                                                           PRECEDENTIAL


             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                            ____________

                             No. 12-3149
                            ____________


                  UNITED STATES OF AMERICA

                                  v.

       JOSE LUIS FLORES-MEJIA, a/k/a JOSE FLORES MEJIA,
          a/k/a JOSE LUIS MEJIA, a/k/a MANUEL MENDEZ

                        Jose Luis Flores-Mejia,

                                                     Appellant



           On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                    (D. C. No. 2-11-cr-00712-01)
             District Judge: Honorable Stewart Dalzell


    Submitted Under Third Circuit L.A.R. 34.1(a) on May 10, 2013
               Argued En Banc on February 19, 2014


Before: MCKEE, Chief Judge, RENDELL, AMBRO, FUENTES, SMITH,
 FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR.,
    VANASKIE, SHWARTZ, SLOVITER and ROTH, Circuit Judges


                    (Opinion filed: July 16, 2014)
Robert Epstein, Esquire (Argued)
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

                     Counsel for Appellant


Robert A. Zauzmer, Esquire (Argued)
Jeffery W. Whitt, Esquire
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

                     Counsel for Appellee



                                       O P I N I ON


ROTH, Circuit Judge:

       Jose Luis Flores-Mejia appeals the sentence imposed on him for his conviction of
the offense of reentry after deportation. His appeal raises the issue of what a defendant
must do in order to preserve a challenge to the procedural reasonableness of a sentence.
At the sentencing hearing, Flores-Mejia made a mitigation argument, based on his
cooperation with the government. Flores-Mejia contends that his initial presentation of
this argument is sufficient, without more, to preserve his claim that the District Court
committed procedural error by failing, when it pronounced sentence, to give meaningful
consideration to this argument. The government counters that Flores-Mejia’s failure to
object, at a time when the District Court could have promptly addressed it, did not
preserve the issue for appeal and leaves his claim subject to plain error review.

        We have decided that, to assist the district courts in sentencing, we will develop a
new rule which is applicable in those situations in which a party has an objection based
upon a procedural error in sentencing but, after that error has become evident, has not
stated that objection on the record. We now hold that in such a situation, when a party
wishes to take an appeal based on a procedural error at sentencing – such as the court’s
failure to meaningfully consider that party’s arguments or to explain one or more aspects

                                             2
of the sentence imposed – that party must object to the procedural error complained of
after sentence is imposed in order to avoid plain error review on appeal.1 Our panel
holding in United States v. Sevilla, 541 F.3d 226 (3d Cir. 2008), 2 differs from our
holding today and is superseded.

                                        I. FACTS

        Flores-Mejia, a citizen of Mexico, pled guilty to one count of reentry after
deportation, in violation of 8 U.S.C. § 1326(a). This illegal reentry was in fact Flores-
Mejia’s sixth illegal entry into the United States. Flores-Mejia had an extensive criminal
record with 18 prior convictions, including several for repeated assaults on his wife. As
his attorney admitted at sentencing, “This man has an atrocious record.” JA103. Based
on a criminal history category of VI and an offense level of 21, including a 16-level
enhancement for a prior violent crime, his Guidelines range was 77 to 96 months in
prison.

       In his sentencing memorandum, Flores-Mejia raised several grounds for
downward departures and variances. At issue here is his argument that he cooperated
with the government by providing information regarding a homicide and a prostitution
ring. At the sentencing hearing, the District Court heard argument on a number of
Flores-Mejia’s grounds for mitigation and denied them. The parties then addressed
Flores-Mejia’s argument that his cooperation warranted a reduced sentence. Both the
government and defense counsel made proffers on the issue. The government argued that
the homicide in question had already been solved and that the information about the
prostitution ring did not involve involuntary sex trafficking or children and so it fell
outside the ordinary purview of federal law enforcement. For those reasons, the
government asserted that the cooperation did not warrant a variance. Following this
colloquy, the District Court stated: “Okay, thanks. Anything else?” There was no reply
from either party; instead each side summed up its position on sentencing. On
completion of the summations, the District Court proceeded to sentence Flores-Mejia to
78 months in prison. Defense counsel did not at that time object to the court’s failure to
rule on the request for variance based on the alleged cooperation, nor did she point out
the District Court’s failure to explicitly address or give further consideration to that
argument.


1
  A party may of course make an objection to a procedural error at an earlier point as
when, for example, a substantive request is denied and procedurally the defendant has
objected to a lack of meaningful consideration of that request. Having already made an
objection when the procedural error became evident, the defendant need not repeat the
objection after sentence is imposed.
2
  In so holding, the panel in Sevilla considered itself bound by our prior en banc decision
in United States v. Grier, 475 F.3d 556 (2007) (en banc).
                                            3
      Flores-Mejia appealed, contending that his sentence is procedurally unreasonable
because the District Court failed to sufficiently consider his argument that his attempts at
cooperation warranted a lower sentence. Based on our decision in Sevilla, a divided
panel of this Court agreed. United States v. Flores-Mejia, 531 F. App’x 222 (3d Cir.
2013). We then granted en banc review.

