                                               Filed: March 8, 2005


                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 03-4379



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


DERRELL LAMONT GILCHRIST,

                                             Defendant - Appellant.



                              O R D E R


     On January 25, 2005, Darrell Lamont Gilchrist filed a petition

for rehearing with a suggestion for rehearing en banc to which the

government filed a response on February 11, 2005.    Having reviewed

Gilchrist’s petition, the panel is of the opinion that Gilchrist’s

convictions should be affirmed for the reasons stated in the panel

opinion.   However, the panel is of the opinion that Gilchrist’s

sentences must be vacated and the case remanded for resentencing in

light of United States v. Booker, 125 S. Ct. 738 (2005), which was

decided after the panel opinion issued in this case.
     Accordingly, Gilchrist’s petition for rehearing is granted

solely on the issue of whether he is entitled to be resentenced.

No member of this court having asked for a poll on the petition for

rehearing en banc, the petition for rehearing en banc is denied.

     Entered at the direction of Senior Judge Hamilton with the

concurrences of Judge Niemeyer and Judge Luttig.

                              For the Court


                              /s/ Patricia S. Connor

                                       Clerk of Court




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LUTTIG, Circuit Judge, concurring:

      I concur in the order of remand, although I do not believe

that such is absolutely necessary.

      Because this case comes to us on plain error review and

because our court’s opinion in United States v. Hughes, 396 F.3d 374

(4th Cir. 2005), remains an important part of the ongoing dialogue

in the courts of appeals as to the reach of Rule 52(b) in the wake

of United States v. Booker, 125 S. Ct. 738 (2005), I write below to

explain why I believe that our court erred, and fundamentally so,

in its application of Rule 52(b) in Hughes.

      In order for a defendant to prevail under Rule 52(b), “there

must be an ‘error’ that is ‘plain’ and that ‘affects substantial

rights.’”   United States v. Olano, 507 U.S. 725, 732 (1993).           The

defendant bears the burden of establishing that an error affected

his   substantial   rights   and   must   demonstrate   that   “the   error

actually affected the outcome of the proceedings.”         United States

v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998) (emphasis added).

In the context of an error relating to the imposition of sentence,

a defendant “must establish that [the imposed] sentence was longer

than that to which he would otherwise be subject.”         United States

v. Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en banc).          While the

Supreme Court has variously articulated the requirement that a

different result would have been likely or probable, see United

States v. Dominguez Benitez, 124 S. Ct. 2333, 2342 (2004) (Scalia,


                                     3
J. concurring), it has recently suggested that an offender can

establish prejudice with a “showing of a reasonable probability

that, but for [the error claimed], the result of the proceeding

would have been different.”             Id. at 2339 (internal quotations

omitted); see also United States v. Antonakopoulos, No. 03-1384,

2005 WL 407365, at *7-8 (1st Cir. 2005) (adopting the Dominguez

Benitez   “reasonable    probability”       standard   for   Booker   claims).

Because “Rule 52(b) leaves the decision to correct the forfeited

error within the sound discretion of the court of appeals,” Olano,

507 U.S. at 732, the Supreme Court has admonished that we should

only notice “particularly egregious errors . . . that seriously

affect the fairness, integrity or public reputation of judicial

proceedings.”    United States v. Young, 470 U.S. 1, 15 (1985).

     I believe Hughes erred with regard to its identification of

the error, its determination of whether that error affected Hughes’

substantial    rights,   and    in   its    determination    that   it   should

exercise its discretion to recognize that error.

     Proper application of Rule 52(b) depends upon an accurate

understanding of the error committed which, in turn, requires an

accurate understanding of Booker.           It is as a consequence of its

failure   to    understand     Booker    that   Hughes   has   fundamentally

misapplied the plain error doctrine in the wake of Booker.

     In Booker, the Supreme Court held that judicial factfinding

that results in an increase in an offender’s sentence under the


                                        4
“Guidelines as written” -- that is, the guidelines as “mandatory

and    binding    on   all     judges”    --     violates   the   Sixth    Amendment.

