st Cir. 2005); see also

United States v. Gonzalez-Huerta, ___ F.3d ___, 2005 WL 807008, *4 (10th Cir.

Apr. 8, 2005) (en banc) (holding that Booker statutory error is not structural);

Knox v. United States, 400 F.3d 519, 523 (7th Cir. 2005) (explaining why

Apprendi error is not structural).

2
The eleven circuits in this count include the Ninth, although its Booker plain error
decision has been vacated for rehearing en banc. See United States v. Ameline, 400 F.3d 646,
654–55 (9th Cir.), reh’g en banc granted, ___ F.3d ___, 2005 WL 612710 (Mar. 11, 2005).

7
 In response to the First Circuit’s reasoning that if Booker error were

structural the Supreme Court would have said so, Judge Tjoflat says that the Court

did. According to him, the last sentence of Justice Breyer’s Booker majority

opinion about remedy tells us that we are dealing with structural error. To see that

message in the last sentence of that opinion requires not just a set of reading

glasses but also a vivid imagination. Rather than take the sentence out of context,

it is best to set out the entire last paragraph of the opinion:

As these dispositions indicate, we must apply today’s
holdings—both the Sixth Amendment holding and our remedial
interpretation of the Sentencing Act—to all cases on direct review. That
fact does not mean that we believe that every sentence gives rise to a Sixth
Amendment violation. Nor do we believe that every appeal will lead to a
new sentencing hearing. That is because we expect reviewing courts to
apply ordinary prudential doctrines, determining, for example, whether the
issue was raised below and whether it fails the “plain-error” test. It is also
because, in cases not involving a Sixth Amendment violation, whether
resentencing is warranted or whether it will instead be sufficient to review a
sentence for reasonableness may depend upon application of the
harmless-error doctrine.

United States v. Booker, 543 U.S. ___, ___, 125 S. Ct. 738, 769 (2005) (internal

citations omitted).

Focusing on the last sentence, Judge Tjoflat reasons that: 1) because the

Supreme Court explicitly said that the harmless error doctrine applies to statutory

Booker error, the Court must have meant that the harmless error doctrine does not

8
apply to constitutional Booker error; 2) because the harmless error doctrine does

not apply to constitutional Booker error, this type of error must be structural in

nature; and 3) because constitutional Booker error is structural in nature, all

constitutional Booker error amounts to the deprivation of substantial rights for

plain error purposes. Never has so much been inferred from so little.

There are all kinds of problems with this theory. To begin with, it is based

upon a negative pregnant, and as Judge Becker once observed for the Third

Circuit, “drawing instruction from Supreme Court passages through the use of the

negative pregnant is risky and unsatisfactory.” Brooks v. Kyler, 204 F.3d 102,

108 (3d Cir. 2000). Here doing so is particularly unsatisfactory because it has the

effect of contradicting a more direct statement in the same paragraph of the same

opinion. In the two sentences immediately preceding the one in question, the

Supreme Court said that every Booker appeal will not lead to a new sentencing

hearing “because we expect reviewing courts to apply ordinary prudential

doctrines, determining, for example, whether the issue was raised below and

whether it fails the ‘plain-error’ test.” Booker, 543 U.S. at ___, 125 S. Ct. at 769.

In that sentence the Supreme Court expressed its belief that some sentences

involving Booker error would be affirmed because the defendant could not satisfy

the plain error test. The Court’s stated belief that the rigors of the plain error test

9
would weed out some Booker error cases is not surprising given that it has

previously instructed us that the power to notice plain error should be exercised

“sparingly,” Jones v. United States, 527 U.S. 373, 389, 119 S. Ct. 2090, 2102

(1999), and only “in those circumstances in which a miscarriage of justice would

otherwise result,” Olano, 507 U.S. at 736, 113 S. Ct. at 1779 (internal quotation

omitted). Judge Tjoflat’s position directly contradicts the Supreme Court’s belief

that some Booker error cases, even those involving Sixth Amendment violations,

will be affirmed because the defendants cannot satisfy the rigorous requirements

of the plain error test.

Judge Tjoflat’s structural theory contradicts that stated belief of the

Supreme Court, because under his theory the third prong of the plain error test will

always be satisfied where there is Booker constitutional error. And the third prong

is the decisive one. Every court to address the matter has agreed that Booker error

satisfies the first two prongs of the plain error test. Likewise, all of the courts to

address the issue have found the fourth prong met in Booker constitutional error

cases where the third prong is satisfied. See United States v. Oliver, 397 F.3d 369,

380–81 (6th Cir. 2005); United States v. Hughes, 396 F.3d 374, 380–81 (4th Cir.),

amended on reh’g by ___ F.3d ___, 2005 WL 628224 (Mar. 16, 2005); United

States v. Ameline, 400 F.3d 646, 654–55 (9th Cir.), reh’g en banc granted, ___

10
F.3d ___, 2005 WL 612710 (Mar. 11, 2005); Shelton, 400 F.3d at 1333–34;

United States v. Coles, ___ F.3d ___, 2005 WL 783069, *3 (D.C. Cir. Apr. 8,

2005) (per curiam); see also United States v. Davis, 397 F.3d 173, 183 (3d Cir.

2005).3

Judge Tjoflat does not provide any persuasive basis for believing that the

fourth prong of the plain error test will not be met as a matter of course if, as he

contends, Booker constitutional error is structural. The Supreme Court said in

Dominguez Benitez that structural errors “undermin[e] the fairness of a criminal

proceeding as a whole.” 542 U.S. at ___, 124 S. Ct. at 2339. Quoting another

Supreme Court opinion, Judge Tjoflat insists that “[b]ecause structural error

affects the framework of the trial itself, its ‘consequences . . . are necessarily

unquantifiable and indeterminate.’” See Tjoflat, J., dissenting, at 48 (quoting

Sullivan v. Louisiana, 508 U.S. 275, 282, 113 S. Ct. 2078, 2083 (1993)). In

explaining the impact of structural errors, the Supreme Court stated: “Without

3
A panel of the Sixth Circuit skipped the third prong and held that the fourth prong of the
plain error test was not met in one case. United States v. Bruce, 396 F.3d 697, 719–20 (6th Cir.
2005). However, the Sixth Circuit has since decided that the Bruce decision is not to be followed
because it conflicts with the earlier decision of another Sixth Circuit panel in the Oliver case.
See United States v. Milan, 398 F.3d 445, 452 n.3 (6th Cir. 2005) (“To the extent Bruce conflicts
with Oliver, we note that we must follow Oliver because it was decided first.”). The Tenth
Circuit’s en banc majority opinion, like that of the Sixth Circuit’s Bruce panel, also skipped the
third prong and went straight to the fourth in its recent plain error decision. See Gonzalez-
Huerta, 2005 WL 807008, at *6–9.

11
these basic protections, a criminal trial cannot reliably serve its function as a

vehicle for determination of guilt or innocence, and no criminal punishment may

be regarded as fundamentally fair.” Rose v. Clark, 478 U.S. 570, 577–78, 106 S.

Ct. 3101, 3106 (1986) (internal citation omitted).

Because structural error, where it exists, renders a criminal punishment

fundamentally unfair, it would be difficult to justify a conclusion that an error that

is structural does not “seriously affect[] the fairness, integrity or public reputation

of judicial proceedings,” Olano, 507 U.S. at 732, 113 S. Ct. at 1776 (quotation

omitted). See United States v. Recio, 371 F.3d 1093, 1103 n.7 (9th Cir. 2004)

(“We note that structural error is particularly likely to satisfy Olano’s fourth

prong.”).

So far as can be discovered, no court has ever actually held that an error is

structural but fails to meet the fourth prong of the plain error test. However much

it may detract from the appeal of the Booker structural error theory, the fact is that

adopting that theory will almost certainly result in reversal without regard to the

facts of an individual case. That is what the structural error approach generally

does and is one reason it is so rarely applied.

The result of Judge Tjoflat’s position that Booker constitutional error is

structural error, then, is that every Booker constitutional error will satisfy the plain

12
error test and require reversal and resentencing. Thus, in his view, the Supreme

Court’s belief about the effect of applying “ordinary prudential doctrines,

determining, for example, whether the issue was raised below and whether it fails

the ‘plain-error’ test,” Booker, 543 U.S. at ___, 125 S. Ct. at 769, is wrong.

Applying the plain error test to unpreserved Booker error will not, as the Court

thought, prevent every appeal from leading to a new sentencing hearing. See id.

Seeking to free his theory from the clutches of the Supreme Court’s

statement that not every Booker error will meet the requirements of the plain error

test, Judge Tjoflat posits that the Court must have meant only Booker statutory

error. Beyond satisfying the needs of his theory, there is no reason to interpret the

Court’s statement that way. The Court did not say that it expected reviewing

courts to apply ordinary prudential doctrines, such as the plain error test, only in

cases of statutory error. Nor is there any reason in law or logic to distinguish

between the two types of Booker error for purposes of the plain error rule. In

order to make Judge Tjoflat’s post-Booker plain error theory work, we would have

to write into our law a rule that statutory errors could not be treated as structural

regardless of their structural effect. No decision of the Supreme Court or of this

13
Court has ever held that, and there is no reason for this Court to do so now.4

The heart of Judge Tjoflat’s structural error theory is that Booker

constitutional errors affect the sentencing framework in ways that are “necessarily

unquantifiable and indeterminate.” Tjoflat, J., dissenting, at 48 (quoting Sullivan,

508 U.S. at 282, 113 S. Ct. at 2083). Yet, as he commendably concedes, Booker

constitutional and statutory errors cannot be distinguished based on the effect they

4
The language that Judge Tjoflat quotes from a footnote in our decision in United States
v. Sanchez, 269 F.3d 1250, 1272 n.41 (11th Cir. 2001) (en banc), is pure dicta. See Tjoflat, J.,
dissenting, at 54. The error in that case was constitutional, not statutory.
Judge Tjoflat expresses some surprise at the refusal of the panel opinion and its author to
be impressed by that dictum from the Sanchez opinion. Tjoflat, J., dissenting, at 76 n.18. He
shouldn’t be surprised, because it is well-established that dicta does not bind anyone. E.g.,
McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1315 (11th Cir. 1998) (Carnes, J., concurring)
(“For these reasons, among others, dicta in our opinions is not binding on anyone for any
purpose.”), quoted with approval, Shinn ex rel. Shinn v. Comm’r of Soc. Sec., 391 F.3d 1276,
1285 (11th Cir. 2004) (Tjoflat, J.).
The only thing that is truly surprising is Judge Tjoflat’s new-found respect for dicta, and
his reliance on the dictum in the Sanchez opinion, Tjoflat, J., dissenting, at 54., which comes
after years of proclaiming himself not to be bound by dicta in this Court’s, or even the Supreme
Court’s, opinions. See, e.g., United States v. Smith, ___ F.3d __, 2005 WL 628686, *19 n.7
(11th Cir. Mar. 18, 2005) (Tjoflat, J.) (“[T]he prior panel rule does not extend to dicta.” (internal
citation and quotation omitted)); United States v. Santa, 236 F.3d 662, 672 n.14 (11th Cir. 2000)
(Tjoflat, J.) (“It is well settled, however, that no opinion can be considered as binding authority
unless the case calls for its expression. As the court’s statement in Nixon was unnecessary to its
decision, it is a dictum and does not control our decision in this case.” (internal citation and
quotation omitted)); Klay v. United Healthgroup, Inc. 376 F.3d 1092, 1101 n.12 (11th Cir. 2004)
(Tjoflat, J.) (stating that “[t]his holding, moreover, was pure dicta, as we had previously
concluded that we lacked jurisdiction in the matter,” and concluding that “we are not bound to
adhere to it”); Mobley v. Head, 306 F.3d 1096, 1102 (11th Cir. 2002) (Tjoflat, J., dissenting)
(stating that because a decision on an issue by a prior panel was mere dicta, that issue remains
open for later review); Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1396 (11th Cir.
1998) (Tjoflat, J.) (stating that he was “mindful of dicta” in a Supreme Court decision “that
appeared to be in tension with the conclusions I reach today,” but concluding that he is not bound
by Supreme Court dicta).

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may have had on the sentence proceeding. Id. at 53-54. Everything that can be

said about the effect Booker constitutional error may have on a sentencing

proceeding applies with equal force to Booker statutory error. Every difference

between what Judge Tjoflat calls the “old model” of sentencing and the “new

model” that would be in place on remand exists regardless of whether there is an

extra-verdict enhancement in a case. The presence or absence of prejudice, and

the difficulty of determining it, is the same regardless of whether the Booker error

is constitutional or statutory. Judge Tjoflat concedes that treating one type of

unpreserved Booker error as structural and the other not, even though they have

the same effect on the structure of the proceeding, is “intuitively . . . odd,” id. at

53. That is an understatement.

In arguing for the distinction, Judge Tjoflat relies on a dissenting opinion

from Booker to dismiss statutory errors as “merely a byproduct of

Booker’s ‘unnecessarily broad remedy.’” Tjoflat, J., dissenting, at 75 (citing

Booker, 543 U.S. at ___, 125 S. Ct. at 788 (Stevens, J., dissenting)). That would

be fine, except dissenting opinions express dissenting views. In applying the

Booker decision, we cannot adopt the dissenting view on the remedy but must

instead accept the majority opinion as the law and follow it.

Judge Tjoflat’s theory that Booker constitutional error is structural error is

15
also contrary to this Court’s own en banc decision in United States v. Sanchez,

269 F.3d 1250 (11th Cir. 2001), where we discussed at length and rejected the

contention that any of the various types of Apprendi error were structural error.

Id. at 1272–75. Our decision that Apprendi error is not structural answers the

question of whether Booker error is structural, because Booker is an application of

Apprendi once removed. See Booker, 543 U.S. at ___, 125 S. Ct. at 755–56

(Stevens, J., maj. op.) (“our holding in Blakely applies to the Sentencing

Guidelines”); Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531, 2536 (2004)

(“This case requires us to apply the rule we expressed in Apprendi . . . .”).

Even if our Sanchez decision did not exist, we still should not hold that

Booker error is structural error. The Supreme Court itself has been careful to note

that, “[w]e have found structural errors only in a very limited class of cases.”

Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 1549 (1997). In

describing how limited that class of cases is, the Court in Arizona v. Fulminante,

listed the following decisions finding structural error: Gideon v. Wainwright, 372

U.S. 335, 83 S. Ct. 792 (1963) (the total deprivation of the right to counsel at

trial); Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437 (1927) (a biased judge);

Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617 (1986) (unlawful exclusion of

members of the defendant’s race from a grand jury); McKaskle v. Wiggins, 465

16
U.S. 168, 104 S. Ct. 944 (1984) (denial of the right to self-representation at trial);

and Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210 (1984) (denial of the right to

a public trial). Arizona v. Fulminante, 499 U.S. 279, 309–10, 111 S. Ct. 1246,

1265 (1991) (Rehnquist, C.J., maj. op.). The only case since Fulminante where the

Supreme Court has found a structural error is Sullivan v. Louisiana, 508 U.S. 275,

278–82, 113 S. Ct. 2078, 2081–83 (1993), which involved an improper jury

instruction on the “beyond a reasonable doubt” standard.

After listing those structural error cases, the Supreme Court in

Fulminante explained the common thread: “‘Without these basic protections, a

criminal trial cannot reliably serve its function as a vehicle for determination of

guilt or innocence, and no criminal punishment may be regarded as fundamentally

fair.’” Id. at 310, 111 S. Ct. at 1265 (quoting Rose v. Clark, 478 U.S. 570,

577–78, 106 S. Ct. 3101, 3106 (1986)). By contrast, Booker error does not

prevent a trial from serving its function as a vehicle for the determination of guilt

or innocence, and it does not render criminal punishment fundamentally unfair.

The pre-Booker regime was the law of the land that applied in determining

hundreds of thousands of federal sentences in this country over a period of almost

two decades. While Booker changes some of the rules, it does not compel the

conclusion that the sentencing process used in every federal court in this country

17
for the last twenty years was so defective that it resulted in thousands of

fundamentally unfair sentences.

The Supreme Court reiterated the rarity of structural error in Neder v.