       II. PRESERVING A CLAIM OF PROCEDURAL ERROR FOR APPEAL

       In United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006), we set forth a three-
step framework for sentencing. First, a district court must calculate a defendant’s
Guidelines sentence as it would have before United States v. Booker, 543 U.S. 220
(2005). Gunter, 462 F.3d at 247. Second, a district court must “formally rule on the
motions of both parties and state on the record whether they are granting a departure and
how that departure affects the Guidelines calculation, and take into account our Circuit’s
pre-Booker case law, which continues to have advisory force.” Id. (citation, quotation
marks and alterations omitted). Third, a district court “[is] required to exercise [its]
discretion by considering the relevant § 3553(a) factors . . . in setting the sentence [it
imposes] regardless whether it varies from the sentence calculated under the
Guidelines.” Id. (internal citation, quotation marks, and alterations omitted).

       To satisfy step three, the district court must “acknowledge and respond to any
properly presented sentencing argument which has colorable legal merit and a factual
basis.” United States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012). Failure to give
“meaningful consideration” to any such argument renders a sentence procedurally
unreasonable which, when appealed, generally requires a remand for resentencing. Id.
(internal citation omitted).

        This error of failure to give meaningful consideration must be brought to the
district court’s attention through an objection. If a defendant fails to preserve the error
for appeal by objecting, the authority of the court of appeals to remedy the error is
“strictly circumscribed.” Puckett v. United States, 556 U.S. 129, 134 (2009). However,
Rule 52(b) of the Federal Rules of Criminal Procedure provides for limited relief: “A
plain error that affects substantial rights may be considered even though it was not
brought to the court’s attention.”

       The issue in this appeal is whether, in order to preserve the objection for appeal
and to avert plain error review, a defendant must object after the sentence is pronounced
to the district court’s failure to meaningfully consider his argument.3 In Sevilla, we held

3
  Of course, as we set out above, if at any prior point a district court had ruled on the
request for a variance, the defendant could object to a lack of meaningful consideration of
the request at that time and there would be no need to do so again after sentence was
imposed.
                                             4
that “the District Court’s failure to address those issues [when sentence was pronounced]
did not require Sevilla to re-raise them to avert plain error review of these omissions.”
Sevilla, 541 F.3d at 231. However, for the reasons that follow, we now hold that a
defendant must raise any procedural objection to his sentence at the time the procedural
error is made, i.e., when sentence is imposed without the court having given meaningful
review to the objection. Until sentence is imposed, the error has not been committed. At
the time that sentence is imposed, if the objection is made, the court has the opportunity
to rectify any error by giving meaningful review to the argument.

        We are adopting this new rule for several reasons. First, we are dealing with a
procedural objection to the sentencing process. We must appreciate the difference
between a challenge to the substantive reasonableness of the sentence and a challenge to
its procedural reasonableness. While a substantive objection to the sentence that a court
will impose is noted when made and need not be repeated after sentencing, a procedural
objection is to the form that the sentencing procedure has taken, e.g., a court’s failure to
give meaningful review to a defendant’s substantive arguments. See United States v.
Judge, 649 F.3d 453, 458 (6th Cir. 2011). Unlike a substantive objection to a sentence, a
procedural defect in a sentence may not occur until the sentence is pronounced, and,
unless the objection is meaningfully dealt with earlier, no challenge to the sufficiency of
the court’s explanation can be made until that time. Simply put, a defendant has no
occasion to object to the district court’s inadequate explanation of the sentence until the
district court has inadequately explained the sentence. Thus, the procedural objection can
be raised for the first time only after the sentence is pronounced without adequate
explanation.4

        Second, we are satisfied that there are compelling reasons why objecting to
procedural error after the sentence is pronounced would promote judicial efficiency.
Objecting when sentence is pronounced permits the quick resolution of such errors. As
the Supreme Court observed, “errors are a constant in the trial process,” and when a
defendant contemporaneously objects, the district court “can often correct or avoid the
mistake so that it cannot possibly affect the ultimate outcome.” Puckett, 556 U.S. at 134
(citation and quotation marks omitted); see also United States v. Merced, 603 F.3d 203,
214 (3d Cir. 2010) (“[T]he sentencing judge, not the court of appeals, is in a superior
position to find facts and judge their import under § 3553(a) in the individual case.”)

4
  For this reason, the rule we adopt is consistent with Federal Rule of Criminal Procedure
51(b), i.e., “A party may preserve a claim of error [not giving meaningful consideration
to the defendant’s argument] by informing the court—when the court ruling or order is
made or sought [at imposition of sentence]—of the action the party wishes the court to
take [to give meaningful review to defendant’s argument in connection with sentencing],
or the party’s objection to the court’s action [failure to give meaningful review to that
argument] and the grounds for that objection [failure to give meaningful review to that
argument].”
                                             5
(internal quotation marks omitted) (quoting United States v. Tomko, 562 F.3d 558, 566
(3d Cir. 2009) (en banc)). Contemporaneous objection also advances the public interest
because “[r]equiring the error to be preserved by an objection creates incentives for the
parties to help the district court meet its obligations to the public and the parties.” United
States v. Villafuerte, 502 F.3d 204, 211 (2d Cir. 2007). By encouraging defendants to
make objections before the court which is best equipped to resolve the errors efficiently
and effectively, we are promoting better sentencing practices.