Booker, 125 S. Ct. at 750 (Stevens, J.).                    The Court’s remedy for

this constitutional infirmity, however, was not the abolition of

judicial factfinding; rather, the Court severed entirely “the

provision    of    the    federal      sentencing       statute     that   makes    the

Guidelines mandatory, 18 U.S.C. § 3553(b)(1),” id. at 756 (Breyer,

J.).     The effect of this severance was to render the Guidelines

advisory in all cases, not merely those cases in which the trial

court    impermissibly         found     facts    in    violation    of    the   Sixth

Amendment.         Indeed,       the     Court      specifically      rejected     the

Government’s proposal to treat the guidelines as mandatory in cases

in which there was no constitutionally impermissible judicial

factfinding,      on     the   grounds     of     the   Court’s     conclusion     that

“Congress would not have authorized a mandatory system in some

cases and a nonmandatory system in others.”                   Id. at 768 (Breyer,

J.); see also id. at 769 (Breyer, J.) (“[W]e must apply today’s

holdings -- both the Sixth Amendment holding and our remedial

interpretation of the Sentencing Act -- to all cases on direct

review.”).

       Because of the constitutional violation identified in Booker

and the remedy ordered by the Court, Booker errors can take two

forms.




                                            5
     First, it is error if the sentencing court (1) within a

mandatory guideline regime (2) found facts that resulted in an

increase in the offender’s sentence beyond that which would have

been supported by the jury’s findings.             This error, which results

in a violation of the Sixth Amendment, is the type of error that

occurred in Booker’s case.         As the Court explained, the district

court’s error was that it “applied the Guidelines as written and

imposed a sentence higher than the maximum authorized solely by the

jury’s verdict.”         Id. at 769 (Breyer, J.).           Justice Breyer’s

reference to the “Guidelines as written” confirms that the district

court’s treatment of the Guidelines as mandatory was necessarily

part of the error that occurred in Booker’s case.               See Booker, 125

S. Ct. at 750 (“The Guidelines as written, however, are not

advisory; they are mandatory and binding on all judges.”) (emphasis

added).

     Second,      because    the   Court     held    that   the        remedy     for

impermissible     judicial     factfinding    in    violation     of    the     Sixth

Amendment   was    the   severance   of    the     provision    that     made     the

Guidelines mandatory (rendering them in all cases advisory), it is

also error if the sentencing court merely imposed a sentence under

the Guidelines “as written,” that is, as mandatory.                    This second

type of error, which does not entail a violation of the Sixth

Amendment   because      the    district     court    did   not        find     facts

impermissibly, is the type of error that occurred in Fanfan’s case.


                                      6
       While it is possible for a sentencing court to have erred

under Booker in either of these two respects, it must be understood

that a court will not have erred in either respect provided that it

sentenced the offender under the Guidelines as advisory only.              And

this even if the court increased the offender’s sentence based upon

facts beyond those found by the jury.

       Hughes’ mistake is evident from the first step of its plain

error analysis -- namely the identification of the error committed

by the district court.         The panel in Hughes concluded that the

relevant error under Booker was simply the “imposition of a 46-

month sentence, in part based on facts found by the judge.”              Id. at

379.    The court did not consider as error the district court’s

application of the Guidelines in their mandatory form.                 Indeed,

Hughes suggests that the district court should have applied the

Guidelines in their mandatory form, but simply have relied only on

the facts found by the jury.               Id. (“Here, under the mandatory

guideline regime in existence at the time of sentencing, that

maximum would have been calculated according to an Offense Level of

10 . . . which is the maximum authorized by the facts found by the

jury.”).    By failing to recognize as error the district court’s

imposition of sentence on the assumption that the Guidelines were

mandatory, Hughes failed to take into account the entirety of the

holding    of   Booker   --   both   its    conclusion   of   Sixth   Amendment

violation and its ordered remedy.              In effect, the Hughes court


                                       7
divorced the fact of the district court’s impermissible factfinding

from the fact that such factfinding was only impermissible because

of   the   district   court’s    assumption   that   the   Guidelines     were

mandatory.     And in so doing, Hughes failed to appreciate the

central premise of Booker, namely that “[i]f the Guidelines . . .

could be read as merely advisory . . . [then] the selection of

particular sentences in response to differing sets of facts . . .

would not implicate the Sixth Amendment.”            Booker, 125 S. Ct. at

750 (Stevens, J.).

