                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 03-4511
OWEN ROBINSON, a/k/a Heavy,
             Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 03-4518
KENDALL SCHUYLER, a/k/a Sleepy,
             Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 03-4519
WILLIAM M. PARROS,
             Defendant-Appellant.
                                       
    On Remand from the Supreme Court of the United States.
                    (S. Ct. No. 04-9095)

                      Argued: February 3, 2006

                      Decided: August 9, 2006

     Before NIEMEYER, MOTZ, and KING, Circuit Judges.
2                    UNITED STATES v. ROBINSON
Vacated and remanded by published opinion. Judge King wrote the
opinion, in which Judge Motz joined. Judge Niemeyer wrote an opin-
ion concurring in the judgment.


                             COUNSEL

ARGUED: Gary Allen Ticknor, Elkridge, Maryland, for Appellants.
Robert Reeves Harding, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: G. Godwin Oyewole, Washington, D.C., for
Appellant Owen Robinson; Gerald Durand Glass, Towson, Maryland,
for Appellant William M. Parros. Thomas M. DiBiagio, United States
Attorney, Baltimore, Maryland, for Appellee.


                             OPINION

KING, Circuit Judge:

   Defendants Owen Robinson, Kendall Schuyler, and William Parros
(collectively, the "Defendants") have appealed the sentences imposed
on them in 2003 in the District of Maryland. This is the third separate
occasion for our Court to review sentences the Defendants received
on their jury convictions in 1999 for various offenses relating to a
large drug trafficking conspiracy, centered in the area of Baltimore,
Maryland. The district court initially sentenced the Defendants in
March 2000: Robinson and Schuyler each received life in prison, and
Parros received thirty years. The Defendants promptly appealed their
sentences to this Court (the "First Appeals") and, in November 2001,
we vacated and remanded for resentencing under Apprendi v. New
Jersey, 530 U.S. 466 (2000). See United States v. Johnson, No. 03-
4511, 2001 WL 1349205, at *3 (4th Cir. Nov. 2, 2001) (hereinafter
"Robinson I"). The Defendants were resentenced by the district court
in May 2003, and they thereafter again appealed their sentences to
this Court (the "Second Appeals"). By opinion filed in December
2004, we rejected their new contentions of sentencing error and
affirmed their 2003 sentences. See United States v. Robinson, 390
F.3d 833, 838 (4th Cir. 2004) (hereinafter "Robinson II"). In January
                     UNITED STATES v. ROBINSON                       3
2005, the Supreme Court issued its landmark sentencing decision in
United States v. Booker, 543 U.S. 220 (2005). Subsequently, in April
2005, the Court granted the Defendants’ petitions for certiorari,
vacated our decision in Robinson II, and remanded the Second
Appeals for further consideration in light of Booker. See Robinson v.
United States, 544 U.S. 971-72 (2005) (mem.).

   In Booker, the Court held, inter alia, that a sentencing court com-
mits Sixth Amendment error if it engages in judicial factfinding,
under mandatory Sentencing Guidelines, that results in a sentence
exceeding the maximum term authorized by the jury verdict alone.
See 543 U.S. at 245-46. As explained below, we reject the contention
that the Defendants’ constitutional Booker claims are subject to plain
error review. The Defendants properly preserved their claims of Sixth
Amendment Booker error at their resentencing proceedings in 2003
by raising timely objections under Apprendi, and their contentions
here are subject to review for harmless error. And because the district
court committed constitutional Booker error in its 2003 resentencing
proceedings, and that error was not harmless beyond a reasonable
doubt, we are obliged to vacate the Defendants’ 2003 sentences and
remand.

                                  I.

                                  A.

   On November 23, 1999, a jury in the District of Maryland con-
victed the Defendants and three of their co-defendants of various
drug-related offenses, including conspiracy to distribute cocaine base
(commonly known as "crack cocaine"), in violation of 21 U.S.C.
§ 846. See Robinson I, No. 03-4511, 2001 WL 1349205, at *1 (4th
Cir. Nov. 2, 2001). The essential facts underlying the Defendants’
convictions were summarized by us in Robinson I as follows:

    [The Defendants] are former members of a drug trafficking
    conspiracy based predominantly in the O’Donnell Heights
    area of southeast Baltimore. That conspiracy . . . distributed
    primarily cocaine base, but also sold powder cocaine, her-
    oin, and marijuana. At the height of the conspiracy, [the
    Defendants] required weekly trips to New York to obtain
4                     UNITED STATES v. ROBINSON
    kilogram quantities of powder cocaine, which they would
    cook into cocaine base, in order to supply their operation.
    The volume and profit of the organization was matched by
    its ruthlessness, however, as at least two individuals were
    killed as part of the organization’s attempt to secure control
    over its areas of distribution.