       Third, requiring that the procedural objection be made at the time of sentencing
prevents “sandbagging” of the court by a defendant who remains silent about his
objection to the explanation of the sentence, only to belatedly raise the error on appeal if
the case does not conclude in his favor. See, e.g., Puckett, 556 U.S. at 134.

        Our new rule is consistent with the holdings of most other circuit courts of appeals
that have ruled on the issue. The First, Fifth, Sixth, Eighth, Ninth, Tenth, and D.C.
Circuit Courts of Appeals all require a defendant to object when sentence is pronounced
if a district court makes the procedural error of failing to adequately explain a sentence.
See, e.g., United States v. Davila-Gonzalez, 595 F.3d 42, 47 (1st Cir. 2010); United States
v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009); United States v. Vonner, 516
F.3d 382, 385–86 (6th Cir. 2008) (en banc); United States v. Rice, 699 F.3d 1043, 1049
(8th Cir. 2012); United States v. Rangel, 697 F.3d 795, 805 (9th Cir. 2012); United States
v. Romero, 491 F.3d 1173, 1177–78 (10th Cir. 2007); United States v. Wilson, 605 F.3d
985, 1033–34 (D.C. Cir. 2010).

        Only the Fourth Circuit Court of Appeals does not consistently require the
challenge to be raised immediately following the imposition of the sentence by the
district court. United States v. Lynn, 592 F.3d 572, 578–79 (4th Cir. 2010). The court in
Lynn reasoned that Rule 51 “does ‘not require a litigant to complain about a judicial
choice after it has been made.’” Id. at 578 (quoting United States v. Bartlett, 567 F.3d
901, 910 (7th Cir. 2009)).5 In reaching its decision, the court in Lynn warned that
“[r]equiring a party to lodge an explicit objection after the district court explanation
would saddle busy district courts with the burden of sitting through an objection—
probably formulaic—in every criminal case.” Lynn, 592 F.3d at 578 (internal quotation
marks and citation omitted).

       Under the rule we adopt, there will of course be an objection to a district court’s
failure to give meaningful consideration to a procedural error in sentencing but it is

5
  See footnote 4, supra, for our position that the rule we adopt does not violate Rule
51(b). Note also, that although the Seventh Circuit Court of Appeals in some instances
has not required an objection to a procedural error at the time sentence was imposed, see,
e.g., United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), it has not always done
so. See, e.g., United States v. Anderson, 604 F.3d 997, 1003 (7th Cir. 2010).
                                              6
hardly a significant impediment to the efficient administration of justice. Sentencing is a
complex process, and a district judge at sentencing must meet numerous requirements.
An objection at sentencing, even if sometimes time-consuming, serves the important
purpose of reminding the judge of these requirements and allowing the judge to
immediately remedy omissions or clarify and supplement inadequate explanations. The
rule adopted in Lynn and in Sevilla imposes a greater burden on busy district courts by
depriving them of contemporaneous notice of errors and of the opportunity to correct
them. The burden of sitting through an objection at sentencing pales in comparison to the
time and resources required to correct errors through a lengthy appeal and resentencing.6
Our strong interest in judicial economy, heightened in these times of fiscal restraint and
judicial budgetary concerns, weighs heavily in favor of a rule under which the defendant
must contemporaneously object to concerns regarding the procedural reasonableness of a
sentence.

       For these reasons, we hold that, in a criminal prosecution, unless a relevant
objection has been made earlier, a party must object to a procedural error after the
sentence is pronounced in order to preserve the error and avoid plain error review. 7 8

                          III. THE MERITS OF THE APPEAL

       We have determined that, in order to preserve for appeal the issue of the lack of
meaningful consideration of his argument on mitigation, Flores-Mejia should have
objected after sentence was pronounced. He did not, and thus, under the rule we now
adopt, he did not preserve the issue for appeal. An unpreserved issue is reviewed for