      A sentencing court’s error must be defined by reference to

what the district court should have done in light of the entire

holding of Booker; not merely by reference to the Sixth Amendment

violation identified in Booker.       The error in Hughes thus was like

that in Booker’s case, namely judicial factfinding coupled with the

imposition of sentence under the Guidelines “as written,” or as

mandatory    rather    than     advisory.     The    error   was   not,    as

Hughes holds, that the district court merely failed to impose a

sentence on the basis of the facts as found by the jury, instead

imposing “a 46-month sentence, in part based on facts found by the

judge.”    Id. at 379.

      That the Hughes panel did so err is confirmed by Booker’s

instructions regarding the continuing vitality of the Guidelines

and the necessary implication that district courts may continue to

impose sentences based on extra-verdict factfinding. Indeed, after


                                      8
Booker, sentencing courts still “must consult [the] Guidelines and

take them into account when sentencing,” Booker, 125 S. Ct. at 768

(Breyer,   J.),   and   “consider   the   Guidelines    sentencing     range

established for . . . the applicable category of defendant.”             Id.

at 764 (Breyer, J.).     Consideration of the applicable Guidelines

range for a particular defendant, of course, will continue to

include the district court’s consideration of facts not found by a

jury or included in a plea agreement.         The Hughes panel itself

reached the same conclusion, though it failed to recognize the

implications of that conclusion, holding that “a district court

shall first calculate (after making the appropriate findings of

fact) the range prescribed by the guidelines.” Hughes, 396 F.3d at

378-79 (emphasis added).

     The error in Hughes’ formulation is further confirmed by the

Supreme Court’s treatment of Fanfan’s claim.           “In . . . Fanfan’s

case, the District Court . . . imposed a sentence that was

authorized by the jury’s verdict -- a sentence lower than the

sentence authorized by the Guidelines as written.”           Id.     Despite

the fact that there was no Sixth Amendment violation, the Court

vacated and remanded the sentence in order to permit the Government

to seek resentencing, presumably based on the extra-verdict facts

that the district court had refused to consider.           Id.     Thus, the

Court rejected Hughes’ implicit suggestion that the district court




                                    9
would not have erred had it only considered the facts found by the

jury.

      Having failed to correctly identify the error committed by the

district court, the Hughes panel compounded its error by holding

that Hughes’ substantial rights had been affected because he would

have received a lower sentence had the district court imposed

Hughes’ sentence in accordance with the facts found by the jury.

Hughes, 396 F.3d at 380 (“Had the district court imposed a sentence

within that maximum [the maximum authorized by the facts found by

the jury alone], Hughes’ sentence would have been . . . markedly

lower.”).    Had the district court applied the entire holding of

Booker, however, it would have made the same factual findings; it

simply would have treated the Guidelines as advisory, with respect

to   the   sentence   to   be   imposed   in   light   of   those   findings.

Accordingly, prejudice must be determined by comparing what the

district court did under a mandatory regime to “what the district

court would have done had it imposed a sentence in the exercise of

its discretion pursuant to § 3553(a),” id. at 380 n.6 -- an inquiry

expressly rejected in Hughes.1      Under such an analysis, as even the


      1
        Hughes believed it critical, if not dispositive, in
rejecting the prejudice inquiry mandated by Booker that “Hughes
[did] not argue that the district court erred by failing to regard
the guidelines as advisory . . . . Rather, Hughes argues that the
district court erred by imposing a sentence that was greater than
the maximum authorized by the facts found by the jury alone.”
Hughes, 396 F.3d at 380 n.6. But the Supreme Court’s holding in
Booker, not the litigant’s self-serving formulation of his claim,
defines the relevant legal error and prejudice inquiry. See United

                                     10
panel in Hughes conceded, Hughes failed to establish prejudice

because it “simply [did] not know how the district court would have

sentenced Hughes had it been operating under the regime established

by Booker.”         Hughes, 396 F.3d at 381 n.8; see Jones v. United

States, 527 U.S. 373, 390 (1999) (“Where the effect of an alleged

error is . . . uncertain, a defendant cannot meet his burden [under

Rule       52(b)]   of   showing    that   the    error   actually   affected   his

substantial rights.”).2

       That such a comparison is compelled by Booker is confirmed by

the sentencing method district courts are required to employ on

remand, even under Hughes.             As the disposition of Fanfan’s case

confirms, district courts are not free to disregard extra-verdict

facts; rather, district courts must “calculate (after making the

appropriate         findings   of    fact)      the   range   prescribed   by   the

guidelines,” id. at 378-79 (emphasis added), and consider that

range in exercising its discretion pursuant to section 3553(a).