United States, stating that: “[I]f the defendant had counsel and was tried by an

impartial adjudicator, there is a strong presumption that any other [constitutional]

errors that may have occurred are subject to harmless-error analysis.” 527 U.S. 1,

8, 119 S. Ct. 1827, 1833 (1999) (quotation omitted, brackets in original). The

same point about the rarity of structural error was made in Chief Justice

Rehnquist’s majority opinion in Fulminante. There he listed all of the types of

error the Court had held to be subject to harmless error analysis and therefore not

structural in nature:

Clemons v. Mississippi, 494 U.S. 738, 752–54, 110 S. Ct. 1441, 1450–51
(1990) (unconstitutionally overbroad jury instructions at the sentencing
stage of a capital case); Satterwhite v. Texas, 486 U.S. 249, 108 S. Ct. 1792
(1988) (admission of evidence at the sentencing stage of a capital case in
violation of the Sixth Amendment Counsel Clause); Carella v. California,
491 U.S. 263, 266, 109 S. Ct. 2419, 2421 (1989) (jury instruction containing
an erroneous conclusive presumption); Pope v. Illinois, 481 U.S. 497,
501–04, 107 S. Ct. 1918, 1921–23 (1987) (jury instruction misstating an
element of the offense); Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101 (1986)
(jury instruction containing an erroneous rebuttable presumption); Crane v.
Kentucky, 476 U.S. 683, 691, 106 S. Ct. 2142, 2147 (1986) (erroneous
exclusion of defendant’s testimony regarding the circumstances of his
confession); Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431 (1986)
(restriction on a defendant’s right to cross-examine a witness for bias in
violation of the Sixth Amendment Confrontation Clause); Rushen v. Spain,

18
 464 U.S. 114, 117–18 & n.2, 104 S. Ct. 453, 454–55 & n.2 (1983) (denial of
a defendant’s right to be present at trial); United States v. Hasting, 461 U.S.
499, 103 S. Ct. 1974 (1983) (improper comment on defendant’s silence at
trial, in violation of the Fifth Amendment Self-Incrimination Clause);
Hopper v. Evans, 456 U.S. 605, 102 S. Ct. 2049 (1982) (statute improperly
forbidding trial court’s giving a jury instruction on a lesser included offense
in a capital case in violation of the Due Process Clause); Kentucky v.
Whorton, 441 U.S. 786, 99 S. Ct. 2088 (1979) (failure to instruct the jury on
the presumption of innocence); Moore v. Illinois, 434 U.S. 220, 232, 98 S.
Ct. 458, 466 (1977) (admission of identification evidence in violation of the
Sixth Amendment Counsel Clause); Brown v. United States, 411 U.S. 223,
231–32, 93 S. Ct. 1565, 1570–71 (1973) (admission of the out-of-court
statement of a nontestifying codefendant in violation of the Sixth
Amendment Counsel Clause); Milton v. Wainwright, 407 U.S. 371, 92 S.
Ct. 2174 (1972) (confession obtained in violation of Massiah v. United
States, 377 U.S. 201, 84 S. Ct. 1199 (1964)); Chambers v. Maroney, 399
U.S. 42, 52–53, 90 S. Ct. 1975, 1981–82 (1970) (admission of evidence
obtained in violation of the Fourth Amendment); Coleman v. Alabama, 399
U.S. 1, 10–11, 90 S. Ct. 1999, 2003–04 (1970) (denial of counsel at a
preliminary hearing in violation of the Sixth Amendment Confrontation
Clause).

Fulminante, 499 U.S. at 306–07, 111 S. Ct. at 1263 (Rehnquist, C.J., maj. op.)

(some citations omitted). The Fulminante Court itself held that the admission of a

coerced confession was not a structural error. Id. at 310, 111 S. Ct. at 1265. Since

the Fulminante decision, the Court has added to the list of nonstructural errors in

the following decisions: United States v. Dominguez Benitez, 542 U.S. 74, ___,

124 S. Ct. 2333, 2339 n.6 (2004) (omission of a Fed. R. Crim. P. 11 warning is not

a structural error); Neder, 527 U.S. at 4, 14, 119 S. Ct. at 1831, 1836 (judicial

usurpation of the jury’s function of determining whether an element of the crime

19
existed is not structural error); Brecht v. Abrahamson, 507 U.S. 619, 628–30, 113

S. Ct. 1710, 1716–17 (1993) (the government’s use of the defendant’s post-

Miranda-warnings silence to impeach the defendant is not structural error).

Against this flood of decisions holding that various and sundry

constitutional and statutory errors are not structural, Judge Tjoflat’s proposition

that Booker error is structural is unpersuasive. It would not be enough to make

Booker error structural even if, as he argues, defendants had no incentive before

Booker to put forward evidence relating to the 18 U.S.C. § 3553(a) factors.

Tjoflat, J., dissenting, at 62. We know that would not be enough because the

Supreme Court has held a number of errors not to be structural, even where the

error may have prevented or discouraged the defendant from putting forward

additional evidence or arguments. For example, in Carella v. California, 491 U.S.

263, 266, 109 S. Ct. 2419, 2421 (1989), the error was application of a conclusive

presumption about the element of intent, and in Neder, 527 U.S. at 14–15, 119 S.

Ct. at 1836–37, the error was taking an element of the crime away from the jury.

In both of those cases, the error may have influenced the evidence the defendants

put forward or the arguments they made. Nonetheless, the Supreme Court held

implicitly in Carella and explicitly in Neder that the error was not structural.

The same is true when constitutional error is committed by precluding

20
lesser included offenses in capital cases. A defendant prevented by state law from

having the jury consider a lesser offense very well might refrain from putting

forward evidence that he was guilty of it instead of the greater offense. Be that as

it may, the Supreme Court in Hopper v. Evans determined that this type of

constitutional error is not structural and affirmed the conviction because the

unconstitutional preclusion provision had no prejudicial effect in that case. 456

U.S. 605, 613–14, 102 S. Ct. 2049, 2054 (1982) (rejecting the argument that the

preclusion provision “so infected respondent’s trial that he must be retried” and

reversing the grant of relief because that provision did not prejudice the

respondent).

For the reasons just discussed, it would not be enough to make Booker error

structural if defendants in pre-Booker sentencing proceedings had no incentive to

introduce mitigating evidence or arguments relating to § 3553(a) factors.

However, Judge Tjoflat’s structural theory does depend on the assumption that

before Booker there was no such incentive, while the reality is that there was.

This is yet another problem with his theory. The assumed lack of incentive is his

theory’s explanation for why the pre-Booker sentencing record in any given case

would not contain evidence indicating the presence of any § 3553(a) factors that

might make a difference in the post-Booker advisory sentencing regime.

21
Defendants in pre-Booker sentencing proceedings lacked any incentive to offer §

3553(a) evidence or argument, Judge Tjoflat says, because it would have been

irrelevant unless it fit within a permissible ground for downward departure, which

not all § 3553(a) factors do. Tjoflat, J., dissenting, at 62.

Chief Judge Boggs of the Sixth Circuit has pointed out the flaw in this

argument:

This argument ignores a fundamental feature of the Guidelines: they
present a sentencing court with a range, from which it must select a
sentence. In this case the range was nearly five years—57 months. Counsel
already had every reason and every opportunity to present any mitigating
circumstance that might possibly have saved Barnett from an additional five
years in prison. Any arguments that might be raised post-Booker about
culpability, future dangerousness, offsetting good works, family obligations,
or any other mitigating circumstance were also fair game pre-Booker, and
these arguments for mitigation have been regularly invoked by defense
counsels in pre-Booker sentencing proceedings. United States v.
Riascos-Suarez, 73 F.3d 616, 627–28 (6th Cir. 1996) (finding reversible
error when the defendant was not offered the opportunity to give mitigating
evidence at sentencing). The Guidelines never placed any limits on the
ability of the district court to consider these factors, so there is no reason to
remand so the district court may consider additional circumstances.

United States v. Barnett, 398 F.3d 516, 537–38 (6th Cir. 2005) (Boggs, C.J.,

concurring in part and dissenting in part); see also Gonzalez-Huerta, 2005 WL

807008, at *6. That’s a good point.

For example, in this case the guidelines range was 97 to 121 months, a

spread of two full years. Rodriguez, 398 F.3d at 1296. In our Shelton case, the

22
guidelines range was effectively 190 to 222 months, a spread of more than two-

and-a-half years. 400 F.3d at 1328. The guideline ranges in Rodriguez and

Shelton exemplify the fact that most pre-Booker sentencing defendants, including

the one in this case, had plenty of incentive to put forth mitigating evidence and

arguments relating to the § 3553(a) factors. Those factors were not, as Judge

Tjoflat suggests, “irrelevant in all but the most unusual cases” in pre-Booker

sentencing. Tjoflat, J., dissenting, at 62. To the contrary, they were relevant in

virtually every case. (The Duncan case exemplifies the exception, because there

the guidelines dictated a life sentence. 400 F.3d at 1300 n.2.).

Judge Tjoflat says that “we must assume, if anything, that a defendant such

as Rodriguez would have done something different under the new model.”

Tjoflat, J., dissenting, at 65-66. There is no justification for that assumption,

especially with a defendant such as Rodriguez who had two years worth of

incentive built into the guidelines range to come forward with any § 3553(a)

evidence or arguments at his pre-Booker sentencing proceeding. Even if we were

to disregard the guidelines range incentive, the crucial assumption behind Judge

Tjoflat’s structural theory ignores the fact that, if the guidelines had been only

advisory, the probation officer in compiling the PSR and the government in

advocating a longer sentence could have put forth evidence and arguments that the

23
§ 3553(a) factors favored a sentence above the guideline range. The question is

not what the defendant would have done. The question is what the district court

would have done after hearing the evidence and arguments of both sides.

There is no basis for any assumption that the differences between an

advisory and a mandatory guidelines system will favor defendants in general or,

more importantly, a particular defendant. The fact is that in most cases, as in

Rodriguez, 398 F.3d at 1301, we just don’t know. But there are cases like Shelton,

400 F.3d at 1332–33, where the record shows a reasonable probability of a

different result in favor of the defendant if the guidelines had not been mandatory.

That is why we sent that case back for resentencing. Where, however, we have no

indication either way, the party with the burden loses. Rodriguez, 398 F.3d at

1301. When it comes to the third prong of the plain error test, that party is the

defendant. Id.

II.

Judge Tjoflat is correct about the Fourth and Sixth Circuits’ approach to this

issue being wrong. See Tjoflat, J., dissenting, at 78 n.19 (citing United States v.

Hughes, ___ F.3d ___, 2005 WL 628224 (4th Cir. Mar. 16, 2005), and United

States v. Oliver, 397 F.3d 369 (6th Cir. 2005)). As he explains, it is simply

inaccurate to say, as those two circuits do, a defendant has carried his burden of

24
showing that a Booker error has affected his substantial rights when we can only

guess what the result would be without the error. Id. Instead of saying that there

is a burden and then applying it in a way that is not burdensome, it is more

forthright to argue directly, as Judge Tjoflat does, that the burden ought not exist.

See id. (“In short, these courts require the defendant to show that his substantial

rights were affected only to find that they were in every case involving

constitutional error, whereas I would simply say that no such showing is

required.”). For the reasons already discussed, this Court did not adopt Judge

Tjoflat’s approach, but at least his reasoning has the virtue of analytical

transparency.

Since our Rodriguez opinion, the Fourth Circuit panel that issued the

original Hughes decision has taken another look at it. That second look resulted in

the issuance of a new opinion that reaches the same conclusion. See Hughes, 2005

WL 628224. We have already discussed at some length the flaws in the reasoning

on display in the first Hughes opinion, Rodriguez, 398 F.3d at 1301–04, but the

new opinion illuminates those flaws in ways that warrant additional comment. See

also United States v. Coles, ___ F.3d ___, 2005 WL 783069, *4 (D.C. Cir. Apr. 8,

2005) (per curiam) (discussing the problems with the Hughes approach and

concluding that it “flies in the face of the Supreme Court’s remedial order in

25
Booker”).

There is no longer any reason to doubt that the Fourth Circuit’s erroneous

approach has at its core the premise that the mandatory nature of the guidelines is

not an essential part of a Booker constitutional violation. This is the paragraph of

its new Hughes opinion that lays bare the substructure of its reasoning:

Stated differently, the act of mistakenly treating the guidelines as
mandatory is not part of the Sixth Amendment error before us, despite the
fact that the former mandatory nature of the guidelines set the stage for the
constitutional violation in Booker. That the erroneous treatment of the
guidelines as mandatory is not part of the constitutional error can be seen
most clearly in a post-Booker context. Suppose a district court,
post-Booker, erroneously treats the guidelines as mandatory when imposing
a sentence that rests in part on extra-verdict enhancements. Such a sentence
would certainly be erroneous, but there would be no Sixth Amendment error
because, regardless of what the district court thought, the guidelines
post-Booker are in fact advisory and the sentence imposed did not exceed
the maximum authorized by the jury verdict (which is, of course, the
maximum set forth in the statute of conviction).

Hughes, 2005 WL 628224, at *11; see also id. at *10 (There is “a separate class of

error, namely, the error of treating the guidelines as mandatory at sentencing.

Such an error is distinct from the Sixth Amendment claim that gave rise to the

decision in Booker, and it is non-constitutional in nature.”). Wrong, wrong,

wrong.

Treating the guidelines as mandatory is an essential part of the

constitutional error, not a non-constitutional error distinct from the one involved

26
in the Booker decision. The Supreme Court was unanimous about that. All nine

Justices joined one or both of the majority opinions, each of which stated that the

use of extra-verdict enhancements in an advisory regime is permissible and that if

the guidelines are not applied mandatorily there is no constitutional error. Booker,

543 U.S. at ___, 125 S. Ct. at 750 (Stevens, J., maj. op.) (“If the Guidelines as

currently written could be read as merely advisory provisions that recommended,

rather than required, the selection of particular sentences in response to differing

sets of facts, their use would not implicate the Sixth Amendment.”); id. at 764

(Breyer, J., maj. op.) (“[W]ithout this provision—namely the provision that makes

the relevant sentencing rules mandatory and imposes binding requirements on all

sentencing judges—the statute falls outside the scope of Apprendi’s requirement.”

(internal quotation and markings omitted)). The Hughes opinion manages to reject

the one principle that all nine Justices agreed on in Booker. Admittedly, the

Justices did not add to their statements “. . . and we really mean it,” but what else

short of that could the Court have said to convey that it was serious?

The hypothetical laid out in the part of the Hughes opinion quoted earlier

highlights that Court’s misunderstanding of Booker. If a district court in the post-

Booker world applies an extra-verdict enhancement and treats the guidelines as

mandatory, of course the resulting sentence will be unconstitutional. The violation

27
and its impact on the defendant will be identical to what occurred in the Booker

case itself. That the constitutional violation and its impact occurs not in obedience

to a statutory mandate but as a result of ignorance, negligence, or defiance does

not make it any less a constitutional violation. Constitutional error can be

committed free of statutory command. The effect, if any, on the defendant is the

same if the same act is committed in the same circumstances regardless of the

source of the error. If the guidelines are applied in a mandatory way when there

are extra-verdict enhancements, the result is a pattern-perfect Booker

constitutional violation.

The Fourth Circuit’s disregard of what the Supreme Court said in Booker

about the mandatory application of the guidelines being the source of the

constitutional violation led that circuit to give the wrong answer to the question it

posed in the latest Hughes opinion. The prejudice inquiry, Hughes says, “is

whether the district court could have imposed the sentence it did without

exceeding the relevant Sixth Amendment limitation. If the answer to this inquiry

is ‘yes,’ . . . then the defendant has failed to demonstrate an effect on substantial

rights . . . .” Hughes, 2005 WL 628224, at *8. The answer, of course, is “yes.”

The district court could have applied the same extra-verdict enhancement and

imposed the same sentence it did without violating the Sixth Amendment by

28
consulting the guidelines but treating them as advisory. That non-mandatory

application of the guidelines would have violated the Sentencing Reform Act as it

then existed, specifically 18 U.S.C. § 3553(b)(1), but it would not have violated

the Sixth Amendment. That is why the Supreme Court’s Booker decision instructs

district courts to find and apply any extra-verdict enhancements in future cases but

to treat the resulting guidelines range as advisory.

In addition to resting on a premise that is contrary to the stated belief in the

Booker decision of every single Justice, the Fourth Circuit never adequately

explains why the decision about whether a particular defendant has been

prejudiced should not turn on the one factor that will be changed on remand in

order to avoid the constitutional violation. It never tells us how its rule about the

third prong of the plain error test serves the main purpose of the prong’s prejudice

requirement, which is to avoid wasteful reversals. See Dominguez Benitez, 542

U.S. at ___, 124 S. Ct. at 2340 (application of the prejudice standard “should

enforce the policies that underpin Rule 52(b) generally, to encourage timely

objections and reduce wasteful reversals by demanding strenuous exertion to get

relief for unpreserved error”). By divorcing the question of whether to reverse

from the question of what would change on remand, the Fourth Circuit’s Hughes

rule does not avoid wasteful reversals but is instead an engine for generating them.

