U.S. v. Rodriguez

• Decision Date: 19 April 2005
• Docket Number: No. 04-12676.,04-12676.
• Citation: 406 F.3d 1261
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vladimir RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

406 F.3d 1261

UNITED STATES of America, Plaintiff-Appellee, v. Vladimir RODRIGUEZ, Defendant-Appellant.

No. 04-12676.

United States Court of Appeals, Eleventh Circuit.

April 19, 2005.

Lisa Walsh, Miami, FL, for Defendant-Appellant.

Karin B. Hoppmann, Tampa, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida (No. 03-00217-CR-T-23-EAJ); William J. Castagna, Judge.

ON REQUEST FOR POLL FOR REHEARING EN BANC

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and PRYOR, Circuit Judges.

ORDER:

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.

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 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, 123 L.Ed.2d 508 (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, 159 L.Ed.2d 157 (2004) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)). Of critical importance, "[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.

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. 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 1293. 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, 124 Fed.Appx. 398, 404 (6th Cir.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 1282-83 ("[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, 113 L.Ed.2d 302 (1991)). No matter how clear it may be from the record that the defendant would not have received a lesser sentence, a pre-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, 123 L.Ed.2d 508; 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, 403 F.3d 727, 733, 2005 WL 807008, *4 (10th Cir.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).

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, 160 L.Ed.2d 621 (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 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...