Id. In addition to finding each of the Defendants guilty of conspiracy
to distribute crack cocaine, in contravention of § 846, the jury con-
victed Robinson on a separate count of possessing crack cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and Schuy-
ler for carrying a firearm in connection with a drug trafficking
offense, in violation of 18 U.S.C. § 924(c).

   At the Defendants’ initial sentencing proceedings, conducted in
March 2000, the district court determined that each of the Defen-
dants’ criminal activity involved 1.5 kilograms or more of cocaine
base, and thus assigned each of them a base offense level of 38 under
the then-mandatory Sentencing Guidelines. With respect to Robinson,
the court enhanced his offense level an additional two levels for pos-
session of a firearm, see USSG § 2D1.1(b)(1) (1999), two levels for
his leadership role in the offense, see id. § 3B1.1(c), and two levels
for obstructing justice by committing perjury at trial, see id. § 3C1.1,
for a total of six enhancement levels. The court sentenced Robinson
to life in prison for his § 846 conspiracy conviction, and to a separate
concurrent life sentence for his § 841 conviction. With respect to
Schuyler, the court applied a two-level enhancement for his leader-
ship role in the offense, see USSG § 3B1.1(c), plus a two-level
enhancement for obstruction of justice, see id. § 3C1.1, for a total of
four enhancement levels. The court also applied the murder cross-
reference against Schuyler, which carries a mandatory life sentence,
for his having possessed a firearm that had been used in a murder car-
ried out by a co-defendant. See id. §§ 2A1.1, 2D1.1(d). As a result,
the court imposed a life sentence on Schuyler for his § 846 conspiracy
conviction, plus a consecutive sentence of five years for his § 924(c)
conviction. With respect to Parros, the court imposed a sentence of
thirty years for his § 846 conspiracy conviction.

  After the Defendants noted their First Appeals to this Court, but
before they filed appellate briefs, the Supreme Court rendered its
                       UNITED STATES v. ROBINSON                           5
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). In
Apprendi, the Court held that the Sixth Amendment requires that any
fact, other than a prior conviction, that "increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt." Id. at 490.

   In their First Appeals, the Defendants asserted, as relevant here,
that their sentences had been imposed in contravention of Apprendi,
in that they each exceeded the applicable statutory maximum. These
assertions were premised on the fact that the indictment did not
allege, and the jury had not found, any of the threshold drug quantities
necessary to authorize the sentences imposed.1 As the Defendants had
not asserted Apprendi-type error during their initial sentencing pro-
ceedings, and they had been sentenced prior to Apprendi being
decided, we reviewed their sentencing contentions in Robinson I for
plain error only. See 2001 WL 1349205, at *2. As we explained there,
"[u]nder § 841(b)(1)(C), a defendant whose indictment for a violation
of § 841(a) does not describe the quantities of drugs involved may
receive a [maximum] sentence of twenty years," or "a maximum of
thirty years where the defendant has one or more prior felony convic-
tions." Id. The Defendants had each received sentences in March
2000 in excess of the relevant statutory maximums. Id. at *3. In
addressing their contentions in the First Appeals, we concluded in
Robinson I that

      [t]he life sentences imposed on Schuyler and Robinson are
      in excess of the thirty-year statutory maximum2 . . . demon-
  1
     Under the drug conspiracy statute codified in § 846, a defendant con-
victed under that section "shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the object of the
attempt or conspiracy." Because the Defendants were convicted of con-
spiracy to distribute an indeterminate amount of cocaine base, in viola-
tion of § 841(a), the applicable penalties are found in § 841(b)(1)(C).
Under that provision, the maximum authorized penalties are a term of
imprisonment of twenty years, or, if a defendant has a prior conviction
for a felony drug offense, thirty years, subject to appropriate notice of the
Government’s intention to use such a prior conviction to enhance a sen-
tence being provided pursuant to § 851.
   2
     We note that, prior to Schuyler’s 2003 resentencing hearing, the Gov-
ernment submitted a sentencing memorandum to the district court con-
ceding that the statutory maximum for his § 846 conspiracy conviction
was twenty years, in that it had failed to properly serve Schuyler with
notice under § 851.
6                     UNITED STATES v. ROBINSON
    strating error that is plain. . . . Likewise, because the Gov-
    ernment did not include Parros in its pre-trial § 851
    information, only the twenty-year maximum of
    § 841(b)(1)(C) was authorized as to him. See § 851. With
    respect to the third prong of the plain error inquiry, we have
    found that a sentence in excess of the authorized statutory
    maximum to which a defendant would not otherwise be sub-
    ject affects his substantial rights. Id. Finally, we recently
    determined that where the sentence imposed is defective due
    to a fatal error in the indictment, as is the case here, this
    court should notice that error. United States v. Cotton, 261
    F.3d 397 (4th Cir. 2001).