6
  Resentencing imposes a significant burden on district courts: not only do they have to
find time in their busy dockets to revisit errors that could have been resolved with a
contemporaneous objection at the original sentencing but they also have the burden of
reconvening the parties involved, including the defendant, attorneys, witnesses, and law
enforcement authorities. See, e.g., United States v. Williams, 399 F.3d 450, 459 (2d Cir.
2005) (warning of the burdens of resentencing, including assuring the presence of the
defendant, who “will often be serving a sentence at a distant location”).
7
  Because defendants sentenced before the issuance of this opinion had not been warned
that they had a duty to object to the sentencing court’s procedural error after sentencing,
we will not apply this new rule retroactively.
8
  To ensure that timely objections are made, we encourage district courts at sentencing to
inquire of counsel whether there are any objections to procedural matters. However,
unlike the Sixth and Eleventh Circuit Courts of Appeals, we will not make this a
requirement that district judges must follow. Contra United States v. Bostic, 371 F.3d
865, 872 (6th Cir. 2004); United States v. Jones, 899 F.2d 1097, 1103 (11th Cir. 1990).
We believe that the burden of objecting to errors remains with the parties.
                                            7
plain error. An error is plain if it is “clear” or “obvious,” “affects substantial rights,” and
“affects the fairness, integrity or public reputation of judicial proceedings.” United States
v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006) (quoting United States v. Olano, 507 U.S.
725, 732, 734 (1993)). An error “affects substantial rights” when it is prejudicial, that is,
when it “affected the outcome of the District Court proceedings.” Id. (quoting Olano,
507 U.S. at 734); see also United States v. Marcus, 560 U.S. 258, 262 (2010).

       Because defendants sentenced before the issuance of this opinion had not been
warned that they had a duty to object to the sentencing court’s procedural error after
sentencing, we will not apply this new rule retroactively and will, instead, review for
abuse of discretion. Applying that standard, we have held that a district court abuses its
discretion when it fails to give “meaningful consideration” to an argument advanced by
the defendant.

        Although it’s a close issue, we conclude that the Court’s question (“Ok, thanks.
Anything else?”) is not on this record sufficient to reflect that meaningful consideration
was given to Flores-Mejia’s cooperation argument. The circumstances here are very near
those we faced in Sevilla, in which we held that the District Court’s general statement
that it had “considered all the § 3553(a) factors” was not enough to show meaningful
consideration of a specific argument. While the question put by the District Court here,
in the context of the colloquy as a whole, might be read to reflect that the court had heard
and considered the specific argument about cooperation, there was no specific ruling
provided by the court or any other effort to address the argument.

                                    IV. CONCLUSION

       For the foregoing reasons, we will vacate the sentence and remand to the District
Court for resentencing.




                                              8
FUENTES, concurring in part and concurring in the
judgment.

       I agree with the majority that it would be unjust to
employ the Court’s new rule retroactively, and that we must
therefore apply the rule articulated in United States v. Sevilla,
541 F.3d 226 (3d Cir. 2008), to the case at hand.
Furthermore, I agree that the record before us does not
suggest that the district court meaningfully considered Flores-
Mejia’s cooperation argument. Therefore, I concur in the
decision to remand for resentencing.

       But like the dissenters, I continue to believe that
Sevilla should be applied not just to those sentenced before
today’s opinion, but also going forward.          As Judge
Greenaway notes in his compelling opinion, such an outcome
is dictated by the plain language of Rule 51 of the Federal
Rules of Criminal Procedure.




                               1
GREENAWAY, JR., Circuit Judge, dissenting with whom
SMITH, SHWARTZ and SLOVITER, join, and with whom
FUENTES, Circuit Judge, joins in part.



        In our system of jurisprudence, we examine our
principle, consider the facts and the law and make decisions.
The venerable principle of stare decisis requires
reexamination not when we come up with a better mouse trap
but when there is a principled basis for change. See Arizona
v. Rumsey, 467 U.S. 203, 212 (1984) (“[A]ny departure from
the doctrine of stare decisis demands special justification.”);
Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S.
833, 854 (1992) (“The obligation to follow precedent begins
with necessity, and a contrary necessity marks its outer limit. .
. . At the other extreme, a different necessity would make
itself felt if a prior judicial ruling should come to be seen so
clearly as error that its enforcement was for that very reason
doomed.”). Indeed, “the very point of stare decisis is to
forbid us from revisiting a debate every time there are
reasonable arguments to be made on both sides.” Morrow v.
Balaski, 719 F.3d 160, 181 (3d Cir. 2013) (Smith, J.,
concurring).

        Our Court, in a unanimous precedential opinion,
adopted a procedure for district courts to follow at sentencing
a scant six years ago. See United States v. Sevilla, 541 F.3d
226, 230 (3d Cir. 2008). Now, without intervening Supreme
Court precedent and without a majority of our sister courts,
we not only reexamine but indeed create a new procedure that
flies in the face of Federal Rule of Criminal Procedure 51,
with no compulsion or mandate to do so.




