                    CORRECTED March 2, 2018

           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                   No. 16-40367


UNITED STATES OF AMERICA,

            Plaintiff - Appellee

v.

RAFAEL RIOS MARROQUIN, also known as Tomas Andres Marroquin,

            Defendant - Appellant

consolidated with

16-40368

UNITED STATES OF AMERICA,

            Plaintiff - Appellee

v.

RAFAEL RIOS MARROQUIN,

            Defendant - Appellant




               Appeals from the United States District Court
                    for the Southern District of Texas
                                 No. 16-40367
                                 c/w 16-40368


                ON PETITION FOR REHEARING EN BANC
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:
      The Court having been polled at the request of one of its members, and
a majority of the judges who are in regular service and not disqualified not
having voted in favor (Fed. R. Ap. P. 35 and 5th Cir. R. 35), rehearing en banc
is DENIED. In the en banc poll, three judges voted in favor of rehearing
(Judges Jones, Smith, and Ho), and twelve judges voted against rehearing
(Chief Judge Stewart and Judges Dennis, Clement, Prado, Owen, Elrod,
Southwick, Haynes, Graves, Higginson, Costa, and Willett).
      Judge Smith, joined by Judges Jones and Ho, dissents from the Court’s
denial of rehearing en banc, and his dissent is attached.


ENTERED FOR THE COURT:


_________________________________
GREGG COSTA
United States Circuit Judge




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                                c/w No. 16-40368

JERRY E. SMITH, Circuit Judge, joined by EDITH H. JONES and JAMES
C. HO, Circuit Judges, dissenting from the denial of rehearing en banc:

      The panel opinion mutilates the test for plain-error relief. Every one of
the panel’s multiple mistakes favors Marroquin. And even under the relaxed
standard that the panel accidentally announces, Marroquin falls far short of
satisfying the test.   Because the court should have vacated this aberrant
opinion for en banc rehearing, I respectfully dissent.

      To obtain appellate relief from forfeited error, Marroquin must meet the
difficult four-prong test. He must show (1) an error (2) that is plain and
(3) affects substantial rights. “Fourth and finally, if the above three prongs are
satisfied, the court of appeals has the discretion to remedy the error―discretion
which ought to be exercised only if the error ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’”     Puckett v. United
States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano, 507 U.S. 725,
736 (1993)) (brackets in Puckett, some internal quotation marks omitted).

                                        I.
      Although, to its credit, the panel carefully avoids misquoting Puckett, it
misstates the test by changing the words in three different places, in a way
that is hugely misleading. I address each of those in turn.

                                       A.
      First, the panel omits the crucial word “seriously” from the paragraph in
which it applies the Puckett test. The panel says, “That leaves the requirement
that Marroquin show the error affected the fairness, integrity, or reputation of
the proceeding.” United States v. Marroquin, 874 F.3d 851, 855 (5th Cir.




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2017). 1 There are no quotation marks, and there is no citation to Puckett or
any other authority; the panel just sets forth an easier test, likely from inad-
vertence.     Without even trying to explain why it believes the sentence
affects―much less “seriously affects”―fairness, integrity, or reputation, the
panel only gives the conclusional justification that “[w]e choose to correct this
error in light of its effect on the sentence combined with the nature of the
error.” Id.

       The Supreme Court would not have used the word “seriously” unless it
was “serious” about sending the message that fourth-prong relief is available
only in exceptional circumstances. See Edward Goolsby, Comment, Why So
Serious? Taking the Word “Seriously” More Seriously in Plain Error Review of
Federal Sentencing Appeals, 51 HOUSTON L. REV. 1449 (2014). The panel thus
not only misstated but misapplied the fourth prong, and that is error.