States v. Rodriguez, No. 04-12676, 2005 WL 272952, at *12 (11th
Cir. 2005) (“We disagree with the notion [in Hughes] that the
defendant can define the constitutional error, and thereby
predetermine the third prong of the plain error test, by the
phrasing of his argument.”).
       2
       For the same reason, in cases where an offender has
preserved his Booker challenge, it is unlikely that the Government
will be able to establish that such an error is “harmless beyond a
reasonable doubt” as it is required to do in order to prevail under
Rule 52(a). See Neder v. United States, 527 U.S. 1, 7 (1999).

                                           11
       The Hughes panel erred in its final step as well, exercising

its discretion to notice the error on the grounds that “Booker

wrought    a   major   change   in    how   federal    sentencing      is    to   be

conducted,” Hughes, 396 F.3d at 380, and because “[t]he fact

remains that a sentence has yet to be imposed under a regime in

which the guidelines are treated as advisory.”               Id. at 381 n.8.

While the latter observation is correct -- and, indeed, highlights

the Hughes panel’s erroneous identification of the relevant error

-- affirming pre-Booker sentences will not undermine the “fairness,

integrity or public reputation of judicial proceedings.” Hastings,

134 F.3d at 244 (internal quotation marks omitted).                         As the

Government     explains   in    its   well-taken      petition   for    en    banc

rehearing in Hughes, Hughes “was sentenced under a system that was

used for almost two decades to sentence hundreds of thousands of

offenders.”     And the sentence he received “represent[ed] a 20-year

effort    by   the   Sentencing   Commission    to     formulate    and     update

sentencing policy to reflect the collective wisdom of Congress and

the judiciary; to assign carefully calibrated weights to factors,

both aggravating and mitigating, that judges have traditionally

used in determining appropriate sentences; and to account for the

sentencing purposes identified in 18 U.S.C. § 3553(a).”                     United

States’ Petition for Rehearing En Banc at 14-15, Hughes, 396 F.3d

374.




                                       12
     In stark contrast, the Hughes panel’s sweeping conclusions in

defense of its decision to notice the error in that case would

compel remand in every case where we must apply Rule 52(b) to

Booker errors.    The court itself said in Hughes:

     [I]t is not enough for us to say that the sentence
     imposed by the district court is reasonable irrespective
     of the error. The fact remains that a sentence has yet
     to be imposed under a regime in which the guidelines are
     treated as advisory. To leave standing this sentence
     simply   because   it   falls   within  the   range   of
     reasonableness unquestionably impugns the fairness,
     integrity, or public reputation of judicial proceedings.

Hughes, 396 F.3d at 381 n.8.           As this quotation makes clear,

Hughes’ defense of its exercise of discretion does not rest on the

presence of a Sixth Amendment violation. Rather, it applies to all

sentences imposed pre-Booker –- including those imposed pursuant to

our direction in United States v. Hammoud, 381 F.3d 316 (4th Cir.

2004), for even in those cases the sentence received by the

offender was not “imposed under a regime in which the guidelines

are treated as advisory.”

     Likewise, while Hughes does not address prejudice in the

context of a case without a Sixth Amendment violation, its defense

of its exercise of discretion compels the conclusion that every

sentence imposed pre-Booker violated the offender’s substantial

rights.    Otherwise, we would find ourselves in the indefensible

position   of   holding   that   a   Booker   error   did   not   affect   an

offender’s substantial rights even though, under Hughes, such

errors must be classified as egregious errors that result in the

                                     13
miscarriage of justice. Hughes, in sum, would require us to vacate

and   remand   every   pre-Booker   sentence   on   appeal,   a   result

demonstrably at odds with that contemplated by the Supreme Court.

Booker, 125 S. Ct. at 769 (Breyer, J.) (“Nor do we believe that

ever 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 for the foregoing reasons that I believe that our

decision in United States v. Hughes was fundamentally flawed.




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