Id. at *3. Under the rationale of our Cotton decision, on which we
relied in Robinson I, the Defendants’ sentences in excess of the statu-
tory maximums constituted plain error requiring correction on appeal,
because such error "seriously affect[ed] the fairness, integrity or pub-
lic reputation of judicial proceedings." Cotton, 261 F.3d at 406.
Accordingly, in disposing of their First Appeals, we vacated the sen-
tences imposed on the Defendants in 2000 and remanded for resen-
tencing at or below the relevant statutory maximums, as established
by § 841(b)(1)(C). See Robinson I, 2001 WL 1349205, at *3.

                                  B.

   While the Defendants were awaiting resentencing in the district
court following our remand in Robinson I, the Supreme Court granted
certiorari in Cotton, and the district court postponed the Defendants’
resentencing proceedings pending the Court’s decision. Ultimately,
the Supreme Court reversed our decision in Cotton, holding that an
unpreserved Apprendi error need not be corrected on plain error
appellate review if the trial evidence of the allegations missing from
the indictment was "overwhelming" and "essentially uncontroverted."
United States v. Cotton, 535 U.S. 625, 633 (2002) (citation omitted).

   The Defendants were resentenced in the district court on May 23,
2003. At their resentencing proceedings, each of them asserted that,
under Apprendi, their sentences could not be enhanced based on facts
found by the court, rather than the jury. See J.A. 195 (Schuyler
asserted in his 2003 sentencing memorandum that, under Apprendi,
                       UNITED STATES v. ROBINSON                          7
he is "entitled to a jury determination" of drug quantity "beyond a rea-
sonable doubt," rather than judicial factfinding (internal quotation
marks omitted)); J.A. 240-43, 255-56 (Schuyler maintained at 2003
sentencing hearing that jury had not determined drug quantity, as
required for enhanced sentence under Apprendi); J.A. 203-06 (Parros
adopted Schuyler’s sentencing memorandum and asserted at 2003
hearing that jury did not find quantity of drugs necessary for
enhanced sentence); J.A. 276-77 (Robinson contended at hearing that
jury did not determine requisite drug quantities for enhanced sentence).3
The district court overruled the Defendants’ Apprendi contentions,
and, in reliance on the Court’s reasoning in Cotton, found that the trial
evidence of drug quantities was overwhelming and uncontroverted.
The court further found that each of the Defendants was responsible
for at least fifty grams of cocaine base, and that their conspiracy
involved "distributing more than 1.5 kilograms of crack cocaine." J.A.
266. Accordingly, in May 2003, the court resentenced the Defendants
to the identical sentences it had imposed in 2000.

                                    C.

   In June 2003, by way of their Second Appeals, the Defendants
challenged their 2003 sentences, contending, as relevant here, that the
district court had erred in dismissing their Apprendi objections, and
that the evidence against them was neither overwhelming nor uncon-
troverted. The Defendants also sought relief (by way of a supplemen-
tal brief) under the new authority of Blakely v. Washington, 542 U.S.
296 (2004), where the Court held that the Sixth Amendment was con-
travened by mandatory state sentencing procedures that permitted the
use of judicial factfinding to increase sentence maximums.4 By our
  3
     Our citations to "J.A. __" refer to the contents of the Joint Appendix,
filed by the parties in these appeals.
   4
     The Blakely decision had not been issued by the Supreme Court when
the Defendants filed briefs in the Second Appeals in October 2003. After
Blakely was decided on June 24, 2004, the Defendants sought and
received leave to file a supplemental brief raising their Blakely conten-
tions. We rejected their claims under Blakely in a separate order, issued
on August 18, 2004, pursuant to our decision in United States v. Ham-
moud, 381 F.3d 316, 353 (4th Cir. 2004) (en banc) (holding that Blakely
did not apply to Guidelines). Hammoud was subsequently overruled by
Booker.
8                      UNITED STATES v. ROBINSON
decision in Robinson II, filed on December 13, 2004, we rejected the
Defendants’ Apprendi contentions in the Second Appeals and
affirmed the district court’s 2003 sentences. See 390 F.3d 833, 838
(4th Cir. 2004).5

   Soon thereafter, on January 12, 2005, the Supreme Court issued its
decision in United States v. Booker, utilizing the principles of
Apprendi to invalidate the mandatory Sentencing Guidelines under
which the Defendants were resentenced in 2003. See 543 U.S. 220,
244 (2005). In order to cure the Guidelines’ constitutional infirmity,
the Court excised the statutory provisions making the Guidelines
mandatory, thereby rendering them advisory only. Id. at 245. The
principles of Booker were then to be applied to all cases on direct
review. Id. at 268. On April 18, 2005, the Court granted the Defen-
dants’ petitions for certiorari, and vacated and remanded our decision
in the Second Appeals in Robinson II "for further consideration in
light of [Booker]." Robinson v. United States, 544 U.S. 971-72 (2005)
(mem.). Accordingly, the Defendants’ sentences are now before us for
the third time.