29
 III.

While cheering on Judge Tjoflat’s efforts to construct a structural error

theory, Judge Barkett’s dissenting opinion also suggests that the Court has applied

the wrong prejudice standard in these post-Booker plain error cases, or perhaps

that we applied the correct standard in the wrong way. To the contrary, we have

applied the correct standard correctly.

This is what we said in the panel opinion:

The third prong of the plain error test, however, is another matter. It
requires that an error have “affect[ed] substantial rights,” which almost
always requires that the error “‘must have affected the outcome of the
district court proceedings.’” Cotton, 535 U.S. at 632, 122 S. Ct. at 1786
(quoting Olano, 507 U.S. at 734, 113 S. Ct. at 1778). The standard for
showing that is the familiar reasonable probability of a different result
formulation, which means a probability “‘sufficient to undermine
confidence in the outcome.’” United States v. Dominguez Benitez, ___ U.S.
___, 124 S. Ct. 2333, 2340 (2004) (quoting Strickland v. Washington, 466
U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)). In regard to this third prong,
“[i]t is the defendant rather than the [g]overnment who bears the burden of
persuasion with respect to prejudice.” Olano, 507 U.S. at 734, 113 S. Ct. at
1778.

Rodriguez, 398 F.3d at 1299. We repeated and applied the reasonable probability

of a different result standard—not a preponderance standard—at least five more

times throughout our opinion. See id. at 1301 (“Therefore, in applying the third

prong, we ask whether there is a reasonable probability of a different result if the

guidelines had been applied in an advisory instead of binding fashion by the

30
sentencing judge in this case.” (emphasis added)); id. (“[W]here the effect of an

error on the result in the district court is uncertain or indeterminate—where we

would have to speculate—the appellant has not met his burden of showing a

reasonable probability that the result would have been different but for the error;

he has not met his burden of showing prejudice; he has not met his burden of

showing that his substantial rights have been affected.” (emphasis added)); id. at

1302 (“The important function of the third prong of the plain error test is to

prevent a remand for additional proceedings where the defendant, who failed to

make a timely objection, cannot show that there is a reasonable probability that a

do-over would more likely than not produce a different result.” (emphasis added));

id. (“Therefore in order to satisfy the third prong of the plain error test, pre-Booker

defendants must establish a reasonable probability that if the district court had

considered the guidelines range it arrived at using extra-verdict enhancements as

merely advisory, instead of mandatory, and had taken into account any otherwise

unconsidered § 3553 factors, the court would have imposed a lesser sentence than

it did.” (emphasis added)); id. at 1304 (“As we have explained, where the record

does not provide ‘any indication’ that there would have been a different sentence

if the court had recognized and exercised its § 3553(a) discretion and treated the

guidelines range as merely advisory, the party with the burden of showing a

31
reasonable probability of a different result loses.” (emphasis added)).

The difference in views between this Court and Judge Barkett is not about

the standard to apply. We all agree that the reasonable probability standard

applies. The difference is how that standard applies when we cannot tell whether

the error caused prejudice. The Court’s position, which is set out in Rodriguez,

Curtis, and Duncan, is that the defendant loses in this situation. That is so

because the burden is on the defendant, and the Supreme Court in Jones v. United

States, 527 U.S. 373, 119 S. Ct. 2090 (1999), told us that when we cannot tell

whether the error caused prejudice the defendant loses.

Judge Barkett does not dispute that the defendant has the burden of showing

prejudice; she just says that it does not really amount to any burden at all. Her

view is that once there is error, the defendant carries his burden of establishing

prejudice by showing that we don’t know if the error prejudiced him. Barkett, J.,

dissenting, at 82-83. In other words, nothing equals something; the burden is no

burden at all. The adjective “oxymoronic” does not do justice to this “no-burden

burden” concept.

Aside from robbing a perfectly good word (“burden”) of its plain meaning,

this key premise of Judge Barkett’s position is also contrary to a number of our

prior decisions applying the reasonable probability of a different result standard.

32
See Straight v. Wainwright, 772 F.2d 674, 680 (11th Cir. 1985) (defendant fails to

carry his burden of showing a reasonable probability of a different result where

“[t]here is absolutely no evidence” on the issue); Henry v. Wainwright, 743 F.2d

761, 763 (11th Cir. 1984) (per curiam) (where there is nothing to show that an

omitted instruction would have applied to the jury’s deliberations, there is

“nothing upon which a finding of prejudice could be based,” and the existence of

“only a possibility of prejudice” is not enough to satisfy the defendant’s burden of

showing a reasonable probability of a different result); Adams v. Wainwright, 764

F.2d 1356, 1369 (11th Cir. 1985) (where there is no proof on the issue, the

defendant has failed to carry his burden of showing a reasonable probability of a

different result).

More importantly, Judge Barkett’s position cannot be reconciled with the

specific holding and instruction of the Supreme Court’s decision in Jones. As we

explained in the panel opinion, Jones is directly applicable to plain error third-

prong situations in which it is unclear what effect, if any, the error had.

Rodriguez, 398 F.3d at 1301. The Jones decision came in a capital case where the

defendant had failed to object in the district court to the omission of a jury

instruction about the consequences of a deadlock on the sentence issue. In

rejecting the defendant’s plain error argument, the Supreme Court explained that

33
the situation was one in which it could not be determined what effect, if any,

omission of that instruction had on the outcome of the capital sentence proceeding.

It instructed us that where the effect of an error may as likely have cut one way as

the other, where the effect it had on the outcome is indeterminate, the “defendant

cannot meet his burden of showing that the error actually affected his substantial

rights.” 527 U.S. at 394–95, 119 S. Ct. at 2105. We are not to speculate in this

kind of situation. The defendant loses because the defendant has the burden. Id.;

see also Rodriguez, 398 F.3d at 1300 (“The lesson of the Supreme Court’s Jones

decision is that the burden truly is on the defendant to show that the error actually

did make a difference . . . . Where errors could have cut either way and

uncertainty exists, the burden is the decisive factor in the third prong of the plain

error test, and the burden is on the defendant.”).5

5
The Court in Jones was faced with the question of whether the defendant, who failed to
properly preserve his objection, was entitled to a new sentence proceeding because of the district
court’s failure to give a jury instruction. 527 U.S. at 387–88, 119 S. Ct. at 2101–02. The Court
held that the error the defendant claimed was not plain error for two alternative reasons. It was
not plain error because the jury instructions were not error, id. at 389–90, 119 S. Ct. at 2102, and
also because the defendant had failed to carry his burden of satisfying the third prong of the plain
error test by showing that the failure to give the additional instructions had prejudiced him, id. at
394–95, 119 S. Ct. at 2105.
The Supreme Court’s decision in Jones that the defendant had failed to make the required
showing of prejudice for plain error purposes provided as much support for the result in that case,
which was affirmance of the sentence, as did its decision that there was no error. Either holding
would have been adequate. Each is an alternative holding, and each alternative holding is
binding. See Massachusetts v. United States, 333 U.S. 611, 623, 68 S. Ct. 747, 754 (1948);
Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 340, 48 S. Ct. 194, 196 (1928) (“It
does not make a reason given for a conclusion in a case obiter dictum, because it is only one of

34
 Judge Barkett apparently does not dispute that the rule stated in Jones would

compel a finding that Rodriguez has failed to satisfy the third-prong of the plain

error test. Instead, her position is that we need not and should not follow the

Supreme Court’s decision in Jones. She gives several reasons, none of which are

persuasive.

Judge Barkett argues that what the Supreme Court said in Jones is “in direct

conflict” with what it said later in United States v. Dominguez Benitez, 542 U.S.

74, 124 S. Ct. 2333 (2004). Barkett, J., dissenting, at 86. There is no conflict,

direct or indirect. Even if there were, we would be required to follow the more

specific commandment from the Jones case. All that Dominguez Benitez held is

that the third-prong prejudice standard requires the defendant to show a reasonable

probability of a different result, which means a probability sufficient to undermine

confidence in the outcome of the proceeding. 542 U.S. at ___, 124 S. Ct. at

2338–40. The decision did not hold or say anything about what the result of

applying that standard should be where there is no indication whether the error

actually did have an adverse effect on the outcome of the proceeding. The Court

two reasons for the same conclusion.”); United States v. Title Ins. & Trust Co., 265 U.S. 472,
486, 44 S. Ct. 621, 623 (1924); Union Pac. Ry. Co. v. Mason City & Fort Dodge Ry. Co., 199
U.S. 160, 166, 26 S. Ct. 19, 20 (1905); Johnson v. DeSoto County Bd. Comm’rs, 72 F.3d 1556,
1562 (11th Cir. 1996) (“we are bound by alternative holdings”); McLellan v. Mississippi Power
& Light Co., 545 F.2d 919, 925 n.21 (5th Cir. 1977) (en banc) (“It has long been settled that all
alternative rationales for a given result have precedential value.”).

35
remanded the Dominguez Benitez case to the court of appeals for application of

the standard. Id. at ___, 124 S. Ct. at 2342.

By contrast, in Jones this very issue was presented, addressed, and decided.

The Supreme Court could not have been more specific in telling us that where the

error just as likely could have worked in the defendant’s favor as against him,

where the effect is indeterminate, where we simply cannot tell, the defendant has

failed to carry his burden on the third prong of the plain error test. Dominguez

Benitez states the general standard, and Jones speaks to a specific situation, the

one before us in most of the pre-Booker sentence cases. The two decisions are not

in conflict.

Reduced to its essence, Judge Barkett’s theory for disregarding the direct

application of Jones is that it was implicitly overruled by the later decision in

Dominguez Benitez, a premise based on her belief that Jones rests on reasons

rejected in Dominguez Benitez. The problem with her approach is that the

Supreme Court has repeatedly told us not to take it. The Court has instructed us:

“If a precedent of this Court has direct application in a case, yet appears to rest on

reasons rejected in some other line of decisions, the Court of Appeals should

follow the case which directly controls, leaving to this Court the prerogative of

overruling its own decision.” Rodriguez de Quijas v. Shearson/Am. Express, Inc.,

36
490 U.S. 477, 484, 109 S. Ct. 1917, 1921–22 (1989); see also Tenet v. Doe, 544

U.S. ___, ___, 125 S. Ct. 1230, 1237 (2005) (quoting Shearson/Am. Express, Inc.,

490 U.S. at 484, 109 S. Ct. at 1921–22); Am. Trucking Ass’ns, Inc. v. Smith, 496

U.S. 167, 180, 110 S. Ct. 2323, 2332 (1990) (plurality op.) (same); Agostini v.

Felton, 521 U.S. 203, 237, 117 S. Ct. 1997, 2017 (1997) (“We do not

acknowledge, and we do not hold, that other courts should conclude our more

recent cases have, by implication, overruled an earlier precedent.”); Hohn v.

United States, 524 U.S. 236, 252–53, 118 S. Ct. 1969, 1978 (1998) (“Our

decisions remain binding precedent until we see fit to reconsider them, regardless

of whether subsequent cases have raised doubts about their continuing vitality.”).

We have been careful to heed the Supreme Court’s admonition about

following its decisions until that Court explicitly overrules them. See Fla. League

of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462 (11th Cir. 1996) (“We take

this admonition to heart, and we decline to take any step which might appear to

overrule [prior Supreme Court decisions].”); Eng’g Contractors Ass’n of S. Fla.

Inc. v. Metro. Dade County, 122 F.3d 895, 908 (11th Cir. 1997) (“Of course, we

take that admonition seriously.”); Scala v. City of Winter Park, 116 F.3d 1396,

1399 n.2 (11th Cir. 1997) (heeding the admonition and following an earlier

Supreme Court decision even though later decisions of the Court had “cast some

37
doubt” on it); Brisentine v. Stone & Webster Eng’g Corp., 117 F.3d 519, 525

(11th Cir. 1997) (“It may be that the Supreme Court has cut [an earlier decision]

back so far that it will not survive. Perhaps, but we are not convinced we are

authorized to sing the dirge of [that earlier decision]. We will leave that to the

Supreme Court, which has admonished courts of appeals [to do so].”). Likewise,

the panel has heeded the Supreme Court’s admonition in this case. Failure to do

so would not be reasoning, it would be rebellion.

Judge Barkett also argues that our approach violates the Federal Sentencing

Act’s direction that the district court should determine in the first instance the

sentence that should be imposed. Barkett, J., dissenting, at 89. Not so. The

district court has determined in the first instance the sentence in all pre-Booker

sentence cases. The question now is not what the defendant’s sentence should be,

but whether the defendant has carried his burden of establishing the prejudice

required by the third prong of the plain error test.

Judge Barkett’s argument that Williams v. United States, 503 U.S. 193, 205,

112 S. Ct. 1112, 1121 (1992), requires that we disregard the lack of a prejudice

showing is also unpersuasive. The Williams decision involved preserved error. It

did not purport to hold that the contemporaneous objection rule was inapplicable

to sentencing errors. It did not say that the plain error rule was different for

38
sentencing cases. It did, however, note that the harmless error rule applies to

sentence errors, id. at 203, 112 S. Ct. at 1120–21, which is inconsistent with the

notion that sentencing errors require remand regardless of ordinary prudential

doctrines.6

IV.

Neither Judge Tjoflat nor Judge Barkett proposes that this Court adopt the

Second, Seventh, and D.C. Circuits’ novel approach to third-prong prejudice

determinations. See United States v. Crosby, 397 F.3d 103 (2d Cir. 2005); United

States v. Williams, 399 F.3d 450 (2d Cir. 2005); United States v. Paladino, 401

F.3d 471 (7th Cir. 2005); United States v. Coles, ___ F.3d ___, 2005 WL 783069

(D.C. Cir. Apr. 8, 2005) (per curiam). Although unwilling to embrace that

approach, Judge Tjoflat takes some comfort in the Seventh Circuit’s criticism of

our application of conventional plain error analysis. See Tjoflat, J., dissenting, at

6
Judge Barkett argues in a footnote that this Court’s Booker plain error position is
somehow inconsistent with a footnote in United States v. Fuente-Kolbenschlag, 878 F.2d 1377,
1379 n.7 (11th Cir. 1989) (per curiam). Barkett, J., dissenting, at 91 n.9. It is not. The
defendant in that case had raised the alleged error by timely, specific objection during sentencing.
The opinion in the case could not have decided, and did not purport to say anything about, what
happens when there is a failure to object. At most Fuente-Kolbenschlag stands for the
unremarkable proposition that in a case of preserved error the fact that overlapping ranges might
have resulted in the same sentence being imposed anyway did not insulate the error from review
on appeal. See Fuente-Kolbenschlag, 878 F.2d at 1379 n.7. That is another way of saying that if
we don’t know what would have happened but for the error, the party with the burden on the
prejudice issue loses. (In Fuente-Kolbenschlag that party was the government, but it won
anyway because there was no error. Id. at 1378–79.)

39
63 (“Or, as the Seventh Circuit put it, I ‘cannot fathom why the Eleventh Circuit

wants to condemn some unknown fraction of criminal defendants to serve an

illegal sentence.’” (quoting Paladino, 401 F.3d at 484)). Only three of the eleven

circuits that have taken a position on the proper way to decide whether plain error

exists in pre-Booker situations have chosen the Crosby/Paladino model.

What the Second, Seventh, and D.C. Circuits do is remand every pre-

Booker sentence (where the defendant wants a remand) in which it is not clear that

the unpreserved Booker error was harmless. Williams, 399 F.3d at 460 (“We

remanded only after we determined that, on the record in Crosby, we could not say

with sufficient confidence that the same sentence would have been imposed.”);

Paladino, 401 F.3d at 484 (describing the court’s intention to remand in those

“Booker cases in which it is difficult for us to determine whether the error was

prejudicial”); Coles, 2005 WL 783069, at *1 (same).

In the Second Circuit, if the district court determines on remand that it

would have sentenced the defendant to less time under Booker, it is to pronounce

that plain error exists, set aside the prior judgment, and proceed to conduct the real

resentence proceeding. See Crosby, 397 F.3d at 117–18, 120; Williams, 399 F.3d

at 459–61. But if the defendant fails to get the appellate relief he is seeking in the

district court, he apparently is free to appeal to the real appellate court urging it to

40
reverse the district court’s third-prong plain error determination. And if the

district court decides that it would have sentenced the defendant differently and

does so, the government apparently can appeal that determination as well as any

additional errors embedded in the new sentence. Crosby, 397 F.3d at 119.

