concurring in part and dissenting in part:
In creating a Fifth Amendment due process right that is abridged whenever a defendant uses a peremptory challenge to strike a juror who should have been excused for cause, the majority constitutionalizes a statutory problem, approaches the problem as if error had been preserved (which it wasn’t), and accomplishes through the back door what Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), forecloses through the front. I therefore dissent.
In Ross, the Supreme Court held that “[s]o long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.” Id. at 88, 108 S.Ct. 2273. Apart from the Sixth Amendment’s guarantee of an impartial jury, there is no constitutional right to a peremptory challenge. Id. Because peremptory challenges are a creature of statute, the majority should not have gone beyond the Sixth Amendment in search of a constitutional basis for reversal.
Instead, this should be treated as an ordinary statutory question that could and should be resolved by ordinary statutory analysis. We have this case on direct review of a federal criminal proceeding. We should, therefore, start with Rule 24(b) of the Federal Rules of Criminal Procedure, which is the source of the statutory entitlement to per-emptories, and end with Rule 52, for “it is that Rule which by its terms governs direct appeals from judgments of conviction in the federal system, and therefore governs this case.” Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 1548, 137 L.Ed.2d 718 (1997).
Rule 24(b) gives defendants jointly ten peremptory challenges (unless the court allows more, which it may do if asked). Martinez in fact got to exercise all of his peremptory challenges; he never objected that the district court denied him “the full complement of peremptory challenges to which he [was] entitled.” United States v. Baker, 10 *660F.3d 1374, 1404 (9th Cir.1993). Nor did he ask for an extra peremptory to compensate for the one that he decided to use on Gilbert, or object to using -a peremptory for this purpose. Nothing suggests that he would have used that peremptory on anyone else. In short, we aré left with no idea whether Martinez “wasted” a peremptory, let alone wanted to strike another venireman who was not to his liking (for a legitimate reason) but couldn’t do so because he was out of challenges. What we do know is that Martinez let the jurors be sworn without questioning either their impartiality or the process by which they were impaneled.
Having failed to tell the district court that its procedures were contrary to Rule 24(b), or that his due process rights were adversely affected, Martinez forfeited any claim that he was deprived of the ten challenges he was jointly allowed under Rule 24(b). It is well settled that failure to raise an issue in the district court waives the argument. Counsel are quite used to making a record during jury selection, and courts have ample discretion to respond.
Our review is therefore constrained by Rule 52(b), which we must apply as outlined in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).1 See Johnson, 117 S.Ct. at 1548. Olano requires that “before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights.” Id. at 1548-49 (citing Olano, 507 U.S. at 732, 113 S.Ct.1770) (internal quotation marks omitted; alteration in Johnson).
Assuming that the district court erred in denying Martinez’s challenge of Gilbert for cause,2 it could not have been “plain” error to let Martinez use a peremptory to excuse the juror whom he had challenged for cause. This is so for at least three reasons. First,under Ross, using a peremptory to cure the trial court’s improper failure to grant a challenge for cause does not violate a constitutional right without a showing of prejudice. Here, there is no dispute that the jury which was impaneled was impartial. Second, as the majority recognizes, we have never answered the specific question that it resolves today— whether there is a Fifth Amendment due process violation if the applicable law does not require use of a peremptory challenge to cure an erroneous refusal to remove for cause. So far as I know, no one else has, either. Thus, the law definitely was not clear at the time of trial, or now. Finally, nothing in Ross or Rule 24(b) itself suggests that the exercise of peremptories is “denied” if the defendant uses a challenge to strike a juror who should been excused for cause. Indeed, we distinguished Ross on precisely this footing in United States v. Annigoni, 96 F.3d 1132 (9th Cir.1996) (en banc), indicating that “the [trial] court’s erroneous denial of Ross’s challenge for cause prompted Ross to expend one of his peremptory challenges to remove the questionable juror [but] it never deprived him of the right of peremptory challenge.” Id. at 1146 (emphasis in original). As the statutory violation was waived, we don’t have to decide whether Martinez’s statutory right to ten jointly exercised challenges was “impaired,” nor do we have to decide whether automatic reversal remains the remedy for statutory error. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled on other grounds by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); cf. Annigoni, 96 F.3d at 1147 (rejecting harmless-error analysis for the erroneous denial of a peremptory challenge). Since no plain error appears, that’s the end of this ease so far as I am concerned.
Martinez’s failure to preserve and pursue the available avenue of relief for violation of his statutory rights gives this court no license to make the Due Process Clause a default analysis. The Supreme Court has said over and over that “peremptory challenges are not of constitutional dimension.” Ross, 487 U.S. at 88, 108 S.Ct. 2273 (citing Gray v. Mississippi, 481 U.S. 648, 663, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987)); see Swain, 380 U.S. at 219, 85 S.Ct. 824; Stilson *661v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 63 L.Ed. 1154 (1919); see also (after Ross) Georgia v. McCollum, 505 U.S. 42, 57, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 620, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). Rather, “[t]hey are a means to achieve the end of an impartial jury.” Ross, 487 U.S. at 88, 108 S.Ct. 2273. That end was indisputably achieved in this case. To find a due process violation for “effectively” denying or impairing Martinez’s “right to the full complement of peremptory challenges to which he was entitled under federal law,” as the majority does, maj. op. at 659, comes full circle by “effectively” making the exercise of a peremptory challenge a constitutional right — and a right, at that, whose dilution requires automatic reversal.
Constitutionalizing the impairment of peremptory challenges is not inconsequential. Trial courts, state and federal, rule on cause challenges by the minute. A statutory violation (state or federal) may well require reversal if the defendant has exhausted his peremptories by striking a juror he unsuccessfully challenged for cause; but there is no reason why the door should be open to review of state or federal statutory violations for constitutional error that can never be treated as harmless.
I would not have reached the issue the majority decides. I would not convert a violation of Rule 24(b) (assuming there was one) into a constitutional violation, and I would not engraft a common law remedy of per se reversal for a Rule violation (assuming it survives Ross) onto the Due Process Clause of the Fifth Amendment. I therefore dissent from Part II.
. The majority approaches the appeal as if Martinez preserved a Rule 24 error for review. He didn’t, and the majority’s analysis goes astray for this reason as well.
. I assume error in this respect because the majority finds there was error.