                               1
       In its attempt to promote judicial economy, the
majority ignores the plain language of Rule 51, misreads the
state of the law of our sister circuits, 1 and invokes a

1
  The majority would have us believe that a tsunami of well-
reasoned opinions has swept across our sister circuits,
requiring us to question our own precedent; however, close
reading of case law reveals that this assessment is mistaken.
For instance, the D.C. Circuit’s explications provide no
succor to the majority’s view, given that the court has
rendered internally inconsistent decisions. Compare, e.g.,
United States v. Wilson, 605 F.3d 985, 1034 (D.C. Cir. 2010)
(“Where a defendant failed to make a timely objection to the
alleged procedural error in the district court, however, our
review is for plain error.”), with United States v. Tate, 630
F.3d 194, 197-99 (D.C. Cir. 2011) (applying the “abuse of
discretion” standard to review a claim that a “sentence is
procedurally unreasonable, in violation of due process and the
requirement of section 3553(a) that a sentence be no greater
than necessary”) and United States v. Bras, 483 F.3d 103, 113
(D.C. Cir. 2007) (applying the reasonableness standard of
review by rejecting the government’s insistence that the court
“may review this claim only for ‘plain error,’ because Bras
did not . . . object that the court did not adequately consider
the factors set forth in § 3553” (internal quotation marks
omitted)). The majority also omits cases that have
unequivocally rejected the approach adopted today. See, e.g.,
United States v. Castro-Juarez, 425 F.3d 430, 434 (7th Cir.
2005) (“Since the district court will already have heard
argument and allocution from the parties and weighed the
relevant § 3553(a) factors before pronouncing sentence, we
fail to see how requiring the defendant to then protest the
term handed down as unreasonable will further the sentencing




                              2
fundamental change to our sentencing procedures that is both
unwarranted and difficult to square with the Supreme Court’s
post-Booker jurisprudence. For this reason, I respectfully
dissent.2

I. The Federal Rules of Criminal Procedure

       Under the Rules Enabling Act, Congress vested the
Supreme Court of the United States with the authority to
promulgate the Federal Rules of Criminal Procedure. See
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co.,
559 U.S. 393, 406-07 (2010). These rules, which are then
enacted by Congress, are legislation and therefore transcend a
mere rule of court. Fed. R. Crim. P. 2; see also Fed. R. Crim.
P. 1(a)(1) (“These rules govern the procedure in all criminal
proceedings in the United States district courts, the United
States courts of appeals, and the Supreme Court of the United
States.”).


process in any meaningful way.”). Finally, the case law cited
by the majority in support of their new rule, except for United
States v. Vonner, 516 F.3d 382, 391 (6th Cir. 2008) (which is
addressed below), completely fails to take into account Rule
51’s procedure for preserving an issue for appeal. As a result,
these cases do not provide a reasoned analysis supporting the
majority’s approach.
2
  Sevilla provided clear guidance in this post-Booker world,
the District Court considered all of the arguments raised at
sentencing. The Government determined that the information
Flores-Mejia had provided did not warrant a departure motion
under U.S.S.G. 5K1.1. When the District Judge said
“anything else”, he had already heard from both sides.
Therefore, I would affirm the sentence.




                              3
        Because the Federal Rules of Criminal Procedure are
legislative enactments, “we turn to the ‘traditional tools of
statutory construction,’ . . . in order to construe their
provisions.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153,
163 (1988) (quoting INS v. Cardoza–Fonseca, 480 U.S. 421,
446 (1987)). “We begin with the language of the Rule itself.”
Beech Aircraft Corp., 488 U.S. at 163.

       Federal Rule of Criminal Procedure 51, which governs
how parties preserve claims for appeal, states that “[a] party
may preserve a claim of error by informing the court--when
the court ruling or order is made or sought--of the action the
party wishes the court to take, or the party’s objection to the
court’s action and the grounds for that objection.” Fed. R.
Crim. P. 51(b).

        Textually, Rule 51(b) contemplates that parties may
liberally preserve claims for appeal. The rule states that a
party preserves a claim by informing the court “the action the
party wishes the court to take . . . when the court ruling or
order is made or sought[.]” Id. (emphasis added). While
“made” denotes that a request (e.g., objection) can be raised
after the order, the “or sought” language anticipates a party
preserving a claim prior to the court’s ruling. “To seek”
means “to ask for” or “to try to obtain,” which necessarily
takes place prior to the court’s ruling. See, e.g., Webster’s
Ninth New Collegiate Dictionary 1063 (1983) (“to ask for”);
The Random House Dictionary of the English Language 1733
(2d ed. 1987) (“To try to obtain”).

       The majority gives no more than lip service to the text
of Rule 51(b). In a footnote, the majority claims that the new
rule implemented by the court today is “consistent” with Rule
51(b) on grounds that the procedural objection can be raised




                              4
for the first time only after the sentence is pronounced
without adequate explanation. 3 Such a reading can be
sustained only by conflating “objection” with “the action the
party wishes the court to take”, which defies an established
canon of statutory interpretation that terms connected by a
disjunctive are to be given separate meaning. See Reiter v.
Sonotone Corp., 442 U.S. 330, 339 (1979) (“Canons of
construction ordinarily suggest that terms connected by a
disjunctive be given separate meanings[.]”). Under the plain
language of Rule 51, an objection—which can indeed only
take place after the court’s ruling—is only one way, not “the”
way, to preserve a claim. The rule expressly provides that
parties may also preserve a claim for appeal when they
inform the court “of the action the party wishes the court to
take[.]” Fed. R. Crim. P. 51(b).