                                            B.
       This is not the panel’s only misstatement of the fourth prong. In describ-
ing that prong in the introductory part of the opinion, 874 F.3d at 853, the
panel explains that if the appellant can satisfy the first three prongs, “then we
have the discretion to remedy the error if it ‘seriously affect[s] the fairness,
integrity or public reputation’ of the proceeding” (emphasis added) (quoting
Puckett, 556 U.S. at 135, but only inside the single quotation marks). The
panel uses similar, inaccurate language in the analytical part of the opinion,
where it states and applies the fourth prong: “That leaves the requirement



       1 In the second, introductory paragraph of its opinion, the panel, more fully quoting
Puckett, does include the word “seriously.” Marroquin, 874 F.3d at 853. As explained above,
however, in the later paragraph that actually applies the test, the panel does not directly
quote Puckett and omits any mention of “seriously.”
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that Marroquin show the error affected the fairness, integrity, or reputation of
the proceeding.” Id. at 855 (emphasis added).

      That also is error. Outside the quotation marks are the words “of the
proceeding.” That is not what the Supreme Court said. Instead, Puckett refers
to “the fairness, integrity or public reputation of judicial proceedings.” Puckett,
556 U.S. at 135 (emphasis added). The difference is huge. It is one thing for
an observer to think that an erroneous sentence makes that particular pro-
ceeding seem “unfair.” It is an exponentially higher burden for the appellant
to demonstrate that the sentence is so wrong that it seriously casts a pall on
judicial proceedings generally.

      It is no guess that the Supreme Court meant to give meaning to the
phrase “of judicial proceedings” as distinguished from “of the proceeding.” At
the end of its opinion, the Court helpfully explained what it meant by “judicial
proceedings.” Puckett dealt with the failure to live up to a plea agreement.
Applying the fourth prong, the Court opined that “[i]t is true enough that when
the Government reneges on a plea deal, the integrity of the system may be called
into question.” Puckett, 556 U.S. at 142−43 (emphasis added). And further,
referring to the sentence at hand, the Court concluded that “receipt of a sen-
tencing reduction . . . would have been so ludicrous as itself to compromise the
public reputation of judicial proceedings.” Id. at 143 (emphasis added).

      From this, there can be no doubt that the fourth prong requires the
appellant to show “serious” damage not only to the fairness of the result in his
own case but―much more broadly―to the fairness, integrity, or public reputa-
tion of judicial proceedings generally. That is a more than a gentle reminder
of how steep the fourth prong really is and of how, by subtle changes to its
articulation, the panel has “seriously” (pun intended) reduced the burden for

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this appellant. 2

                                              C.
       So far, I have shown that the panel misstated the Puckett test in two
respects: by omitting the crucial word “seriously” and by altering the phrase
“of judicial proceedings.” There is yet a third alteration: The panel changed
“public reputation” to “reputation.” The panel begins its penultimate para-
graph by stating, “That leaves the requirement that Marroquin show the error
affected the fairness, integrity, or reputation of the proceeding.” Marroquin,
874 F.3d at 855 (emphasis added).

       It is significant that the Supreme Court referred to “public reputation”




       2  In fairness, I must note that other panels of this court have been similarly sloppy in
describing the Puckett test. See, e.g., United States v. Luna-Barragan, No. 17-40080, 2018
U.S. App. LEXIS 2868, at *4 (5th Cir. Feb. 6, 2018) (per curiam) (unpublished) (using “sub-
stantially affect” instead of “seriously affect” and referring to “reputation of the proceeding”
and “fairness of the process”); United States v. Thomas, 847 F.3d 193, 205 (5th Cir.) (per
curiam) (“substantially” instead of “seriously” and “of the judicial proceedings” replacing “of
judicial proceedings”), cert. denied, 137 S. Ct. 2229 (2017); United States v. Duque-Tinoco,
676 F. App’x 267, 268 (5th Cir. 2017) (per curiam) (“undermines” instead of “seriously
affects”); United States v. Smith, 814 F.3d 268, 270, 276 (5th Cir. 2016) (“substantially
affected” and “of Smith’s proceedings”); United States v. Cruz-Reyes, 602 F. App’x 204, 204
(5th Cir. 2015) (per curiam) (omitting “seriously”); United States v. Corona, 599 F. App’x 204,
205 (5th Cir. 2015) (per curiam) (same); United States v. Anderson, 755 F.3d 782, 797 (5th
Cir. 2014) (same); United States v. Salgado, 491 F. App’x 509, 509, 510 (5th Cir. 2012) (per
curiam) (same); United States v. Delgado-Loya, 372 F. App’x 457, 457 (5th Cir. 2010) (per
curiam) (“substantially” instead of “seriously”); United States v. Luna-Cabral, 336 F. App’x
467, 467 (5th Cir. 2009) (per curiam) (same); United States v. Planck, 493 F.3d 501, 505 (5th
Cir. 2007) (omitting “seriously”); United States v. Fernandez-Cusco, 447 F.3d 382, 385 (5th
Cir. 2006) (same); United States v. Coil, 442 F.3d 912, 914 (5th Cir. 2006) (same); United
States v. Akinde, 190 F.3d 538, 1999 U.S. App. LEXIS 40409, at *2 (5th Cir. 1999) (per cur-
iam) (unpublished) (“substantially” instead of “seriously”). This persistent inconsistency is
reason enough to rehear this case en banc to reconcile the caselaw.
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                                    c/w No. 16-40368

