U.S. v. Guzman

• Decision Date: 17 August 2005
• Docket Number: No. 04-1888.,04-1888.
• Citation: 419 F.3d 27
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. José GUZMÁN, Defendant, Appellant.

419 F.3d 27

UNITED STATES of America, Appellee, v. José GUZMÁN, Defendant, Appellant.

No. 04-1888.

United States Court of Appeals, First Circuit.

Submitted June 6, 2005.

Decided August 17, 2005.

Michael R. Schneider, Ryan M. Schiff, and Salsberg & Schneider on brief for appellant.

Michael J. Sullivan, United States Attorney, and Patrick M. Hamilton, Assistant United States Attorney, on brief for appellee.

Before BOUDIN Chief Judge, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant José Guzmán asserts that the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), entitles him to resentencing under non-mandatory sentencing guidelines. Employing the plain error analysis applicable to unpreserved claims of Booker error, we conclude that the appellant suffered no cognizable prejudice resulting from the application of a mandatory guidelines system. Accordingly, we affirm his sentence.

I. Background

On November 10, 1994, a federal grand jury handed up a multi-count indictment charging the appellant with one count of conspiracy to possess cocaine base with intent to distribute, seven counts of possessing with intent to distribute, distributing, and aiding and abetting the distribution of cocaine base, and one count of conspiracy to acquire firearms in exchange for illegal drugs. See 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. §§ 2, 371. These charges stemmed from the appellant's alleged participation, with four codefendants, in the sale of crack cocaine to undercover officers on eleven separate occasions and the coconspirators' plan to acquire weapons from those officers in exchange for drugs.

After negotiating a plea agreement, the appellant pleaded guilty to all counts. The district court convened a disposition hearing on February 9, 1996, and sentenced the appellant to a 240-month incarcerative term (a term that was within the applicable guideline sentencing range of 210 to 262 months). The appellant challenged that sentence but, after some procedural skirmishing (not relevant here), a panel of this court affirmed it. United States v. Guzmán, 132 F.3d 31 (1st Cir.1997) (unpublished table decision).

On October 7, 1998, the appellant filed a habeas petition, see 28 U.S.C. § 2255, in which he claimed, among other things, that his sentence had been illegally imposed. The district court wisely appointed counsel, who filed an amended section 2255 petition. On June 4, 2002, the court granted the amended petition; it found that defense counsel's failure at sentencing to present humanizing evidence and to argue for a sentence at the low end of the guideline sentencing range constituted ineffective assistance. See Guzmán v. United States, No. 98-12086, slip op. at 1 (D. Mass. June 4, 2004) (unpublished). Accordingly, the court vacated the appellant's sentence.

The district court convened a new sentencing hearing on June 18, 2004. This time, the court imposed a 210-month incarcerative term. That term was at the nadir of the guideline sentencing range. This timely appeal followed.

II. Analysis

In this venue, the appellant challenges his 210-month sentence. This challenge devolves from Booker, in which the Supreme Court held that a defendant's Sixth Amendment right to trial by jury is violated when his sentence is imposed under a mandatory guidelines system that gives decretory significance to judge-found facts. 125 S.Ct. at 756. The appellant argues that because he was resentenced prior to the Booker decision and under the mandatory guidelines system then in effect, his sentence is unconstitutional.

The appellant did not make anything resembling a Sixth Amendment objection at the time of his resentencing, so his claim of error is unpreserved. The appellant concedes that point, but he mounts an aggressive attack on this court's standard of review for unpreserved claims of Booker error. In the course of that attack, he maintains both that the articulation of the plain error test, as set forth in United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.2005), and its progeny, should not apply to him and that, in all events, the application of that test violates due process. In his view, we ought to abandon Antonakopoulos and instead adopt one of two alternate approaches. We first repulse the appellant's assault on Antonakopoulos and then, applying our wonted standard of review, determine whether he is entitled to the relief that he seeks.