       That is exactly what Flores-Mejia has done here. In
his sentencing memorandum dated July 19, 2012 (App. 51,
55, 59), and again at the sentencing hearing on July 26, 2012,
defense counsel urged the Court to “consider [Flores-Mejia’s]

3
  This line of reasoning follows the approach developed by
Judge Sutton’s majority opinion in Vonner, which
(unsurprisingly) also pays little homage to the text of Rule 51.
Vonner, 516 F.3d at 391. The opinion there acknowledges
Rule 51. Id. at 391. But the court then supports its
application of plain error review of the district court’s failure
to address the four grounds Vonner specifically raised for a
downward variance by positing a hypothetical where the
mistake had never been presented to the district court. Id. at
392. The hypothetical, however, lends no support because it
is factually distinguishable from what actually occurred in the
case.




                               5
actions in proffering [to the Government].” (App. 102-03.) It
is settled law that consideration of § 3553(a) factors requires
the District Court to supply an explanation. See United States
v. Begin, 696 F.3d 405, 411 (3d Cir. 2012) (holding that in
order to consider the relevant sentencing factors set forth in
18 U.S.C. § 3553(a), the District Court must “acknowledge
and respond to any properly presented sentencing argument”)
(internal quotation marks omitted); see also United States v.
Grier, 475 F.3d 556, 571 (3d Cir. 2007) (“The record must
disclose meaningful consideration of the relevant statutory
factors[.]”). Because Flores-Mejia “sought” the District
Court to “consider” § 3553(a) factors, his claim was
preserved under Rule 51, regardless of whether the District
Court ruled upon his request.

        What the majority calls an “objection” is in reality an
“exception,” which Rule 51(a) expressly declared as
“unnecessary.” Fed. R. Crim. P. 51(a); see also United States
v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009) (Easterbrook, J.)
(“We put ‘object’ in scare quotes because remonstration with
the judge is not an objection as usually understood. . . . Such
a complaint is properly called, not an objection, but an
exception.”). Prior to the adoption of Rule 51(a), lawyers
followed a common law tradition of taking “exception” to an
adverse ruling to preserve an issue. Robert E. Keeton, Trial
Tactics and Methods § 4.12, at 190-91 (2d ed. 1973). This
tradition was a way of creating a record for effective appellate
court review. Id. When verbatim transcripts became
available for modern judicial proceedings, the formalistic
“exception” requirement was no longer necessary for
appellate courts to effectively review cases. See Benjamin K.
Raybin, Note, “Objection: Your Honor is Being
Unreasonable!” - Law and Policy Opposing the Federal




                               6
Sentencing Order Objection Requirement, 63 Vand. L. Rev.
235, 252 (2010). It was for this reason that the practice of
taking exceptions was abandoned in civil cases when
Congress approved Federal Rule of Civil Procedure 46 (in
1937) and the Federal Rules of Criminal Procedure 51 (in
1944). Id.; see also Bartlett, 567 F.3d at 910 (“[T]he rules do
not require a litigant to complain about a judicial choice after
it has been made.”); United States v. Cunningham, 429 F.3d
673, 679-80 (7th Cir. 2005) (Posner, J.) (“[A] lawyer in
federal court is not required to except to rulings by the trial
judge.”) (citing Fed. R. Crim. P. 51(a)).

        The majority insists that a party must re-raise any
procedural objection after the pronouncement of the sentence
to avoid plain error review. No such requirement appears in
Rule 51. In adopting this “new rule,” the majority renders
superfluous both Rule 51(a)’s elimination of the practice of
taking exceptions and Rule 51(b)’s disjunctive text “or
sought.” Although courts are to avoid a construction of a
statute that would make another provision superfluous, the
majority ignores this basic rule of statutory construction. See
Hohn v. United States, 524 U.S. 236, 249 (1998) (noting its
“reluctan[ce] to adopt a construction making another statutory
provision superfluous”); see also Colautti v. Franklin, 439
U.S. 379, 392 (1979) (characterizing as “elementary” the
“canon of construction that a statute should be interpreted so
as not to render one part inoperative”).

       Rule 51 cannot be deemed superfluous based on the
procedural/substantive dichotomy. While it is true that this
Court has developed jurisprudence highlighting the difference
between procedural and substantive reasonableness claims,
the Federal Rules of Criminal Procedure do not make such a
distinction. The majority’s reading carves out certain




                               7
categories of claims that cannot be preserved when the ruling
“is sought”, failing to give meaning to each word of Rule
51(b). In my view, this reading cannot survive scrutiny by
the Supreme Court. See Shady Grove Orthopedic Associates,
P.A., 559 U.S. at 406 (interpreting the Federal Rules of Civil
Procedure stating that courts “cannot contort its text[.]”);
Reiter, 442 U.S. at 339 (“In construing a statute we are
obliged to give effect, if possible, to every word Congress
used.”).

II. Judicial Economy

       The majority attempts to rationalize its reading of Rule
51 by pointing to judicial economy. While the concern is
noble, the effect of the new rule on judicial economy is at best
ambiguous.