The Seventh Circuit’s procedure is similar, except that it formally retains

jurisdiction of the case during the remand and will be the court that actually

vacates the pre-Booker sentence following the district court’s determination that it

would have reached a different result under the Booker regime. See Paladino, 401

F.3d at 484. Then the case will go back down for the actual resentencing. Id.

While retaining for itself the responsibility to enter the order vacating the initial

sentence after remand, it is only a pro forma reservation in the sense that the actual

decision making will be vested entirely in the district court. See id. (“Under our

procedure, since we retain jurisdiction throughout the limited remand, we shall

vacate the sentence upon being notified by the judge that he would not have

imposed it had he known that the guidelines were merely advisory.”). The D.C.

Circuit’s procedure is identical to the Seventh’s. See Coles, 2005 WL 783069, at

*7.

The Crosby/Paladino model essentially delegates to the district court the

appellate function of determining whether there is prejudice necessary for

41
correction of unpreserved error. There is no basis in any of the relevant Supreme

Court decisions for that delegation, and every indication is that we should make

the decision at the appellate level from the record as it exists. The language of

those decisions, to the extent they touch on the matter, indicates what one would

assume, which is that determining whether plain error exists is an appellate

function to be decided from the record on appeal, not something to be decided by

the district court after remand. See Dominguez Benitez, 542 U.S. at ___,124 S.

Ct. at 2340 (“[Under plain error review, a] defendant must . . . satisfy the judgment

of the reviewing court, informed by the entire record, that the probability of a

different result is sufficient to undermine confidence in the outcome of the

proceeding.” (internal quotation omitted)); United States v. Vonn, 535 U.S. 55, 59,

122 S. Ct. 1043, 1046 (2002) (“[A] silent defendant has the burden to satisfy the

plain-error rule and . . . a reviewing court may consult the whole record when

considering the effect of any error on substantial rights.”); see also Gonzalez-

Huerta, 2005 WL 807008, at *3 n.4 (concluding that the Crosby/Paladino

procedure is “inconsistent with plain error doctrine”).

The emotional punch behind the Seventh Circuit’s criticism of our approach

derives from its charge that we are “condemn[ing] some unknown fraction of

criminal defendants to serve an illegal sentence.” Paladino, 401 F.3d at 484. That

42
charge defines “illegal sentence” as one in which a decision that would otherwise

result in reversal is not applied in a case because of the contemporaneous

objection rule. By equating enforcement of the contemporaneous objection rule,

and the recognition that the plain error exception is “circumscribed,” Jones, 527

U.S. at 389, 119 S. Ct. at 2102, and should be exercised “sparingly,” id., with

countenancing illegality, the charge proves too much. In every criminal case in

which it matters that the contemporaneous objection rule was applied, and there

have been thousands of cases where it has mattered, some defendant under this

view will have been condemned to serve an “illegal sentence” or, worse still, will

have been condemned to suffer an “illegal conviction.”

If “illegality” is defined this way and the goal is to prevent “illegal”

sentences and convictions, the only way to achieve that goal is to abolish the

contemporaneous objection rule. Not just in Booker error cases but in all criminal

cases. We also will have to abolish and repeal the procedural bar doctrine which a

half century of decisional law and federal statutory development has put into

place. After all, by applying that doctrine, as we do in countless cases, we are

condemning some unknown fraction of criminals to serve “illegal” sentences or to

suffer from “illegal” convictions. And what of the thousands of prisoners

condemned to suffer sentences that violate the Sixth Amendment under Booker,

43
because their cases finished the direct review process before that decision was

announced instead of afterwards. No circuit, including the Seventh, has yet to

suggest that Booker is retroactively applicable to collateral proceedings, and in

light of Schriro v. Summerlin, 542 U.S. ___, 124 S. Ct. 2519 (2004), it is highly

unlikely that any will. The only way to rescue all of those prisoners from their

“illegal sentences” is to throw out the Teague decision and its progeny. See

Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989). The parts of the AEDPA

that are found in 28 U.S.C. § 2255 ¶¶ 6 & 8 probably will have to go as well.

Only when all of these decisional and statutory doctrines and the important values

they serve are thrown on the trash heap will we be able to reduce the numerator of

that unknown fraction of defendants suffering from “illegal” convictions or

serving “illegal” sentences to zero.

Our legal system does not simply require that the government comply with

the Constitution. It also makes parties, defendants as well as the government,

comply with procedural rules, such as the contemporaneous objection rule, on pain

of forfeiting legal rights they could otherwise enforce. Requiring rights to be

asserted in a timely and appropriate fashion furthers interests that are vital to the

proper functioning of our judicial system. See Wainwright v. Sykes, 433 U.S. 72,

90, 97 S. Ct. 2497, 2508 (1977); United States v. Pielago, 135 F.3d 703, 709

44
(11th Cir. 1998); Esslinger v. Davis, 44 F.3d 1515, 1525 & n.36 (11th Cir. 1995);

United States v. Sorondo, 845 F.2d 945, 948–49 (11th Cir. 1988). The narrowness

of the plain error exception to the contemporaneous objection rule reflects the

importance of those interests. Broadening that exception, or constructing ways to

circumvent its restrictions on an issue-by-issue basis, lessens the effect of the rule

and undermines the interests it serves.

If the matter is to be addressed in “illegality” terms, then put it this way:

Failure of a defendant to comply with clear procedural rules during the judicial

process is itself a type of illegality that may block consideration of his claim that

he has suffered an illegality.

45
TJOFLAT, Circuit Judge, dissenting from the denial of rehearing en banc:

A jury in the United States District Court for the Middle District of Florida

convicted Vladimir Rodriguez for distributing, or possessing with the intent to

distribute, a “detectable amount” of MDMA, also known as ecstasy, in violation of

21 U.S.C. § 841(a)(1), and for conspiring to do the same, in violation of 21 U.S.C.

§ 846. At sentencing, the district court initially set Rodriguez’s base offense level

at 30 based on its own determination that the offense involved 30,000 ecstasy

tablets. It then added two levels because Rodriguez testified falsely under oath

during his trial that he had no involvement in the offenses for which he was

convicted, U.S.S.G. § 3C1.1, and awarded a two-level reduction based on

Rodriguez’s minor role in the offense, U.S.S.G. § 3B1.2(b). Because Rodriguez

had no prior convictions, his guideline sentencing range was 97 to 121 months in

prison. The court imposed a sentence of 109 months in prison.

After Rodriguez was sentenced, the Supreme Court held that the Federal

Sentencing Guidelines violate the Sixth Amendment right to a trial by jury to the

extent that they permit a judge to increase a defendant’s sentence based on facts

that are neither found by the jury nor admitted by the defendant. United States v.

Booker, __ U.S. __, 125 S. Ct. 738, 756, 160 L. Ed. 2d 621 (2005). To remedy

this constitutional defect, the Court declared “the Guidelines effectively advisory.”

46
Id. at 757. As a result, a sentencing court must still “consider Guidelines ranges,”

but it may “tailor the sentence in light of other statutory concerns as well.” Id.

(citing 18 U.S.C. § 3553(a)). We review sentences imposed under this new model

for “reasonableness” only. Id. at 765-67; see also McReynolds v. United States,

397 F.3d 479, 481 (7th Cir. 2005) (“District judges must [apply the Sentencing

Guidelines] as guidelines, with appellate review to determine whether that task has

been carried out reasonably.”).

Because Rodriguez did not raise a constitutional objection at sentencing, the

Booker claim he raises on appeal must pass the “‘plain-error’ test.” Booker, 125

S. Ct. at 769. In general, this requires the defendant to show that “(1) an error

occurred, (2) the error was plain, (3) the error affected substantial rights, and (4)

the error seriously affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005)

(citing United States v. Olano, 507 U.S. 725, 732-36, 113 S. Ct. 1770, 1777-79,

123 L. Ed. 2d 508 (1993)). Under Booker, it is clear that error occurred, and that

error is now plain. The panel holds, however, that Rodriguez fails the plain-error

test because he cannot show that his substantial rights were affected. The panel

does not suggest that Rodriguez’s substantial rights were not affected; rather, it

rejects his claim because “[w]e just don’t know” what sentence he would have

47
received if the district court had treated the Guidelines as advisory only. United

States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005).

The panel’s error is its failure to recognize that Booker error of a

constitutional dimension is one of a “very limited class” of “structural errors.”

Johnson v. United States, 520 U.S. 461, 468-69, 117 S. Ct. 1544, 1549-50, 137 L.

Ed. 2d 718 (1997).1 “Each of these constitutional deprivations is a . . . structural

defect affecting the framework within which the trial proceeds, rather than simply

an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310, 111

S. Ct. 1246, 1265, 113 L. Ed. 2d 302 (1991). Because structural error affects the

framework of the trial itself, its “consequences . . . are necessarily unquantifiable

and indeterminate.” Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S. Ct. 2078,

2083, 124 L. Ed. 2d 182 (1993).2 As such, structural errors “defy analysis by

‘harmless-error’ standards” and are per se reversible if an objection is made at

trial. Fulminante, 499 U.S. at 309, 111 S. Ct. at 1265.

1
This “very limited class” includes (1) a total deprivation of the right to counsel, (2) the
lack of an impartial trial judge, (3) the unlawful exclusion of grand jurors of the defendant’s race,
(4) the denial of the right to self-representation at trial, (5) the denial of the right to a public trial,
and (6) an erroneous reasonable-doubt instruction. Johnson, 520 U.S. at 468-69, 117 S. Ct. at
1549-50.
2
In contrast, the Court has described ordinary “trial error” as “error which occurred
during the presentation of the case to the jury, and which may therefore be quantitatively assessed
in the context of other evidence presented in order to determine whether its admission was
harmless beyond a reasonable doubt.” Fulminante, 499 U.S. at 307-08, 111 S. Ct. at 1264.

48
 A harmless error is simply “[a]ny error . . . that does not affect substantial

rights.” Fed. R. Crim. P. 52(a). As such, the Supreme Court has said that

harmless-error analysis and the substantial-rights prong of the plain-error test

essentially “require[] the same kind of inquiry.” Olano, 507 U.S. at 734, 113 S.

Ct. at 1778 (stating that there is only “one important difference: It is the defendant

rather than the Government who bears the burden of persuasion with respect to

prejudice” under the plain-error test). Therefore, if structural errors “defy

analysis” by harmless-error standards, they must also defy analysis under the third

prong of the plain-error test. It would make no sense to say that the same

prejudice inquiry that is impractical as harmless-error analysis is somehow

practical under the plain-error test. Structural errors are not per se reversible in the

plain-error context because a defendant who fails to object at trial must still satisfy

the second and fourth prongs of the plain-error test. But it is clear that it makes no

more sense to require a case-specific showing of prejudice under the plain-error

test than it does under the harmless-error standard.

A Booker error that involves an actual Sixth Amendment violation is a

structural error. Booker dramatically alters the very “framework within which

[sentencing] proceeds,” Fulminante, 499 U.S. at 310, 111 S. Ct. at 1265, and the

effect of Booker error is “necessarily unquantifiable and indeterminate,” Sullivan,

49
508 U.S. at 281-82, 113 S. Ct. at 2083. Moreover, the logical implication of the

concluding paragraph of the Booker remedial opinion is that “cases . . . involving

a Sixth Amendment violation,” Booker, 125 S. Ct. at 769, are not subject to the

harmless-error doctrine and, therefore, must involve structural error. See infra

Part I. For these reasons, I disagree with the panel opinion in this case.

The panel’s error is a serious one and warrants rehearing en banc. The

Supreme Court instructed that “we must apply [Booker’s] holdings—both the

Sixth Amendment holding and [its] remedial interpretation of the Sentencing

Act—to all cases on direct review.” Booker, 125 S. Ct. at 769. If, however, we

require defendants like Rodriguez to prove an effect on their substantial rights,

applying Booker will be a meaningless formality in all but the rarest of cases

subject to plain-error analysis.3 This is a sizable class of defendants. Until the

Supreme Court’s decision last June in Blakely v. Washington, __ U.S. __, 124 S.

Ct. 2531, 159 L. Ed. 2d 403 (2004), the constitutionality of the Federal Sentencing

Guidelines was beyond question in this circuit and every other. See id. at 2547 n.1

(O’Connor, J., dissenting) (collecting cases); United States v. Sanchez, 269 F.3d

1250, 1262 (11th Cir. 2001) (en banc) (“Apprendi does not apply to judge-made

determinations pursuant to the Sentencing Guidelines.”). Defendants sentenced

3
See infra note 13.

50
prior to Blakely had no reason to raise a constitutional objection to their sentence

because such an objection would have appeared futile. As such, the number of

cases impacted by the panel’s decision is significant.

Because the panel’s application of the plain-error test is fundamentally

flawed,4 and because this question is of substantial importance, I dissent from the

denial of rehearing en banc. Part I of this opinion explains why Booker itself

requires that we treat Booker errors of a constitutional dimension as structural

errors. Part II briefly describes how dramatically Booker has altered federal

sentencing and why this supports the conclusion that Booker errors involving an

actual violation of the Sixth Amendment are structural. Part III explains how the

plain-error test applies to structural errors. Part IV responds to Judge Carnes’s

opinion concurring in the denial of rehearing en banc. Part V concludes.

I.

At the outset, it is important to understand that there are two different types

of Booker error: “there is a constitutional error (based in the Sixth Amendment)

when a judge enhances a sentence in a mandatory sentencing system based on

facts not admitted by the defendant or proved to a jury beyond a reasonable

4
The First and Fifth Circuits have committed the same error. See United States v.
Antonakopoulos, 399 F.3d 68, 77-80 (1st Cir. 2005); United States v. Mares, __ F.3d __, 2005
WL 503715, at *8-9 (5th Cir. Mar. 4, 2005).

51
doubt,” and there is “a statutory error (based in the severability principles) when a

federal judge applied the guidelines as mandatory rather than advisory.” Douglas

A. Berman, Sorting through the Circuit circus, Sentencing Law and Policy, at

http://sentencing.typepad.com/sentencing_law_and_policy/2005/02/sorting_throu

gh.html (Feb.14, 2005). “Notably, only some pre-Booker sentencings involved

constitutional error, since not every pre-Booker guideline sentence depended upon

judicial fact-finding. But every pre-Booker sentencing involved statutory error,

since every pre-Booker guideline sentence was imposed based on the assumption

that the guidelines were mandatory . . . .” Id. The instant case involves both

constitutional and statutory error. See Rodriguez, 398 F.3d at 1298 (“Under a

mandatory guidelines system, Rodriguez’s sentence was enhanced as a result of

findings made by the judge that went beyond the facts admitted by the defendant

or found by the jury.”). Therefore, the precise question presented is whether, in a

case involving both constitutional and statutory error under Booker, the defendant

must establish that his substantial rights were affected—that is, “a reasonable

probability of a different result if the guidelines had been applied” as required by

Booker (Rodriguez, 398 F.3d at 1301)—in order to pass the plain-error test.

The distinction between Booker constitutional errors and Booker statutory

errors is significant because the Booker Court indicated that the two must be

52
treated differently. In Booker, the Court stated that “in cases not involving a Sixth

Amendment violation, whether resentencing is warranted or whether it will instead

be sufficient to review a sentence for reasonableness may depend upon application

of the harmless-error doctrine.” 125 S. Ct. at 769.5 If all Booker errors were

ordinary trial errors, this statement would be superfluous because it is well-settled

that the harmless-error doctrine applies to all ordinary trial errors—even

constitutional ones. Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 827,

17 L. Ed. 2d 705 (1967). Thus, there must be something more to this statement.

The logical implication is that “cases . . . involving a Sixth Amendment violation”

are not subject to harmless-error review. In other words, Booker constitutional

error is structural error, for only structural errors defy harmless-error analysis.

Fulminante, 499 U.S. at 306-10, 111 S. Ct. at 1263-65.

Intuitively, it may seem odd to say that Booker constitutional errors are

structural while Booker statutory errors are not. After all, the “framework within

which [sentencing] proceeds,” id. at 310, 111 S. Ct. at 1265, has changed because

the Guidelines are no longer mandatory, and this development applies fully even if

the trial court made no extra-verdict (or extra-plea) findings of fact. Moreover, in

5
In the same paragraph, the Court also emphasized that “not . . . every sentence gives rise
to a Sixth Amendment violation.” Booker, 125 S. Ct. at 769.