A. Standard of Review

Where, as here, a claim of Booker error has not been preserved, it is deemed forfeited and we must apply the plain error standard, as articulated in United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). See Booker, 125 S.Ct. at 745; United States v. Heldeman, 402 F.3d 220, 223-24 (1st Cir.2005). In order to establish entitlement to relief under that stringent test, an appellant must show "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected [his] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001).

In Antonakopoulos, this court addressed the application of the plain error test in the context of unpreserved claims of Booker error. 399 F.3d at 75. We explained that a Booker error occurs not when the judge finds facts necessary to the sentencing determination but, rather, when the defendant is sentenced under a mandatory guidelines system that gives decretory significance to judge-found facts. Id. Thus, in the hindsight provided by Booker, the first two prongs of the plain error test are met when the defendant shows that the sentencing court treated the guidelines as mandatory rather than advisory. Id.

With respect to the third plain error prong, the defendant bears the burden of showing that, had the error not occurred, there is a "reasonable probability" that he would have received a lesser sentence. Id. Under that standard, "the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding." Id. at 78 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004)). This means that the defendant must persuade the court that were it not for the then-mandatory nature of the sentencing guidelines, it is reasonably likely that the district court would have imposed a more lenient sentence.

The appellant makes a twofold rejoinder to this format. First, even though he did not preserve his claim of Booker error, he nonetheless asseverates that the Duarte plain error test, adopted in Antonakopoulos, should not apply to his case because he could not reasonably have anticipated the "dramatic transformation in sentencing law" wrought by Booker. Requiring such "clairvoyance," the appellant says, violates his due process rights under the Fifth Amendment.

We reject these importunings. As a general rule, "a criminal defendant must seasonably advance an objection to a potential constitutional infirmity in order to preserve the point." Derman v. United States, 298 F.3d 34, 44 (1st Cir.2002). While a narrow exception to this principle applies where "objections or defenses ... were not known to be available at the time they could first have been made," Bennett v. City of Holyoke, 362 F.3d 1, 7 (1st Cir.2004) (internal quotation marks omitted), that exception is pertinent only if "(i) at the time of the procedural default, a prior authoritative decision indicated that the defense was unavailable, and (ii) the defense became available thereafter by way of supervening authority." Id. Alternatively stated, the exception applies only when the futility of raising an objection or defense was unequivocally apparent at the time in question.

That is clearly not the case here. At the time of the appellant's resentencing, the constitutionality of the sentencing guidelines was a hot-button issue in criminal law circles. The Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), had paved the way for a Sixth Amendment challenge to the federal sentencing guidelines. Moreover, a closely related issue, involving state sentencing guidelines, was pending before the Supreme Court — an issue that the Court resolved, favorably to the defendant, in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The bottom line is that, at the time the district court resentenced the appellant, the constitutionality of the guidelines was very much in play. Under these circumstances, there is no principled basis for excusing the appellant's procedural default. See United States v. Del Rosario, 388 F.3d 1, 13-14 & n. 8 (1st Cir.2004) (rebuffing a similar argument).

The second facet of the appellant's rejoinder is equally unavailing. He entreats us to modify our approach to forfeited errors in the Booker context and adopt either the presumption-of-prejudice approach, see United States v. Barnett, 398 F.3d 516, 526-28 (6th Cir.2005), or the automatic-remand approach, see United States v. Crosby, 397 F.3d 103, 117-18 (2d Cir.2005). We decline this invitation.

We recognize that the courts of appeals have taken a variety of approaches to the treatment of unpreserved claims of Booker error. In a multi-panel circuit, however, newly constituted panels ordinarily are constrained by prior panel decisions directly (or even closely) on point. See Eulitt v. Me. Dep't of Educ., 386 F.3d 344, 349-50 (1st Cir.2004) (discussing the law-of-the circuit doctrine); United States v. Rodriguez, 311 F.3d 435, 438-39 (1st Cir.2002) (similar). So it is here: we are firmly bound by this court's prior panel opinions, such as Heldeman and Antonakopoulos.

To be sure, there are two narrow exceptions to this iteration of the law-of-the-circuit principle. Under the first of these exceptions, "[a]n existing pan...