       First, contrary to the majority’s concern about defense
counsel “sandbagging” district courts, parties already have an
incentive to bring errors to the district court’s attention even
when a claim is preserved.4 This is because they have a better
shot at correcting errors there than before an appellate court
that must review under a deferential, reasonableness standard.

4
  In Puckett v. United States, the Supreme Court instructed
that a party cannot “remain[] silent” and “sandbag” a court by
failing to object and avert plain error review. 556 U.S. 129,
135 (2009). Unlike Puckett, where the defendant never raised
the issue at all in the district court, when a party raises his
argument in writing prior to sentencing and orally advocates
for particular action at the sentencing hearing, it is inaccurate
to contend that the party is sandbagging the sentencing court
and that the issues he squarely raised are subject to plain error
review.




                               8
United States v. Tomko, 562 F.3d 558, 564 (3d Cir. 2009)
(assessing the reasonableness of a sentence under the
deferential “abuse of discretion” standard of review). Under
the reasonableness standard, an appellate court reverses only
when the district court’s decision cannot be located within the
range of permissible decisions or is based on a legal error or
clearly erroneous factual finding. See id. While the plain
error standard certainly heightens the penalty for failure to
preserve an issue, the majority’s approach does not explain
why an abuse of discretion standard cannot deter parties from
“playing possum.” Certainly, there is no evidence, anecdotal
or otherwise, to support the majority’s assessment.

        Second, requiring an objection for preservation
purposes will slow down the process in the initial district
court proceeding, even when it may not be necessary. As the
Seventh Circuit puts it, “[t]o insist that defendants object at
sentencing to preserve appellate review for reasonableness
would create a trap for unwary defendants and saddle busy
district courts with the burden of sitting through an
objection—probably formulaic—in every criminal case.”
United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th
Cir. 2005); see also United States v. Lynn, 592 F.3d 572, 578-
79 & n.3 (4th Cir. 2010) (observing that the objection
requirement “could degenerate into a never-ending stream of
objections after each sentencing explanation”). All this
presumably after a full airing out of the issue at hand both in
the papers and at argument. This concern is especially
alarming because substantive and procedural reasonableness
claims are not easily divisible. Compare Rita v. United
States, 551 U.S. 338, 365 (2007) (Stevens, J., concurring)
(observing that Booker “plainly contemplated that
reasonableness review would contain a substantive [as well as




                              9
procedural] component”), with Rita, 551 U.S. at 382-83
(Scalia, J., concurring in part and concurring in the judgment)
(observing that reasonableness of sentencing ruling should be
reviewed on purely procedural grounds). See also Vonner,
516 F.3d at 398 (Clay, J., dissenting) (“[P]rocedural
reasonableness and substantive reasonableness are simply two
aspects of the overall reasonableness.” (internal quotation
marks omitted)). The difficulty of parsing out the differences
between substantive and procedural claims incentivizes
counsel to complain about every ruling made by the district
court.

       Third, requiring an objection to preserve issues for an
appeal promises to give birth to an industry of collateral
“ineffective assistance of counsel” claims that are likely to
arise out of defense counsel inevitably failing to object after
sentencing in some cases. See, e.g., Raybin, Note, 63 Vand.
L. Rev. at 262 (“By creating a new procedure for attorneys to
follow, courts also create a new way in which attorneys can
render ineffective assistance of counsel.”). This is not a mere
theoretical inquiry, given our Court’s previous ruling that
failing to object in certain circumstances may constitute
ineffective assistance of counsel. See, e.g., United States v.
Otero, 502 F.3d 331, 336 (3d Cir. 2007) (“There is no sound
strategy in counsel’s failure to object to the 16-level
enhancement in the PSR. . . . We therefore find counsel’s
performance deficient.”).5

       To be sure, requiring procedural reasonableness
objections may facilitate speedier resolution of errors in

5
 Our discussion does not address the circumstances when
defense counsel fails to raise a claim for a court to consider in
writing and before actual sentencing.




                               10
certain circumstances, sparing everyone the lengthy process
of appellate review. If alacrity be our keystone, I shall step
aside, but in the grand scheme of our criminal justice system,
judicial economy should not and cannot rule our
considerations.

III. Appellate Review Post-Booker

       Finally, the holding rendered by the majority today
represents a fundamental change in our jurisprudence that is
difficult to square with the Supreme Court’s post-Booker
jurisprudence.

       Our Booker obligation is to “review sentencing
decisions for unreasonableness.” United States v. Booker,
543 U.S. 220, 264 (2005). In keeping with this guidance, this
Court has developed a two-part test, reviewing for
“procedural error at each step of the district court’s
sentencing process . . . then we move forward to the second
stage [reviewing] the substantive reasonableness of the
sentence.” Begin, 696 F.3d at 411; see also Rita, 551 U.S. at
356 (instructing that a sentencing court should “set forth
enough to satisfy the appellate court that [he] has considered
the parties’ arguments and has a reasoned basis for exercising
his own legal decision-making authority”).