and that the panel omitted “public.” 3             That underscores the fact that, as
explained above, the Court was referring to judicial proceedings generally and
not to the specific proceeding at hand. It is difficult to see how a forfeited-error
sentence in one particular case, such as this one, would sully the public repu-
tation of the system except in the most notorious case. The panel’s phrase
“reputation of the proceeding” hardly makes sense here.

                                             II.
       The foregoing discussion shows that, for whatever reason, the panel
stumbles in its articulation of the fourth prong by misrepresenting it in at least
three crucial respects. That needs to be examined by the en banc court so that
we carefully adhere to what the Supreme Court requires. But even accepting
the majority’s more-than-questionable description of the four prongs, the panel
errs in finding all those prongs satisfied so as to afford plain-error relief to this
appellant.

                                             A.
       Marroquin fails the second prong, because the error is not “plain.” “[T]he
legal error must be clear or obvious, rather than subject to reasonable dispute.”
Puckett, 556 U.S. at 135 (citing Olano, 507 U.S. at 734). “Under plain error
review, errors that are apparent only after ‘traversing a somewhat tortuous
path,’ through a ‘careful parsing of all the relevant authorities, including the
sentencing guidelines and applicable decisions[,]’ are not ‘clear or obvious.’’’
United States v. Singleton, 707 F. App’x 298, 299 (5th Cir. 2017) (per curiam)



       3 In its second paragraph, 874 F.3d at 853, where the panel directly quotes a truncated
part of the Puckett standard, the court properly includes the word “public.” But in the pen-
ultimate paragraph in which the test is actually applied, quotation marks are missing, and
so is the word “public.” Id. at 855.
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(quoting United States v. Rodriguez-Parra, 581 F.3d 227, 231 (5th Cir. 2009)). 4

       The purported error here is anything but obvious. The question is the
interpretation of a North Carolina statute. The Marroquin panel admits that
the Fifth Circuit addressed that very statute in United States v. Rodriguez-
Prieto, 491 F. App’x 514, 515 (5th Cir. 2012) (per curiam). The panel concedes
that Rodriguez-Prieto contains “some language . . . that suggests it would not
be error to separately assess criminal history points for each of the consolidated
[North Carolina] offenses.” Marroquin, 874 F.3d at 854.

       The Marroquin panel yields instead to a Fourth Circuit decision, United
States v. Davis, 720 F.3d 215, 219 (4th Cir. 2013), which decides the North
Carolina statutory question favorably to Marroquin. It is fine, with benefit of
hindsight, to decide that, as between Davis and Rodriguez-Prieto, the former
has the better view of the law, but it is not fine for this panel to do so in the
context of plain error. In light of the “reasonable dispute,” including a Fifth
Circuit decision going the other way, the error is not “clear or obvious,” and
plain-error review here should end at the second prong. 5

                                             B.
       The third prong requires the appellant to show that a plain error affected
his substantial rights. Instead of requiring Marroquin to shoulder the burden



