dissenting:
The criminal bears responsibility for the commission of the crime. He violates the law at the peril of punishment. The judges, trial and appellate, bear responsibility for the justice of the sentence. A sentence that exceeds the term prescribed by law is illegal. The judge who imposes such a sentence also violates the law, but he pays the price only in his conscience. As judges, we cannot escape our responsibilities both to the law and to our own moral principles by invoking a bureaucratic reading of procedural rules to allow that kind of sentence to be imposed. The majority opinion has scrupulously cited the rubric and affixed the stamps: No objection in the trial court; we therefore review only for plain error; plain error is found only when manifest injustice is committed. The litany has all the right words, but, to me, the conclusion is wrong. I, therefore, respectfully dissent.
Had the district court applied the correct guideline — § 3B1.3 — it could have sentenced Brunson to imprisonment for no more than eight months. Now he must serve eighteen, more than twice as long a term. Ten months may not be a long time when measuring the history of time or the age of the earth, but it is 300 days of misery to the prisoner who must serve it. That the district court erred in imposing the sentence we all agree.1 Merely reading the Guidelines makes the error “plain,” but my brothers find no miscarriage of justice. I believe that justice has been aborted.
On remand the district court repeated the error it committed when it originally sentenced Brunson and for which it was previously reversed.2 Federal Rule of Criminal Procedure 52 permits “plain error or defects affecting substantial rights” to be noticed “although they were not brought to the attention of the court.” To conclude that the mistake is not “plain” enough to warrant reversal is to exalt a form of analysis over the substantial rights of the defendant. That, to me, was not the intent of Rule 52. “Orderly rules of procedure do not require sacrifice of the rules of fundamental justice.”3
The majority seeks to justify the result by noting that the sentence of 18 months is “well below the statutory maximum of twenty years.” That is right but irrelevant. The Sentencing Reform Act, from which the Sentencing Guidelines derive their authority, provides that “except as otherwise specifically provided, a defendant who has been found guilty of an offense ... shall be sentenced in accordance with” its provisions.4 The Act in effect amends 18 U.S.C. § 215, under which Brunson was sentenced, and the various other sentencing statutes in order to “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6) (1988).
The majority advances another, but to me no better, justification for affirming: “if the case were remanded the trial judge could reinstate the same sentence (assuming of course that he included a reasonable explanation for the departure).” This, of course, assumes that there is some justification for departure — an assumption that, as far as I can tell, is not supported by the record. The district court’s remarks at the sentencing proceeding related solely to Brunson’s position as an assistant district attorney.
Indeed, this statement seems to me suggestive of harmless error analysis. As we stated in United States v. Stephenson,5 misapplication of the Guidelines is not subject to harmless error analysis, but requires remand for resentencing.
*946Brunson committed a crime. He deserves to be sentenced to what the law allows, but not to more. The nature of the district court’s error and our condoning its action makes Brunson’s punishment exceed his crime.
. Majority opinion, p. 944.
. United States v. Brunson, 882 F.2d 151 (5th Cir.1989).
. Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941).
. 18 U.S.C. § 3551(a) (1988).
. United States v. Stephenson, 887 F.2d 57, 62 (5th Cir.1989), cert. denied sub nom., Goff v. United States, - U.S. -, 110 S.Ct. 1151, 107 L.Ed.2d 1054 (1990).