53
general, the effects of statutory errors are likely to be just as “unquantifiable and

indeterminate,” Sullivan, 508 U.S. at 281-82, 113 S. Ct. at 2083, as the effects of

constitutional errors. Even so, the distinction is valid. To begin with, it has clear

support in our own precedent. In Sanchez, we specifically stated that “[t]here is

no separate category of structural error apart from constitutional error. The only

question is whether any constitutional errors . . . rise to the level of structural

error.” 269 F.3d at 1272 n.41.6 This statement from Sanchez finds implicit

6
This question whether non-constitutional errors can ever be structural errors has
engendered much disagreement within several other circuits. Compare United States v. Curbelo,
343 F.3d 273, 280 n.6 (4th Cir. 2003) (“Despite occasionally suggesting in dicta that structural
errors must implicate constitutional rights, the Supreme Court has clearly held that structural
errors need not be of constitutional dimension.” (citation omitted)), with id. at 289 (Wilkins, C.J.,
dissenting) (“The Supreme Court and this court have repeatedly made clear that structural errors
necessarily must affect a defendant’s constitutional rights.”). Compare Green v. United States,
262 F.3d 715, 717-79 (8th Cir. 2001) (holding that the denial of a federal prisoner’s statutory
right to counsel in collateral proceedings is structural and therefore not subject to harmless-error
analysis), with id. at 719 (Bye, J., dissenting) (“Structural errors appear to be confined to the
constitutional sphere because Congress has mandated the application of harmless error review by
statute. Presumably, only grave constitutional errors could surmount the statutory default rule
that harmless error analysis applies.” (citation omitted)). Compare United States v. Annigoni, 96
F.3d 1132, 1144 (9th Cir. 1996) (“Although we conclude that the erroneous denial of the right of
peremptory challenge is not amenable to harmless-error analysis, we need not decide whether
such error rises to the level of structural error. The error in this case—the erroneous denial of a
right of peremptory challenge—is simply not amenable to harmless-error analysis.”), with id. at
1150 (Kozinski, J., dissenting) (“The right to a certain number of peremptory strikes—or to any
at all—is not guaranteed by the Constitution . . . . Since the Court has allowed for the possibility
of harmless error even when important constitutional rights are violated, I find it hard to believe
the Court would now conclude that it’s always reversible error to deny a defendant a mere
statutory right.” (citations omitted)). In Sanchez, we appear to have answered this question in the
negative. But see McGriff v. Dep’t of Corr., 338 F.3d 1231, 1235 (11th Cir. 2003) (holding that
failure to appoint counsel as required by the rules governing proceedings under 28 U.S.C. § 2254
is “structural error”); Shepherd v. United States, 253 F.3d 585, 588 (11th Cir. 2001) (holding that
failure to appoint counsel as required by the rules governing proceedings under 28 U.S.C. § 2255
“is not subject to harmless error analysis”). In any event, we would not need to address this

54
support in a number of Supreme Court cases.7 It also seems (at least) reasonable

to say that if a defendant’s Sixth Amendment right to a trial by jury was not

actually violated, we should not presume prejudice. In any event, it is enough to

say that the distinction is one that Booker itself implies.

II.

Booker’s implication that the constitutional error it corrects is structural is

fully consistent with the Supreme Court’s structural error cases. As noted above,

Fulminante defines structural error as a “constitutional deprivation[] . . . affecting

the framework within which the trial proceeds, rather than simply an error in the

broad issue to decide this case. It would be enough to say that Booker constitutional error is
structural, but Booker statutory error is not.
7
See, e.g., Neder v. United States, 527 U.S. 1, 7, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35
(1999) (“Although [the harmless error rule] by its terms applies to all errors . . . , we have
recognized a limited class of fundamental constitutional errors that ‘defy analysis by ‘harmless
error’ standards.’” (emphasis added) (quoting Fulminante, 499 U.S. at 309, 111 S. Ct. at 1265));
id. at 14, 119 S. Ct. at 1836 (“Under our cases, a constitutional error is either structural or it is
not.” (emphasis added)); Sullivan, 508 U.S. at 282, 113 S. Ct. at 2083 (Rehnquist, C.J.,
concurring) (“In [Fulminante], we divided the class of constitutional violations that may occur
during the course of a criminal proceeding, be it at trial or sentencing, into two categories: [trial
errors and structural errors].” (emphasis added)); Brecht v. Abrahamson, 507 U.S. 619, 629-30,
113 S. Ct. 1710, 1717, 123 L. Ed. 2d 353 (1993) (discussing trial error and structural error as part
of the “spectrum of constitutional errors”); Fulminante, 499 U.S. at 310, 111 S. Ct. at 1265
(“Since our decision in Chapman, other cases have added to the category of constitutional errors
which are not subject to harmless error . . . . Each of these constitutional deprivations is a similar
structural defect . . . . ” (emphasis added)); Chapman, 386 U.S. at 23, 87 S. Ct. at 827-28
(“Although our prior cases have indicated that there are some constitutional rights so basic to a
fair trial that their infraction can never be treated as harmless error, this statement . . . itself belies
any belief that all trial errors which violate the Constitution automatically call for reversal.”
(emphasis added and footnote omitted)).

55
trial process itself.” 499 U.S. at 310, 111 S. Ct. at 1265. It is difficult to overstate

the extent to which Booker affects the federal sentencing framework.

The starting point under both the old model (pre-Booker) and new model

(post-Booker) of federal sentencing is 18 U.S.C. § 3553(a), which states that

[t]he court shall impose a sentence sufficient, but not greater than
necessary, . . . (A) to reflect the seriousness of the offense, to promote
respect for law, and to provide just punishment for the offense; (B) to
afford adequate deterrence to criminal conduct; (C) to protect the
public from further crimes of the defendant; and (D) to provide the
defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner[.]

18 U.S.C. § 3553(a)(2). In other words, the underlying goals of the statute and the

Guidelines are “retribution, general deterrence, incapacitation, and rehabilitation.”

United States v. Mogel, 956 F.2d 1555, 1558 n.2 (11th Cir. 1992). In selecting an

appropriate sentence, the sentencing court must also consider “the nature and

circumstances of the offense and the history and characteristics of the defendant”;

“the kinds of sentences available”; all relevant guidelines and policy statements

issued by the Sentencing Commission; “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct; and the need to provide restitution to any victims of the offense.”

18 U.S.C. § 3553(a)(1), (3)-(7).

Under the old model, the district court was bound to sentence the defendant

56
within the applicable guideline range unless it determined that

an aggravating or mitigating circumstance of a kind, or to a degree,
not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines . . . should result in a
sentence different from that described. In determining whether a
circumstance was adequately taken into consideration, the court
[could] consider only the sentencing guidelines, policy statements,
and official commentary of the Sentencing Commission.

18 U.S.C. § 3553(b)(1). Stated differently, the only way the defendant was going

to get a downward departure under the old model was by showing that his case

was not within the “heartland of typical cases.” Koon v. United States, 518 U.S.

81, 94, 116 S. Ct. 2035, 2044, 135 L. Ed. 2d 392 (1996). This was a difficult task.

To start with, “the Sentencing Commission has already considered, and the

Sentencing Guidelines have already factored in, many if not all circumstances that

are arguably relevant to criminal sentencing . . . . The Guidelines are, as Congress

intended them to be, comprehensive . . . .” Kate Stith & Jose A. Cabranes, Fear of

Judging: Sentencing Guidelines in the Federal Courts 102 (1998). Thus, it was

quite unlikely that the defendant would be able to identify a circumstance that the

Commission had altogether failed to consider.8 And once the sentencing court

8
Professor Stith and Judge Cabranes further observe that “with respect to commonly
occurring circumstances that are not explicitly addressed by the Guidelines,” courts generally
“assume[] that the Commission has already taken the matter into account.” Stith & Cabranes,
supra, at 102. That is, if the circumstance is not rare, the Commission must be aware of it and
therefore its omission must mean that the Commission does not think it significant to sentencing
policy. Thus, “[t]he real question is not whether the Commission actually took some factor into

57
determined that the Commission had taken a circumstance into account, the

defendant could only argue that the circumstance was present in his case to some

atypical degree. This is because the Commission’s substantive judgment as to the

significance of the circumstance in a heartland case was unassailable.

The comprehensiveness of the Guidelines and the invulnerability of the

policy judgments on which they rest essentially rendered any evidence a defendant

might present regarding the need for “adequate deterrence” or the need for “just

punishment” irrelevant under the old model. The reason is simply that although

reasonable minds may differ as to the level of punishment needed to adequately

deter or justly punish a particular offense, once the Commission announced its

views on the subject, it was difficult to argue that any particular case was atypical

or outside the heartland with respect to these issues.9 Rather, a party seeking a

account, but whether the factor is rare enough to overcome a presumption that the Commission
has taken it into account.” Id. at 102-03 (citing Koon, 518 U.S. at 110-11, 116 S. Ct. at 2052).
9
See, e.g., United States v. Davis, 98 F.3d 141, 145 (4th Cir. 1996) (“Davis argues that a
sentence of less than the 30 years . . . would provide just punishment . . . . Davis’ claim . . . that
less than 30 years would be sufficient is misplaced. The commentary to the sentencing
guidelines states: ‘dissatisfaction with the available sentencing range or a preference for a
different sentence than that authorized by the guidelines is not an appropriate basis for a sentence
outside the applicable guideline range.’” (citation omitted)); United States v. Frazier, 979 F.2d
1227, 1231 (7th Cir. 1992) (“[District courts may not] depart based on their perception of a lack
of a need for general deterrence. ‘It would be difficult to imagine a finding that the Sentencing
Commission failed to adequately consider the general deterrent effect of the criminal law. . . .
District courts must justify their departures by reference to factors particular to the defendant that
the Guidelines inadequately considered.’ [United States v. Thomas, 906 F.2d 323, 327 (7th
Cir.1990)] (emphasis added).”).

58
departure generally accepted his base offense level as a starting point and then

attempted to show that the case was atypical because it was committed in an

unusual manner or for some unanticipated and unaccounted-for reason warranted a

downward departure.

Because the Guidelines are merely advisory under the new model, the

defendant is no longer limited to arguing that his case is somehow atypical. Such

arguments, of course, remain viable, but under the new model the defendant can

also simply concede that his case is typical and challenge the wisdom of the

Commission’s judgment regarding the appropriate punishment in heartland

cases.10 That is, the defendant may simply argue that the applicable guideline

10
See, e.g., United States v. Jaber, __ F. Supp.2d __, 2005 WL 605787, at *3-9, 13-15
(D. Mass. March 16, 2005); United States v. Carvajal, 2005 WL 476125, at *5-6 (S.D.N.Y. Feb.
22, 2005); United States v. Biheiri, 356 F. Supp. 2d 589, 594 n.6 (E.D. Va. 2005) (“No
individual [§ 3553(a)] factor is singled out as having greater weight; instead, the richness of
factual diversity in cases calls on sentencing judges to consider all of the factors and to accord
each factor the weight it deserves under the circumstances. Thus, the Guidelines sentencing
range is not entitled to ‘heavy weight,’ but it is a useful starting point in fashioning a just and
appropriate sentence.”); United States v. Nellum, 2005 WL 300073, at *4 (N.D. Ind. Feb. 3,
2005) (“The defendant is also an Army veteran, who was honorably discharged. Under the
guidelines, . . . military service is not ordinarily relevant in arriving at an appropriate sentence.
Yet, this Court finds it very relevant that a defendant honorably served his country when
considering his history and characteristics. See § 3553(a)(1).” (citation omitted)); United States
v. Galvez-Barrios, 355 F. Supp. 2d 958 (E.D. Wis. 2005); United States v. Huerta-Rodriguez,
355 F. Supp. 2d 1019, 1025-28, 1029-30 (D. Neb. 2005); United States v. Myers, 353 F. Supp.
2d 1026, 1027-32 (S.D. Iowa 2005); United States v. Jones, 352 F. Supp. 2d 22, 25-26 (D. Me.
2005); United States v. Ranum, 352 F. Supp. 2d 984, 987 (E.D. Wis. 2005) (“The guidelines are
not binding, and courts need not justify a sentence outside of them by citing factors that take the
case outside the ‘heartland.’ Rather, courts are free to disagree, in individual cases and in the
exercise of discretion, with the actual range proposed by the guidelines, so long as the ultimate
sentence is reasonable and carefully supported by reasons tied to the § 3553(a) factors.”).

59
sentence is “greater than necessary” to achieve the purposes of the Sentencing

Reform Act. 18 U.S.C. § 3553(a). “[T]he Guidelines . . . are the product of policy

decisions by the Sentencing Commission . . . . If those policy decisions are no

longer mandatory, the sentencing judge is free to disagree with them.” Booker,

125 S. Ct. at 790 n.3 (Scalia, J., dissenting).11

11
Courts may be particularly likely to disagree with guideline ranges deriving from base
offense levels tied to drug quantities or dollar amounts, which have long been the subject of
criticism. Post-Booker, several district courts have already indicated as much. For example, one
district court has announced,
[T]he Guidelines are based in part on statistical analyses of pre-Guidelines
sentencing practices. Based on those statistics, the Commission established the
offense levels for each crime, linked to a recommended imprisonment range.
Accordingly, in many cases, the Guidelines represent a reasonable estimation of a
fair sentencing range.
However, for policy reasons and because statutory mandatory minima
dictated many terms of the drug-trafficking guidelines, the Commission departed
from past practices in setting offense levels for such crimes as fraud and drug
trafficking. Consequently, and based also on its own experience and familiarity
with state court sentencing, the court finds Guideline ranges of imprisonment for
those crimes are less reliable appraisals of fair sentences.
....
The Guidelines’ quantity-driven, “market-oriented” approach also
contributes to disparity and unreliability in drug sentencing. The quantity system
was developed to punish bigger distributors more harshly, but practices of
charging conspiracies over a long period of time has the result of aggregating
many small distributions so as to make a long-term small quantity distributor look
like a large-quantity distributor. For example, a distributor responsible for selling
one gram at a time a hundred times gets the same sentence as the dealer caught
selling 100 grams only once.
Huerta-Rodriguez, 355 F. Supp. 2d at 1025-26 & n.6 (citations omitted). Similarly, another
district judge has observed,
[I]t is worth pointing out that under the guidelines, the weight of the narcotics is
the driving force behind the sentence. The government is well aware that for
every controlled buy that is made, the quantity of drugs is increased, and so is the
sentence. There is a randomness to this in the following sense: [the defendant’s]
guideline range would have been significantly decreased if he was arrested after

60
 Subject to review for reasonableness, district judges are now free to apply

their “own perceptions of just punishment, deterrence, and protection of the public

even when these differ from the perceptions of the Commission members who

drew up the Guidelines.” Id. at 790. Although “judges must still consider the

sentencing range contained in the Guidelines, . . . that range is now nothing more

than a suggestion that may or may not be persuasive . . . when weighed against the

numerous other considerations listed in [§ 3553(a)].” Id. at 787 (Stevens, J.,

dissenting). Indeed, as one district judge has already observed,

the remedial majority in Booker[] direct[s] courts to consider all of
the § 3353(a) factors, many of which the guidelines either reject or

the first [undercover] buy . . . and not after the fourth buy. Under the guidelines,
this fortuity increased [his] guidelines range from 87-108 months . . . to 168-210
months. Indeed, on the other hand, if the officers wanted to, they probably could
have made additional controlled buys from [the defendant] and the total weight of
the drugs attributable to him would have been even higher and so too his sentence
under the guidelines. It is . . . difficult to ignore the random nature of how the
system plays out in reality.
Nellum, 2005 WL 30073, at *5; see also Jaber, 2005 WL 605787, at *12 (“Drug quantity may
well be a kind of accident, depending on the fortuities of law enforcement or even the market, as
much as it reflects the defendant’s culpability.”). The district judge in Nellum also noted that the
guideline sentencing disparity between crack cocaine and powder cocaine was likely to be a
controversial and recurring issue in sentencing hearings conducted under the new model,
although he concluded that he could impose an appropriate sentence without addressing it
directly in that case. Nellum, 2005 WL 30073, at *4; cf. United States v. Wilson, 350 F. Supp.
2d 910, 918 (D. Utah 2005) (arguing that the Guidelines generally reflect public opinion, with
one notable exception being “the Guidelines’ differentially harsh treatment of distribution of
crack cocaine (as compared to powder cocaine)”). Recently, in United States v. Smith, __ F.
Supp. 2d __, 2005 WL 549057 (E.D. Wis. March 3, 2005), another district court imposed a lower
sentence than that called for by the Guidelines to avoid an “unwarranted disparity between
defendants convicted of possessing powder cocaine and defendants convicted of possessing crack
cocaine.” Id. at *9.