       4 The panel makes no mention of the above decisions or of any other Fifth Circuit
caselaw, which imposes a steep standard for achieving success at the second prong, especially
the requirement of showing no “reasonable dispute.”
       5 Marroquin’s failure at the second prong is bolstered by the fact that in the brief on

appeal, the experienced Federal Public Defender did not even notice the alleged error. Given
that the only Fifth Circuit decision on point was adverse to Marroquin, that is not surprising
or blameworthy. The Federal Public Defender briefed the issue only after this court denied
a motion under Anders v. California, 386 U.S. 738 (1967), to withdraw from the case for want
of a nonfrivolous issue. The issue was neither clear nor obvious.
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                               c/w No. 16-40368

of establishing that his substantial rights were affected, the panel flips the
burden. The panel closes its discussion of the third prong with the statement
that “the government has not shown this to be a case in which prejudice did
not result from an error that affected the Guidelines range.”        Marroquin,
874 F.3d at 855. Laying the burden on the government, and requiring it to
prove a negative, is blatantly contrary to proper plain-error methodology and
only compounds the mistakes made by this panel in a published opinion that
confuses circuit law.

                                       C.
      Marroquin also fails at the fourth prong. The panel’s explanation is both
scant and conclusory: “This error . . . based on a misinterpretation of the state
criminal laws . . . would create doubt about the integrity of the process.”
Marroquin, 874 F.3d at 855. The panel gives no reason for that conclusion,
because there is none. Moreover, the panel ignores the government’s compel-
ling explanation of why no one would reasonably think the sentence was unfair
or lacked integrity. That includes Marroquin’s numerous imprisonments, with
at least four convictions for controlled substances and two illegal reentries. At
bottom, the sentence of 25 months is only four months above the top of the
allegedly correct guideline range. No one viewing the record as a whole should
see Marroquin as deserving of the extraordinary gift of plain-error reversal.

                                      III.
      In Puckett, the Supreme Court warned of “a reflexive inclination by
appellate courts to reverse because of unpreserved error.” Puckett, 556 U.S.
at 134 (citation omitted). That unfortunate tendency is evident here in the
numerous mistakes that all favor the appealing defendant. The panel gravely
undermines the incentive for criminal defendants to raise meritorious issues
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at sentencing instead of finding ways to succeed on forfeited issues on appeal. 6

       Our plain-error jurisprudence continues to struggle. See United States
v. Suarez, 879 F.3d 626, 642−46 (5th Cir. 2018) (Smith, J., dissenting). Grant-
ing en banc rehearing would vacate the mistaken panel opinion, which would
be an expeditious way of correcting the myriad errors identified above. 7

       I respectfully dissent from the denial of rehearing en banc.




       6   The Supreme Court spoke forcefully to this in Puckett:
           This limitation on appellate-court authority serves to induce the timely
       raising of claims and objections, which gives the district court the opportunity
       to consider and resolve them. That court is ordinarily in the best position to
       determine the relevant facts and adjudicate the dispute. . . . [T]he district court
       can often correct or avoid the mistake so that it cannot possibly affect the out-
       come. And of course the contemporaneous-objection rule prevents a litigant
       from “sandbagging” the court―remaining silent about his objection and be-
       latedly raising the error only if the case does not conclude in his favor.
Puckett, 556 U.S. at 134 (citation omitted).
        7 An admitted procedural difficulty that discourages en banc review is that Marroquin

is set for release in less than a month, and there is no term of supervised release, so there is
the prospect of mootness. See generally United States v. Heredia-Holguin, 823 F.3d 337 (5th
Cir. 2016) (en banc). That is undoubtedly a factor in the lopsided vote to deny rehearing, as
is the fact that the Supreme Court is reviewing United States v. Rosales-Mireles, 850 F.3d
246 (5th Cir.), cert. granted, 138 S. Ct. 55 (2017) (No. 16-9493) (argued Feb. 21, 2018), which
concerns fourth-prong methodology.
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