       Under the plain error review adopted by the majority
today,6 our hands will be tied when the district court fails to

6
 An error is plain if it is “clear” or “obvious,” “affects
substantial rights,” and “affects the fairness, integrity or
public reputation of judicial proceedings.” United States v.
Dragon, 471 F.3d 501, 505 (3d Cir. 2006) (quoting United
States v. Olano, 507 U.S. 725, 732 (1993) (alterations and




                              11
produce enough of a record for meaningful procedural
review, for we will have no basis to ascertain whether a
potential error could have “affected the outcome of the
district court proceedings.” Dragon, 471 F.3d at 505 (quoting
Olano, 507 U.S. at 732). This is plainly at odds with the
Supreme Court’s instructions that the record “make[] clear
that the sentencing judge considered the evidence and
arguments.” Rita, 551 U.S. at 359.

        For example, assume that the district court commits a
procedural error—by incorrectly calculating the defendant’s
advisory Guidelines range. 7 Let us even assume that the
district court was generous enough to ask, after the imposition
of the sentence, if counsel had any objections. Defense
counsel answered “no” to that question. Under the majority’s
hard-line rule, the mere fact that the defense counsel
answered “no” absolves the district court of what we have
time and time again re-affirmed as the district court’s
responsibility under Gunter. This is particularly alarming
because of the unique, two-step review process developed in
our circuit. Our substantive review is “highly deferential,”

internal quotation marks omitted)). An error “affects
substantial rights” when it is prejudicial, that is, when it
“affected the outcome of the district court proceedings.”
Dragon, 471 F.3d at 505 (quoting Olano, 507 U.S. at 734).
7
  Correct calculation of the defendant’s advisory Guidelines
range is the first procedural step mandated by our seminal
post-Booker opinion. United States v. Gunter, 462 F.3d 237,
247 (3d Cir. 2006) (“[O]ur post-Booker precedent instructs
district courts . . . to calculate a defendant’s Guidelines
sentence precisely as they would have before Booker.”)
(internal citations omitted).




                              12
only because of “our insistence, as part of our procedural
review, that the district court produce a record sufficient to
demonstrate its rational and meaningful consideration of the §
3553(a) factors.” Begin, 696 F.3d at 411. The majority’s
opinion strips future panels of meaningful authority to ensure
that district courts follow the Gunter steps, while leaving the
deferential substantive review standard intact. In effect, this
approach undermines our ability to “review sentencing
decisions for unreasonableness.” Booker, 543 U.S. at 264.

        The insistence that a claim be lodged
“contemporaneously” with a sentencing decision exacerbates
the problem. The majority’s approach, in essence, picks a
narrow and arbitrary point in time at which a defense counsel
must raise (or in some instances, re-raise) a point, building an
additional stricture that defeats a defendant’s ability to
successfully appeal. Sentencing proceedings are highly
charged and fraught with emotion, particularly after the
sentence is imposed. It is unwise to burden counsel with the
additional obligations to engage in a reasoned analysis of the
district court’s sentencing explanation and then interpose an
objection that was already asserted, all while attending to an
emotional client and raising residual issues, like surrender
dates and place of incarceration.

       Under the majority’s framework, future panels of this
Court will be forced to make a difficult choice when faced
with a district court record that is plainly at odds with our
instructions in Gunter: (1) apply plain error review and
produce rulings that are likely to be at odds with the guidance
from the Supreme Court; or (2) stretch the meaning of “plain
error” to ensure that this Court follows the Supreme Court’s
post-Booker jurisprudence. Begin, 696 F.3d at 411.




                              13
       The post-Vonner jurisprudence from the Sixth Circuit
gives little reason for optimism. In U.S. v. Wallace, for
instance, the Sixth Circuit was asked to review a record from
the District Court that did not “specifically mention any of the
3553(a) factors.” 597 F.3d 794, 804 (6th Cir. 2010). Even
after acknowledging that “plain error review should be
extremely deferential to the sentencing judge”, the court
found that the case “must be remanded for re-sentencing.” Id.
But as Judge McKeague’s concurring opinion insightfully
points out, it is untenable to conclude that the district court’s
lack of explanation impugned the “fairness, integrity or public
reputation” necessary to constitute plain error. 597 F.3d at
811 (McKeague, J., concurring).

        I end where I began. Stare decisis counsels against
“overrul[ing] our circuit precedent just to move from one side
of the conflict to another.” United States v. Conner, 598 F.3d
411, 414 (7th Cir. 2010) (en banc). Yet, despite the plain text
of Rule 51(b) and the absence of any intervening authority
from the Supreme Court, the majority jumps to the other side.
What could confuse our district court colleagues more than
revisiting matters without good cause to do so and
establishing a new procedure that digress from
congressionally sanctioned rules with no substantive or
procedural infirmity? I cannot partake in such an enterprise,
and therefore respectfully dissent.




                               14