61
 ignore. For example, under § 3553(a)(1) a sentencing court must
consider the “history and characteristics of the defendant.” But under
the guidelines, courts are generally forbidden to consider the
defendant’s age, his education and vocational skills, his mental and
emotional condition, his physical condition including drug or alcohol
dependence, his employment record, his family ties and
responsibilities, his socio-economic status, his civic and military
contributions, and his lack of guidance as a youth. The guidelines’
prohibition of considering these factors cannot be squared with the §
3553(a)(1) requirement that the court evaluate the “history and
characteristics” of the defendant.

United States v. Ranum, 353 F. Supp. 2d 984, 986 (E.D. Wis. 2005) (citations

omitted). Thus, mitigating circumstances and substantive policy arguments that

were formerly irrelevant in all but the most unusual cases12 are now potentially

relevant in every case.

That constitutional Booker errors are “constitutional deprivations . . .

affecting the framework within which [sentencing] proceeds,” Fulminante, 499

12
See, e.g., United States v. Lacy, 99 F. Supp. 2d 108, 112 (D. Mass. 2000) (footnotes
omitted):
[W]hile the Guidelines’ emphasis on quantity and criminal history drives these
high sentences, sadly, other factors, which I believe bear directly on culpability,
hardly count at all: Profound drug addiction, sometimes dating from extremely
young ages, the fact that the offender was subject to serious child abuse, or
abandoned by one parent or the other, little or no education. Nor may I consider
the fact that the disarray so clear in the lives of many of these defendants appears
to be repeating itself in the next generation: Many have had children at a young
age, and repeat the volatile relationships with their girlfriends that their parents
may have had. And I surely cannot evaluate the extent to which lengthy
incarceration will exacerbate the problem, separating the defendant from whatever
family relationships he may have, or the impact on communities when these
young men return.

62
U.S. at 310, 111 S. Ct. at 1265, is thus inescapable. It is equally clear that their

“consequences . . . are necessarily unquantifiable and indeterminate.” Sullivan,

508 U.S. at 282, 113 S. Ct. at 2083. Indeed, the panel recognizes this when it

“ask[ed] whether there is a reasonable probability of a different result if the

guidelines had been applied in an advisory instead of binding fashion”:

The obvious answer is that we don’t know. If the district court judge
in this case had the liberty of increasing or decreasing Rodriguez’s
sentence above or below the guidelines range, he might have given
Rodriguez a longer sentence, or he might have given a shorter
sentence, or he might have given the same sentence. The record
provides no reason to believe any result is more likely than the other.
We just don’t know.

Rodriguez, 398 F.3d at 1301. I do not see how we can dismiss Rodriguez’s Sixth

Amendment claim on the ground that “[t]he record provides no reason to believe”

that he would have received a lesser sentence under the new model. Or, as the

Seventh Circuit put it, I “cannot fathom why the Eleventh Circuit wants to

condemn some unknown fraction of criminal defendants to serve an illegal

sentence.” United States v. Paladino, 401 F.3d 471, 484 (7th Cir. 2005).

Before adopting such a rule, we should at least consider what in the record

might have “provide[d] . . . reason to believe” that a lesser sentence would have

been imposed had Rodriguez been sentenced under the new model. At the

sentencing hearing, the defendant might have argued that his guideline sentence

63
was “greater than necessary” to achieve the sentencing purposes identified in §

3553(a). More specifically, the defendant might have presented the district judge

with law-enforcement data tending to show that the need for general deterrence is

low with respect to his particular offense and in his particular community, and that

his guideline range is therefore unnecessarily high. Alternatively, the defendant

might have argued that his personal history or circumstances somehow render him

less culpable or less likely to commit future crimes than the Guidelines suggest.

Of course, none of this type of evidence or argument is likely to be found in the

record of a pre-Booker hearing.13

Any attempt to assess prejudice resulting from Booker error is, therefore,

pure guesswork. In cases involving statutory error only, it is necessary guesswork,

for the Supreme Court has clearly indicated that the harmless-error and plain-error

doctrines apply to such cases. Again, this is reasonable given that these

13
Alternatively, if “the district court during sentencing expressed several times its view
that the sentence required by the Guidelines was too severe,” stated that it was “unfortunate[]”
that the Guidelines overstated the seriousness of the defendant’s criminal history, imposed the
lowest possible sentence under the Guidelines, and remarked that even that sentence was “more
than appropriate,” then the defendant will satisfy the Rodriguez standard. United States v.
Shelton, 400 F.3d 1325, 1331-33 (11th Cir. 2005). Shelton involved only statutory error, so I
agree with the panel that a prejudice inquiry was necessary. I also agree that the defendant
established prejudice. Indeed, I do not understand why the court felt the need to emphasize that
“[a]ll of these comments taken together convince[d] [it] that there [was] a reasonable probability
the district court would have imposed a lesser sentence . . . if it had not felt bound by the
Guidelines.” Id. at 1332-33. I should think that any one of these circumstances standing alone
would be sufficient.

64
defendants have suffered no actual constitutional deprivation. But when, as in this

case, the Booker error is constitutional, the fact that its effect is wholly

“unquantifiable and indeterminate,” Sullivan, 508 U.S. at 282, 113 S. Ct. at 2083,

reinforces its structural nature. In this sense, Booker error is similar to other types

of error that fit within the very limited class of structural errors. See supra note 1

(listing structural errors). It is, for example, similar to Gideon error in that just as

we cannot know what evidence a capable attorney might have uncovered, what

favorable testimony he might have elicited, or what persuasive arguments he

might have made, we also cannot know what evidence or argument a defendant

might have presented had he been sentenced under the new sentencing model. It

is also similar to an erroneous reasonable-doubt instruction, for just as such a

misinstruction “vitiates all the jury’s findings” so that an appellate court can do no

more than “engage in pure speculation—its view of what a reasonable jury would

have done,” Sullivan, 508 U.S. at 281, 113 S. Ct. at 2082—all we can do is

speculate as to what a reasonable sentencing judge might have done under the new

model. Indeed, we are in one sense worse off because a court assessing an

erroneous reasonable-doubt instruction can at least assume that the remaining

record was not affected by the instruction error, whereas I think we must assume,

if anything, that a defendant such as Rodriguez would have done something

65
different under the new model.

I am thus firmly convinced that Booker constitutional error is structural

error. In the next Part, I explain the significance of this conclusion in the plain-

error context.

III.

It is clear that structural errors are not subject to harmless-error analysis and

therefore always require reversal if a timely objection is made. Fulminante, 499

U.S. at 309-10, 111 S. Ct. at 1264-65. Rodriguez did not raise a constitutional

objection to his sentence, however, so the question here is how structural errors

are to be treated under the plain-error test.14 The Supreme Court has never

squarely addressed this issue, but on several occasions it has suggested that

structural errors are not subject to the substantial-rights prong of the plain-error

test. See United States v. Dominguez-Benitez, 542 U.S. 74, __, 124 S. Ct. 2333,

2339-40, 159 L. Ed. 2d 157 (2004); United States v. Cotton, 535 U.S. 625, 632-33,

122 S. Ct. 1781, 1785-86, 152 L. Ed. 2d 860 (2002); Johnson, 520 U.S. at 468-69,

117 S. Ct. at 1549-50; Olano, 507 U.S. at 736, 113 S. Ct. at 1778. Similar

14
Rodriguez did, however, object to the district court’s calculation of the number of
ecstasy tablets involved in the offense. The Eighth Circuit “has held that when a defendant
objects to a District Court’s determination of drug quantity at sentencing, the defendant preserves
a Booker-based challenge to his sentence and is entitled to a new sentencing proceeding.” United
States v. Sdoulam, 398 F.3d 981, 995 (8th Cir. 2005).

66
statements can be found in a number of our opinions, see, e.g., McCoy v. United

States, 266 F.3d 1245, 1252 n.9 (11th Cir. 2001) (“Apprendi error is a

constitutional error, subject to plain- or harmless-error review, and does not create

a structural error.”); United States v. Smith, 240 F.3d 927, 930 (11th Cir. 2001)

(“[F]ailure to submit the issue of drug quantity to the jury did not affect

Defendants’ substantial rights. Apprendi did not create a structural error that

would require per se reversal.”); United States v. Frost, 139 F.3d 856, 859 (11th

Cir. 1998) (discussing Johnson, supra), as well as those of other circuits, see, e.g.,

United States v. Bruno, 383 F.3d 65, 79 (2d Cir. 2004); United States v. Adams,

252 F.3d 276, 285 & n.6 (3d Cir. 2001); United States v. Wilson, 240 F.3d 39, 44

(D.C. Cir. 2001). Moreover, those circuits that have squarely addressed this issue

have held that structural errors are not subject to substantial-rights analysis under

the plain-error test—or, stated differently, are presumed to have affected the

defendant’s substantial rights. See United States v. Recio, 371 F.3d 1093, 1103

(9th Cir. 2004); United States v. David, 83 F.3d 638, 646-47 (4th Cir. 1996).

That structural errors should not be subject to substantial-rights analysis

seems obvious to me. Indeed, Federal Rule of Criminal Procedure 52, read in light

of the Supreme Court’s structural error cases, compels this conclusion. Rule 52(a)

defines harmless error as “[a]ny error . . . that does not affect substantial rights.”

67
And Rule 52(b) says that we may correct “[a] plain error that affects substantial

rights.” Thus, when the Supreme Court said that structural errors “defy analysis

by ‘harmless-error’ standards,” Fulminante, 499 U.S. at 309, 111 S. Ct. at 1265, it

meant that structural errors “defy” substantial-rights analysis, for substantial-rights

analysis and harmless-error analysis are one in the same. Olano, 507 U.S. at 734,

113 S. Ct. at 1778 (stating that the only difference between the two is that the

defendant bears the burden of persuasion under the former and the Government

under the latter). I cannot imagine how an error would “defy” substantial-rights

analysis under Rule 52(a) but not under Rule 52(b). Therefore, structural errors

cannot be subject to the third prong of the plain-error test. This does not mean that

structural errors are per se reversible under the plain-error standard, see Johnson,

520 U.S. at 466, 117 S. Ct. at 1548; Recio, 371 F.3d at 1100 n.4; David, 83 F.3d at

647-48, but it does mean that we cannot affirm simply because the defendant is

unable show that his substantial rights were affected.

Because structural errors are not subject to substantial-rights analysis, the

panel’s reliance on Jones v. United States, 527 U.S. 373, 119 S. Ct. 2090, 144 L.

Ed. 2d 370 (1999), is misplaced. In Jones, the defendant argued that the jury was

erroneously “led to believe that if it could not reach a unanimous sentence

recommendation he would receive a judge-imposed sentence less severe than life

68
imprisonment.” Id. at 384, 119 S. Ct. at 2100. The Court first held that no error

was committed. Id. at 389-90, 119 S. Ct. at 2102. It then explained that “[e]ven

assuming, arguendo, that an error occurred (and that it was plain),” and further

assuming that the jurors were confused over the consequences of
deadlock, petitioner cannot show the confusion necessarily worked to
his detriment. It is just as likely that the jurors, loath to recommend a
lesser sentence, would have compromised on a sentence of life
imprisonment as on a death sentence. 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.

Id. at 394-95, 119 S. Ct. at 2105. The dissent in Jones responded only that such

uncertainty should satisfy the substantial-rights prong of the plain-error test: “I

would demur . . . to that position. It should suffice that the potential to confuse

existed, i.e., that the instructions could have tilted the jury toward death.” Id. at

416, 119 S. Ct. at 2115-16 (Ginsburg, J., dissenting). In other words, the dissent

argued only that the defendant had made a sufficient showing that the error

affected his substantial rights, not that he was not required to do so. Neither the

majority nor the dissent ever mentioned the concept of “structural error.” Nor, for

that matter, did any of the parties in Jones, either in the briefs or at oral argument.

It is clear that Jones did not involve structural error and, therefore, does not

resolve this case. Instead, Jones announces a general rule of thumb that the

defendant loses if we can only speculate as to whether he was prejudiced by an

69
ordinary trial error to which did not object. Jones would not apply if, for example,

the judge forgot to give a reasonable-doubt instruction and the defendant did not

object; that is, we could not say, “Well, the defendant did not object, and we just

don’t know what, if any, prejudice this omission caused him, so he fails the plain-

error test.” Because Booker constitutional error is also structural error, Jones does

not apply here either.

IV.

As Judge Carnes says, no federal court has explicitly held, as I would, that

Booker constitutional error is structural error. Ante, at 6. While technically

accurate, this statement is at least a little misleading. After all, the Third, Fourth,

and Sixth Circuits appear to think that every Booker constitutional error affects

substantial rights, which is really all that calling such error “structural” means in

the plain-error context. See, e.g., United States v. Spivey, 2005 WL 647345, at *5

(3d Cir. Mar. 22, 2005); United States v. Hughes, __ F.3d __, 2005 WL 628224, at

*5-12 (4th Cir. Mar. 16, 2005); United States v. Oliver, 397 F.3d 369, 379-80 (6th

Cir. 2005). The Ninth Circuit also took this position initially, though it has since

granted rehearing en banc. United States v. Ameline, 400 F.3d 646, 654 (9th Cir.

2005), reh’g en banc granted, __ F.3d __, 2005 WL 612710 (9th Cir. Mar. 11,

2005). Indeed, the only real difference between these opinions and mine is that

70
mine offers a more satisfactory rationale for its result. See infra note 19. In

addition, the Eighth is still yet to weigh in on this issue with a significant opinion,

and the Tenth Circuit has addressed only statutory Booker error. See United

States v. Gonzalez-Huerta, __ F.3d __, 2005 WL 807008, at *3 (10th Cir. Apr. 8,

2005) (en banc) (“This case presents us with a non-constitutional Booker error.”).

Thus, I do not believe that my opinion is nearly so radical as Judge Carnes

suggests.

In Booker, the Court instructed that “in cases not involving a Sixth

Amendment violation, whether resentencing is warranted or whether it will instead

be sufficient to review a sentence for reasonableness may depend upon application

of the harmless-error doctrine.” Booker, 125 S. Ct. at 769 (emphasis added).

Judge Carnes fairly summarizes what I infer from this instruction: 1) the harmless-

error doctrine does not apply to “cases . . . involving a Sixth Amendment

violation”; 2) ergo, Booker errors “involving a Sixth Amendment violation”—i.e.,

constitutional Booker errors—must be structural errors, for only structural errors

defy harmless-error analysis; and, 3) ergo, all constitutional Booker errors affect

substantial rights for plain-error purposes. See ante, at 8-9. Judge Carnes says,

“Never has so much been inferred from so little.” Id. Propositions 2 and 3 in this

chain are, however, relatively uncontroversial, and I do not understand Judge

71
Carnes to disagree with them—that is, it is clear that only structural errors defy

harmless-error analysis and that structural errors always affect substantial rights.

As such, Judge Carnes really only takes issue with proposition 1. I believe that I

make a sound case in Part I that the Court’s statement regarding cases not

involving Sixth Amendment error would be superfluous if it does not mean what I

conclude it means, but my main point here is that the extent of my inference

should not be overstated: propositions 2 and 3 follow logically if proposition 1 is

accepted.

Judge Carnes then argues that “[t]here are all kinds of problems with [my]

theory.” Ante, at 9. He says that it contradicts the Booker Court’s expectation

that we “apply ordinary prudential doctrines, determining, for example, whether

the issue was raised below and whether it fails the ‘plain-error’ test.” Booker, 125

S. Ct. at 769. This simply is not so. In cases involving only statutory error, Judge

Carnes and I would, I think, apply the plain-error test in much the same way. And

even in cases involving constitutional error, I would require the defendant to

satisfy the fourth prong of the test.15 Thus, my approach is in no sense in conflict

15
Judge Carnes says that my approach to the plain-error test will result in all sentences
involving constitutional error being vacated. This is so, he says, because “Shelton effectively
adds that where the third prong of the plain error test is met in [Booker] cases, the fourth one will
be also.” Ante, at 3-4 (citing Shelton, 400 F.3d at 1333-34). That is not how I read Shelton. If
that case does, in fact, hold that the third and fourth prongs of the test always go hand-in-hand in
Booker cases, it certainly does so subtly. The passage Judge Carnes cites states:

72
 A plain error affecting substantial rights does not, without more, satisfy the
plain-error test, for otherwise the fourth prong and the discretion afforded by the
fourth prong would be illusory. We conclude that the fourth prong is established
here and that an exercise of our discretion is warranted in this particular case.
The district court in this case indicated an express desire to impose a
sentence lesser than the low end of the Guidelines range of 130 months’
imprisonment, and the Supreme Court in Booker plainly indicated that the district
court now has the discretion to do so, provided the resulting sentence is
reasonable in light of the § 3553(a) factors. Under these circumstances, defendant
Shelton has carried his burden to establish the fourth prong and has shown that the
plain error that affected his substantial rights also seriously affected the fairness,
integrity or public reputation of the judicial proceedings in his particular case.
Accordingly, we vacate Shelton’s sentence and remand for resentencing consistent
with Booker.
Shelton, 400 F.3d at 1333-34.
I do expect that in most cases the defendant will also satisfy the fourth prong of the plain-
error test if he is able to satisfy the third prong. But if, for example, the Government could show
that the district court expressed a strong desire to impose a more severe sentence than the
Guidelines permitted because of circumstances not easily countered by mitigating evidence,
declining to correct the plain error would not lead to a “miscarriage of justice.” Of course, under
the panel’s approach, such a defendant would never get past the third prong of the plain-error test
anyway. As such, part of the reason Judge Carnes thinks that my approach would mean that all
sentences involving constitutional error would satisfy the plain-error test is a direct result of an
aspect of the panel opinion with which I disagree and would not follow.
I also note that, addressing statutory error only, the Tenth Circuit recently rejected the
proposition for which Judge Carnes reads Shelton to stand:
As a preliminary matter, we note that in the wake of Booker several courts
of appeals have collapsed the third and fourth prong analyses. That is to say, if
these courts find the third prong satisfied, they conclude that the fourth prong is
met as a matter of course. We cannot subscribe to this approach. The Court in
Olano clearly held that “a plain error affecting substantial rights does not, without
more, satisfy the . . . standard, for otherwise the discretion afforded by Rule 52(b)
would be illusory.”
Gonzalez-Huerta, __ F.3d at __, 2005 WL 807008, at *6 (citation omitted) (quoting Olano, 507
U.S. at 737, 113 S. Ct. at 1779); see also Gonzalez-Huerta, __ F.3d at __, 2005 WL 807008, at
*12 n.2 (Ebel, J., concurring) (“I agree with both the majority opinion and with Judge Hartz that
we cannot conflate the third and fourth prongs of the plain-error analysis. Rather, we must
address these two inquiries separately.”).
Judge Carnes further argues that it would be “difficult to justify a conclusion that an error
that is structural does not ‘seriously affect[] the fairness, integrity or public reputation of judicial
proceedings,’” and that, “[s]o far as can be discovered, no court has ever actually” reached such a
conclusion. Ante, at 12 (quoting Olano, 507 U.S. at 732, 113 S. Ct. at 1776). The Supreme

73
with the Supreme Court’s expectation regarding the applicability of the plain-error

test. For the same reasons, it is entirely consistent with the Court’s statement that

not “every appeal will lead to a new sentencing hearing.” Id.16

Judge Carnes next attacks my distinction between constitutional errors and

statutory errors, arguing that it lacks support “in law or logic.” Ante, at 13.

Apparently, he thinks that there is no difference between a case in which the

defendant’s constitutional rights were violated and a case in which they were not.

I think that there is. The Supreme Court seems to think so, too. See Booker, 125

S. Ct. at 769 (“[W]e must apply today’s holdings—both the Sixth Amendment

Court, however, has twice concluded that a defendant failed to satisfy the fourth prong of the
plain-error test even assuming that the error claimed was both plain and structural. See Cotton,
535 U.S. at 632-34, 122 S. Ct. at 1786-87; Johnson, 520 U.S. at 468-70, 117 S. Ct. at 1549-50.
Although the Court did not actually say that the errors it addressed in these cases were structural,
it necessarily held that, in general, structural errors do not per se affect the fairness, integrity, or
public reputation of judicial proceedings. Otherwise, the Court would have been required to
reach the defendants’ structural-error arguments. For the same reason, Cotton and Johnson also
necessarily hold that the plain-error test applies to even structural errors, and, so far as I have
discovered, no court of appeals has held otherwise. Judge Carnes’s opinion is inconsistent with
this holding, as he all but says that structural errors are per se reversible even in the plain-error
context.
16
Moreover, in the same paragraph, the Court also stated, “[W]e must apply today’s
holdings—both the Sixth Amendment holding and our remedial interpretation of the Sentencing
Act—to all cases on direct review. That fact does not mean that we believe that every sentence
gives rise to a Sixth Amendment violation.” Booker, 125 S. Ct. at 769. The panel’s approach
renders the observation that not “every sentence gives rise to a Sixth Amendment violation”
superfluous because Rodriguez and progeny treat all Booker errors exactly the same. See ante, at
4 (“Because the effect of Booker error is the same regardless of the type, our decisions make no
functional distinction between constitutional and statutory error. For purposes of the plain error
rule, unpreserved error is unpreserved error.”).

74
holding and our remedial interpretation of the Sentencing Act—to all cases on

direct review. That fact does not mean that we believe that every sentence gives

rise to a Sixth Amendment violation. . . . [And] in cases not involving a Sixth

Amendment violation, whether resentencing is warranted or whether it will instead

be sufficient to review a sentence for reasonableness may depend upon application

of the harmless-error doctrine.” (emphasis added and citations omitted)). Stated

differently, statutory Booker errors are merely a byproduct of Booker’s

“unnecessarily broad remedy,” id. at 788 (Stevens, J., dissenting), whereas

constitutional Booker errors are violations of the Sixth Amendment requirement

that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S. Ct. at

2362-63.17 Moreover, as Judge Carnes concedes, see ante, at 14 n.4, this court has

17
The Tenth Circuit has also noted the distinction between constitutional and non-
constitutional Booker errors. See Gonzalez-Huerta, __ F.3d at __, 2005 WL 807008, at *4. It
“[held] that non-constitutional Booker error is not structural error,” id., but did not reach the
issue of constitutional Booker error. In concluding, as I do, that non-constitutional (or statutory)
Booker error is not structural, it observed that the Supreme Court has implied that “generally
speaking structural errors must, at a minimum, be constitutional errors.” Id.; see supra note 7 &
accompanying text (collecting cases and observing the same). Later in its opinion, the Tenth
Circuit also noted the normative difference between constitutional and statutory Booker errors:
The error of which [the defendant] complains is not the substantive error first
recognized in Blakely and which Booker sought to eliminate—namely, that the
Sixth Amendment is violated when a judge, rather than a jury, finds facts that
mandatorily increase a defendant’s sentence. Rather, the error in [this] case—that
the District Court applied the Guidelines mandatorily—is only error insofar as it

75
already stated once that only constitutional errors can be structural errors. See

Sanchez, 269 F.3d at 1272 n.41.18

Judge Carnes then relies on Sanchez, arguing that its holding “that Apprendi

error is not structural answers the question of whether Booker error is structural,

because Booker is an application of Apprendi once removed.” Ante, at 16. This

statement is obviously wrong. Because the Guidelines were still binding post-

Apprendi, a court reviewing Apprendi error could simply determine whether the

evidence supporting any judicial fact-finding was so clear that failure to submit

the issue to a jury was harmless; if it was, then the error was harmless precisely

because the Guidelines were still binding. But post-Booker, even if the evidence

supporting all facts found by the judge is overwhelming, we can still only guess as

to what sentence the judge might have imposed under an advisory-guideline

runs afoul of the Court’s remedy for the unconstitutional implications of the
Guidelines. This disconnect between the constitutional violation and the remedy
makes Booker unique. . . . The fortuity of the Court’s choice to excise 18 U.S.C. §
3553(b)(1), instead of a remedy more directly related to the underlying
constitutional problem, is key to our determination that the District Court’s
erroneous—although not constitutionally erroneous—mandatory application of
the Guidelines is not particularly egregious or a miscarriage of justice.
Gonzalez-Huerta, __ F.3d at __, 2005 WL 807008, at *8. Although I do not agree with all of the
Tenth Circuit’s analysis, I do agree that there is an important distinction between constitutional
and statutory Booker errors.
18
Judge Carnes may be correct that Sanchez’s statement is “pure dicta.” Ante, at 14 n.4.
As such, I do not suggest that he is “bound” by it. Id. My only surprise is that what this court
said—in an en banc opinion that Judge Carnes joined—less than four years ago is today thought
so obviously wrongheaded.

76
regime. We, therefore, cannot know whether the error affected the defendant’s

substantial rights. This is why Booker constitutional error is structural even

though Apprendi error was not. Unlike Booker, Apprendi did not fundamentally

alter the sentencing framework, and the effects of Apprendi error were just as

determinable as the effects of any other sort of trial error. Indeed, a panel of this

court, in an opinion Judge Carnes joined, has already observed that “Blakely error

in the Sentencing Guidelines context . . . was judicial versus jury fact-finding of

sentencing enhancements and is entirely different from the error we now know to

exist under Booker as to the Sentencing Guidelines.” United States v. Shelton,

400 F.3d 1325, 1333 n.12 (11th Cir. 2005) (emphasis added).

Finally, Judge Carnes argues that most mitigating evidence or argument a

defendant might present under the post-Booker sentencing model should already

be in the record because it was arguably relevant (pre-Booker) to determining the

defendant’s sentence within his guideline-mandated range. See ante, at 21-24.

This may be the case with respect to some types of mitigating evidence, but it

ignores reality to suggest that it is true across the board. For example, although it

was theoretically possible under the old model for a defendant to seek a sentence

at the low end of a mandatory guideline range by presenting statistical evidence

that the Sentencing Commission had overestimated the need for general deterrence

77
with respect to his offense in his particular community, I personally never heard of

such an argument being made. Now, however, such Sentencing Commission

policy judgments are open to attack in any given case.

In sum, my opinion is not nearly so novel as Judge Carnes suggests, it does

not depend on any monumental inferential leap, and it is entirely consistent with

the Supreme Court’s opinion in Booker. The distinction I draw between

constitutional and statutory Booker errors has ample support in law and logic; in

fact, it is not even unprecedented in this circuit. Finally, Judge Carnes’s opinion is

grounded in large part on the faulty assumptions that Apprendi error and Booker

error are essentially the same and that Booker really won’t do that much to change

the type of the evidence and argument presented at federal sentencing hearings.

V.

I tend to agree with the panel in this case that we cannot automatically

equate prejudice with the imposition of extra-verdict sentencing enhancements,

since these same enhancements must be considered under the new model.19 I

19
This is essentially the position taken by the Fourth and Sixth Circuits. E.g., United
States v. Hughes, __F.3d__, 2005 WL 628224, at *5-12 (4th Cir. March 16, 2004); United States
v. Oliver, 397 F.3d 369, 379-80 (6th Cir. 2005); see also United States v. Ameline, 400 F.3d 646,
654 (9th Cir. 2005), vacated and reh’g en banc granted, __ F.3d __, 2005 WL 612710 (9th Cir.
March 11, 2005). In practice, this approach reaches the same result as mine in cases involving
constitutional error. My disagreement goes only to its reasoning. It is inaccurate to say that a
defendant has actually established an effect on his substantial rights if we can only guess as to
what sentence he might get under the new sentencing model. In short, these courts require the

78
completely agree with the panel that we cannot know what effect Booker error had

on Rodriguez’s sentence. I take a different lesson from this uncertainty, though.

Because its effects “are necessarily unquantifiable and indeterminate,” Sullivan,

508 U.S. at 281-82, 113 S. Ct. at 2083, and because Booker dramatically “affect[s]

the framework within which [sentencing] proceeds,” Fulminante, 499 U.S. at 310,

111 S. Ct. at 1265, Booker error is structural in nature. Moreover, treating Booker

constitutional error as structural error would give effect to the distinction Booker

draws between constitutional and statutory error. See 125 S. Ct. at 769.

defendant to show that his substantial rights were affected only to find that they were in every
case involving constitutional error, whereas I would simply say that no such showing is required.
To the extent that some courts are automatically vacating sentences that involve only statutory
error, e.g., United States v. McCraven, __ F.3d __, 2005 WL 608263, at *6 (6th Cir. March 17,
2005), this cannot be correct because it renders meaningless the Supreme Court’s instruction that
we apply the plain-error test to cases pending on direct review.
The Second, Seventh, and D.C. Circuits have adopted the novel approach of remanding
all Booker cases to allow the district court to determine whether the defendant’s substantial rights
were affected so as to require a new sentencing hearing. See United States v. Coles, __ F.3d __,
2005 WL 783069, at *1 (D.C. Cir. Apr. 8, 2005); United States v. Crosby, 397 F.3d 103, 117-
118 (2d Cir. 2005); Paladino, 401 F.3d at 483-85. To the extent that this approach fails to
distinguish between constitutional and statutory error, it is inconsistent with the Booker remedial
opinion. Moreover, given the significant differences between the old and new sentencing
models, “the only way to know whether a different sentence would have been imposed under
advisory guidelines” is to actually hold a full hearing. Paladino, 401 F.3d at 488 (Kanne, J.,
dissenting from the denial of rehearing en banc). If this is what the district court is to do, then
this approach is no more efficient than simply remanding for a new hearing, as I would do in all
cases involving constitutional error. If, however, the district court is only going to take a “quick
look” on remand, id. at 486 (Ripple, J., dissenting from the denial of rehearing en banc), then it
overlooks the fundamental change Booker has wrought in the federal sentencing framework and
fails to fully remedy structural constitutional errors. Finally, by remanding even cases involving
only statutory error, this approach fails to relieve district courts of any of the burden the limiting
final paragraph of the Booker remedial opinion seeks to avoid.

79
 The panel errs by accepting Booker’s invitation to “apply ordinary

prudential doctrines” without following its implicit instruction as to how they

should be applied. Id. As a result, it erroneously requires Rodriguez to prove an

effect on his “substantial rights.” This an important issue because the panel’s

opinion imposes a virtually impossible burden on a large class of defendants

whose cases are still in the pipeline on direct appeal. Our rule will “condemn

some unknown fraction of criminal defendants to serve an illegal sentence.”

Paladino, 401 F.3d at 484. The panel does not deny that this is the case. It

concedes that it has no way of knowing whether Rodriguez is serving an illegal

sentence. Rodriguez, 398 F.3d at 1301. At a minimum, we know that his sentence

was imposed in an unconstitutional manner. Nevertheless, the panel refuses to

grant a new sentencing hearing. For the foregoing reasons, I dissent from the

denial of rehearing en banc.

80
BARKETT, Circuit Judge, dissenting from denial of rehearing en banc:

As an initial matter, I agree with Judge Tjoflat that the issue presented here

is eminently worthy of en banc review. Furthermore, I find his reasoning

extremely persuasive. However, even assuming that constitutional Booker error is

not “structural,” I believe that the panel erroneously applies Jones v. United States,

527 U.S. 373 (1999), instead of United States v. Dominguez Benitez, __ U.S. __,

124 S. Ct. 2333 (2004). In so doing, the panel erroneously requires the defendant

to prove that his “substantial rights” were affected by a preponderance of the

evidence, instead of requiring him to prove only a “reasonable probability” that,

but for the error, the outcome of the district court proceedings would have been

different.

Rodriguez1 is a Booker “pipeline” case wherein the defendant was

unconstitutionally sentenced before Booker was decided but did not preserve the

error for appellate review. Conceding that the defendant had met the first two

prongs of the “plain error” test, Rodriguez addressed the question posed by the

third prong of that test, whether the defendant could prove that the constitutional

violation affected his “substantial rights.” Rodriguez, 398 F.3d at 1299-1300.

Rodriguez held that if the evidence is in equipoise, the defendant has not met his

1
United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005).

81
burden of proof. Id. I believe this conclusion conflicts with the holding of

Dominguez Benitez, and indeed, applies the preponderance of the evidence test, a

standard of proof Dominguez Benitez specifically rejected.

In Dominguez Benitez, the Supreme Court specifically clarified: (1) that a

defendant proves that an error affects his substantial rights by establishing a

“reasonable probability” that, but for the error, the outcome of the district court

proceedings would have been different;2 (2) that a reasonable probability of a

different result is one that is “sufficient to undermine confidence in the outcome of

the proceeding;”3 and (3) that this “reasonable probability” standard differs from

the “less defendant-friendly ‘more likely than not’” preponderance of the evidence

standard.4

I agree that the defendant bears the burden of proving this “reasonable

probability.” However, I believe the defendant meets this burden by showing that:

(1) the guidelines were mandatory and that nothing in the record indicates that the

2
Dominguez Benitez, 124 S. Ct. at 2340.
3
Id. (internal quotation marks omitted) (citing Strickland v. Washington, 466 U.S. 668,
694 (1984), and United States v. Bagley, 473 U.S. 667, 682 (1985)).
4
Id. at 2342 (Scalia, J., concurring in the judgment) (emphasis added); see also id. at
2340 n.9 (“The reasonable-probability standard is not the same as, and should not be confused
with, a requirement that a defendant prove by a preponderance of the evidence that but for error
things would have been different.”).

82
district court applied the guidelines in a non-mandatory fashion;5 and (2) nothing

in the record indicates that the district court would apply the same or a greater

sentence on remand under the new, advisory guidelines.

Although the panel repeatedly cites to the “reasonable probability” standard

of Dominguez Benitez as the touchstone of its inquiry, talismanic repetition of the

proper standard does not necessarily translate into its faithful application. Despite

the panel’s repeated assertions to the contrary, id., 398 F.3d at 1299-1301, the test

it applies appears identical to a “preponderance of the evidence” standard, a

standard Dominguez Benitez explicitly rejects as excessively stringent. Rodriguez

states that:

if it is equally plausible that the error worked in favor of the defense, the
defendant loses; if the effect of the error is so uncertain that we do not
know which, if either, side it helped the defendant loses. Where errors
could have cut either way and uncertainty exists, the burden is the
decisive factor in the third prong of the plain error test, and the burden
is on the defendant.

Id. at 1300.

Requiring a quantum of proof beyond equipoise is the preponderance of the

evidence standard. Under the preponderance of the evidence test, the defendant

5
For example, in Booker, the district court in defendant Fanfan’s case did not apply
applicable provisions of the guidelines even though they were mandatory at the time. United
States v. Booker, __ U.S. __, 125 S. Ct. 738, 747 (2005).

83
loses when the evidence is in equipoise because he did not present that slight

quantum of evidence necessary to tip the balance from equipoise to his favor. See,

e.g., Nat’l Lime Ass’n v. Envtl. Prot. Agency, 627 F.2d 416, 453 n.139 (D.C. Cir.

1980) (“[T]he standard of ordinary civil litigation, a preponderance of the

evidence, demands only 51% certainty.”); Black’s Law Dictionary 1201 (7th ed.

1999). However, Dominguez Benitez says that the “reasonable probability”

standard is more lenient than the preponderance of the evidence test. Dominguez

Benitez, 124 S. Ct. at 2342 (Scalia, J., concurring in the judgment); id. at 2340 n.9.

Thus, equipoise must of necessity be sufficient to satisfy the lesser burden of a

reasonable probability.6

6
Judge Carnes argues that my reading of the “reasonable probability” standard differs
from prior Circuit case law. He states that we have held in several cases that a defendant failed
to meet the “reasonable probability” standard when there was no evidence on the record that an
alleged error prejudiced him. Ante, at 32-33 (Carnes, J., concurring in denial of reh’g en banc).
However, I do not believe that any of the cases he cites are of particular significance to the
inquiry here. In each case there was record evidence contradicting the defendant’s claims of
prejudice.
In Henry v. Wainwright, the judge failed to instruct the jury about the consequences of a
6-6 split over whether to sentence the defendant to death. 743 F.2d 761, 763 (11th Cir. 1984)
(per curiam). However, the record contained evidence suggesting that the jury was never actually
deadlocked, belying the defendant’s claim that the lack of an instruction prejudiced him. Id.
Adams v. Wainwright presented a similar jury instruction claim in which the court felt “[b]ound
by” Henry because there was no evidence that a deadlock ever existed in the first place, 764 F.2d
1356, 1369 (11th Cir. 1985), and also presented an ineffective assistance of counsel claim
wherein the defendant failed to rebut a “strong presumption” that a jury is presumed to have
followed the trial court’s express, and correct, instructions. Id. And in Straight v. Wainwright,
the defendant’s theory of prejudice stemming from allegedly ineffective assistance of counsel
was so attenuated as to border on the incredulous. 772 F.2d 674, 680 (11th Cir. 1985). There,
the defendant claimed that his attorney rendered ineffective assistance by failing to “rehabilitate”
jurors who had stated “either that they could not return a death penalty in any case or that they

84
 To support this de facto preponderance of the evidence standard, Rodriguez

reaches back to the 1999 decision Jones v. United States, 527 U.S. 373, in which

the Supreme Court noted that when it was “just as likely” that an error prejudiced

the defendant as not, the defendant cannot meet his burden of showing that the

error affected his substantial rights. Rodriguez, 398 F.3d at 1299-1301 (citing

Jones, 527 U.S. at 394-95). However, Jones was decided well before Dominguez

Benitez specifically enunciated the standard by which the defendant must prove

prejudice in the plain-error context.

Obviously, we cannot hold that the Supreme Court has implicitly overruled

Jones in Dominguez Benitez. Rodriguez de Quijas v. Shearson/American Express

Inc., 490 U.S. 477, 484 (1989).7 However, we are confronted with language in

could not evaluate the evidence fairly, knowing that the defendant was charged with a capital
crime.” Id. He contended that if his attorney had successfully coaxed out more ambiguous
answers about jurors’ sentiments with respect to the death penalty through further questioning,
the prosecution would not have been able to strike them for cause, and would thus have had to
expend “expensive” peremptory challenges to eliminate them. Id. The result, apparently, would
have been a jury somewhat less inclined to sentence the defendant to death. Id.
In Rodriguez, in contrast, the defendant’s theory of prejudice requires no such flights of
fancy. We are certain that the district court erred, and the chance that this error prejudiced the
defendant is quite real — just as likely as not, as the panel itself admits. Further, there is no
evidence on the record in Rodriguez contradicting a showing of prejudice.
7
Indeed, that doctrine applies to situations, unlike this one, where one Supreme Court
case is unmistakably on point, but where the rationale underlying that decision has been
undermined indirectly by subsequent cases. See, e.g., Tenet v. Doe, __ U.S. __, 125 S. Ct. 1230,
1238 (2005); Hohn v. United States, 524 U.S. 236, 252-53 (1998); Agostini v. Felton, 521 U.S.
203, 237 (1997); Am. Trucking Ass’ns Inc. v. Smith, 496 U.S. 167, 180 (1990) (plurality
opinion).

85
Jones that is in direct conflict with the “reasonable probability” standard of

Dominguez Benitez, stating that a defendant cannot prove prejudice when it is

“just as likely” as not that an error was prejudicial. The question, therefore, is not

whether Dominguez Benitez implicitly overruled Jones by undermining its

underlying rationale, but rather how to resolve these seemingly irreconcilable

cases.8

The Supreme Court offers little guidance, if any, about the role of a Court of

Appeals when faced with conflicting precedent, although Justice Scalia has

recognized that such situations do arise. Kaiser Aluminum & Chem. Corp. v.

Bonjorno, 494 U.S. 827, 841 (1990) (Scalia, J., concurring). However, the

Seventh Circuit, when faced with the conflict Justice Scalia acknowledged in

Bonjorno, offered some helpful advice. It stated that when we are faced with

conflicting Supreme Court precedent, we should attempt to reconcile the two cases

in a manner which comports with their underlying policies. Mozee v. Am.

Commercial Marine Svc. Co., 963 F.2d 929, 935 (7th Cir. 1992) (citing Rodriguez

8
It would appear that we are encountering the difficulty of applying the various standards
for analyzing “prejudice” that Justice Scalia predicted in Dominguez Benitez. 124 S. Ct. at 2342
(Scalia, J., concurring) (“By my count, this Court has adopted no fewer than four assertedly
different standards of probability relating to the assessment of whether the outcome of trial
would have been different if error had not occurred….Such ineffable gradations of probability
seem to me quite beyond the ability of the judicial mind (or any mind) to grasp….That is
especially so when they are applied to the hypothesizing of events that never in fact occurred.”).

86
de Quijas, 490 U.S. at 484). In particular, it reasoned that we should begin by

asking “which line of cases embodies the general rule of construction and which

line of cases has more limited applicability.” Id. An estimation of which holding

the Supreme Court would likely apply if presented with the case may also suggest

the preferred precedent. Easter House v. Felder, 910 F.2d 1387, 1409 (7th Cir.

1990) (en banc) (Easterbrook, J., concurring) (“Inconsistent lines of precedent are

common in American law.…Such hair-splitting leaves judges of the inferior

federal courts in a difficult position, because any effort to reconcile and apply the

cases will be met with a convincing demonstration…that there is a fly in the

ointment.…I believe that despite the force of [the dissent’s] arguments, [the

majority] offers the best estimate of the course a majority of the [Supreme] Court

will take, and I therefore join [its] opinion.”).

It is hard to see why we would not decide that Dominguez Benitez, and not

Jones, is the controlling case here. Whereas Jones simply noted that, even if a

constitutional violation did exist, the defendant’s showing would not satisfy the

“substantial rights” prong under the facts in that case, 527 U.S. at 394-95,

Dominguez Benitez undertook to clearly articulate a burden of proof for plain-

error cases generally. 124 S. Ct. at 2336. Moreover, Jones could not, as Judge

Carnes suggests, have applied the Dominguez Benitez standard to a situation

87
“where there is no indication whether the error actually did have an adverse effect

on the outcome of the proceeding.” Ante at 35-36 (Carnes, J., concurring in denial

of reh’g en banc). The simple fact that Jones was decided over five years before

Dominguez Benitez established the “reasonable probability” standard belies any

argument that Jones somehow constitutes an application of that standard.

Thus, Dominguez Benitez, not Jones, embodies “the general rule of

construction” relating to plain-error review. Moreover, it is more likely that a

majority of the Supreme Court would determine that Dominguez Benitez applies

to this case instead of Jones. Eight members of the Court signed the majority

opinion in Dominguez Benitez, including the author of Jones and three of the four

Justices who signed his opinion. In contrast, only five members of the Court made

up the Jones majority. Further, in Jones the Supreme Court actually held that there

was no error of law in the first place, and that any hypothetical error had been

mitigated by the district court. Jones, 527 U.S. at 393-95. The Jones Court noted

that the substantial rights prong would not be satisfied only assuming arguendo

that such a constitutional error could still be found. Id. at 394-95. This represents

a marked departure from the case at bar, where we are certain that the district court

was operating under an erroneous premise of law.

Essentially, in cases like Rodriguez, where the defendant can prove that

88
Booker error denied him a constitutionally-mandated process and that the outcome

of that process cannot be known until the process actually takes place, a defendant

sufficiently undermines our confidence in the outcome of his sentencing to meet

the prejudice prong. See, e.g., United States v. Paladino, 401 F.3d 471, 486-87

(7th Cir. 2005) (Ripple, J., dissenting from denial of reh’g en banc); see also ante,

at 58-60 (Tjoflat, J., dissenting from denial of reh’g en banc) (noting that the

mandatory guidelines effectively foreclosed many avenues a defendant may now

pursue in requesting a more lenient sentence, such as arguing that the

recommended guidelines sentence is not a “just punishment,” or challenging the

wisdom of the Sentencing Commission’s policy decisions themselves); see also

United States v. Serrano-Beauvaix, 400 F.3d 50, 57-58 (1st Cir. 2005) (Lipez, J.,

concurring); United States v. Crosby, 397 F.3d 103, 115 (2d Cir. 2005).

Moreover, I believe that the result the panel reaches impermissibly trenches

upon the Federal Sentencing Act’s policy of allowing “the district court, not the

court of appeals, to determine, in the first instance, the sentence that should be

imposed in light of certain factors properly considered under the Guidelines.”

Williams v. United States, 503 U.S. 193, 205 (1992) (citing a 1986 congressional

amendment to the Act deleting provisions that authorized appellate courts to

correct a sentence imposed as a result of an incorrect application of the

89
guidelines). The statute itself reflects this consideration:

If the court of appeals determines that--
(1) the sentence was imposed in violation of law or imposed as a result
of an incorrect application of the sentencing guidelines, the court shall
remand the case for further sentencing proceedings with such
instructions as the court considers appropriate[.]

18 U.S.C. § 3742(f)(1) (2005). The Williams Court underscored the importance of

this language in the remand process, stating that “Section 3742(f)(1) does not call

for a remand every time a sentencing court might misapply a provision of the

Guidelines; rather, remand is required only if the sentence was ‘imposed as a

result of an incorrect application’ of the Guidelines.” Williams, 503 U.S. at 202-

03 (quoting 18 U.S.C. § 3742(f)(1)) (emphasis in original). Even under this

somewhat restrictive reading of the statute, in every case involving constitutional

Booker error, the district court surely has imposed a sentence “as a result of” an

incorrect application of the guidelines. Given the statutory language and the

policies behind it, that error would require a remand in the absence of evidence in

the record rendering it harmless.

Moreover, the Third Circuit held, pre-Booker, that this policy consideration

precluded speculation about the sentence a district court would impose upon

remand when determining whether a guidelines sentencing error affected a

defendant’s “substantial rights,” making such errors presumptively prejudicial. In

90
United States v. Knight, 266 F.3d 203 (3d Cir. 2001), the district court applied an

incorrect sentencing range, but imposed a sentence that also fell within the correct

guideline range. Id. at 205. The Knight Court refused to speculate about whether

the district court would impose an equivalent sentence on remand for purposes of

the plain-error “substantial rights” inquiry. Id. at 208. Instead, it remanded for

resentencing. Id. at 210. Quoting Williams, it stated that this approach

effectuated the Supreme Court’s determination of the federal sentencing statute’s

intent to allow the district court to determine the proper guidelines sentence in the

first instance. Id. at 208 (quoting Williams, 503 U.S. at 205 (1992)).9

Other pre-Booker precedent also presumed prejudice in cases when a

sentencing error’s effect on the length of a defendant’s sentence was

extraordinarily difficult to ascertain. See, e.g., United States v. Plaza-Garcia, 914

F.2d 345, 347-48 (1st Cir. 1990) (Breyer, C.J.) (vacating and remanding an illegal

sentence also falling within the correct guidelines range under the plain-error

doctrine because it “may well have been influenced by the [erroneous] sentencing

recommendation”); United States v. Reyna, 358 F.3d 344, 351-52 (5th Cir.) (en

9
Indeed, this circuit has expressed similar concerns. In determining that a defendant
could appeal a sentence enhancement where the sentence also fell within the guidelines range he
had advocated before the district court, we said that we were “not willing to speculate as to
whether appellant’s sentence would have been the same without the enhancement. In our view,
that determination is for the district court in the first instance.” United States v.
Fuente-Kolbenschlag, 878 F.2d 1377, 1379 n.7 (11th Cir. 1989).

91
banc), cert. denied, 124 S. Ct. 2390, 158 L. Ed. 2d 966 (2004) (presuming that

denial of defendant’s right to allocution caused prejudice, because of the nature of

the right and the difficulty of proving the violation affected a specific sentence);

United States v. Adams, 252 F.3d 276, 287 (3d Cir. 2001) (same); United States v.

Alba Pagan, 33 F.3d 125, 130 (1st Cir. 1994) (“[T]he impact of the omission [of

the right to allocution] on a discretionary decision is usually enormously difficult

to ascertain.”); United States v. Prouty, 303 F.3d 1249, 1252-53 (11th Cir. 2002)

(presuming prejudice “where the defendant was not afforded the opportunity to

allocute and the court did not impose the lowest sentence under the guidelines”).

As Judge Tjoflat and Judge Lipez of the First Circuit have pointed out, the effects

of constitutional Booker error are similarly hard to gauge. Ante, at 62-66 (Tjoflat,

J., dissenting from denial of reh’g en banc); Serrano-Beauvaix, 400 F.3d at 56-61

(Lipez, J., concurring); see also Paladino, 401 F.3d at 486-87 (Ripple, J.,

dissenting from denial of reh’g en banc); United States v. Barnett, 398 F.3d 516,

526-29 (6th Cir. 2005); United States v. Crosby, 397 F.3d at 116-18.

Accordingly, I respectfully dissent from the denial of rehearing en banc.

92