    5
   In Robinson II, we incorrectly asserted, as a factual matter, that the
Defendants had not objected on Apprendi grounds to their 2003 sen-
tences. See 390 F.3d 833, 837 (4th Cir. 2004). And, based on our misap-
prehension of the facts, we analyzed their Apprendi claims in the Second
Appeals for plain error. Id. Our decision in Robinson II has since been
vacated by the Supreme Court and is no longer controlling. See Amelkin
v. McClure, 330 F.3d 822, 828 (6th Cir. 2003) (recognizing that decision
vacated by Supreme Court is not controlling). Having now recognized
that the Defendants properly objected at their 2003 resentencing proceed-
ings, moreover, it would be unjust for us to repeat such a factual error.
See, e.g., United States v. Noble, 299 F.3d 907, 910 (7th Cir. 2002)
(reversing previous decision "[i]n light of this panel’s mistake" on factual
issue that revealed panel’s "earlier holding was wrong"). As aptly
observed by John Adams, during his defense of British soldiers charged
with the Boston Massacre, "[f]acts are stubborn things . . . and whatever
may be our wishes, our inclinations, or the dictums of our passions, they
cannot alter the state of facts and evidence." David McCullough, John
Adams 52 (Simon & Schuster 2001).
                      UNITED STATES v. ROBINSON                        9
                                   II.

   In the present proceedings, on remand from the Supreme Court, the
Defendants contend that the sentencing court committed Sixth
Amendment Booker error in imposing their 2003 sentences. The
Defendants assert that these sentences were impermissibly based upon
quantities of drugs, found by the sentencing judge only, which were
neither charged in the indictment nor proven to the jury beyond a rea-
sonable doubt. We begin by ascertaining the applicable standard of
review.

   In a criminal appeal, the appropriate standard of review generally
depends upon whether an appellant has properly preserved a claim of
error by asserting a timely objection in the court below — that is,
whether the error was "brought to the [district] court’s attention." Fed.
R. Crim. P. 52(b). If an appellant has timely objected, his assertion
of error has been preserved, and we are obliged to apply the "harmless
error" standard provided by Federal Rule of Criminal Procedure
52(a). See United States v. Olano, 507 U.S. 725, 731-32 (1993).
Under the harmless error standard, "[a]ny error . . . that does not
affect substantial rights must be disregarded." Fed. R. Crim. P. 52(a).
If an appellant failed to timely object to an alleged error, however, we
are obliged to apply the "plain error" standard set forth in Rule 52(b).
See Olano, 507 U.S. at 731. Under the plain error standard, a court
of appeals may correct (1) an error, (2) that is plain, and (3) that
affects a defendant’s substantial rights, but only if (4) the error seri-
ously affects the fairness, integrity, or public reputation of judicial
proceedings. See id. at 732; United States v. Rodriguez, 433 F.3d 411,
414-15 (4th Cir. 2006). Although subsections (a) and (b) of Rule 52
contemplate the same inquiry into an error’s effect on substantial
rights, an appellant on plain error review bears the burden of persua-
sion with respect to prejudice. See Rodriguez, 433 F.3d at 416. Under
harmless error review, however, it is the Government that bears the
burden of establishing that error was harmless. See id. Thus, we must,
as a threshold matter, ascertain whether the constitutional Booker
error now complained of by the Defendants was properly preserved
in the district court.

  As we have recognized, a defendant who was sentenced prior to the
Court’s 2005 Booker decision has properly preserved a claim of
10                    UNITED STATES v. ROBINSON
Booker error if he "plainly notified the court of his position that he
was being sentenced illegally, and he identified the line of Supreme
Court precedent upon which he now relies." Rodriguez, 433 F.3d at
416 (recognizing that claim of statutory Booker error has been pre-
served by raising timely Blakely objection at sentencing). Thus, by
objecting at sentencing under the rationale of Apprendi, the primary
precedent upon which Booker relied, a defendant has properly pre-
served a claim of Booker error. See United States v. Sullivan, __ F.3d
__, No. 03-4601, slip op. at 26 (4th Cir. July 11, 2006) (King, J., con-
curring) (concluding for panel majority that defendants preserved stat-
utory Booker error by objecting on basis of Apprendi at sentencing);
see also United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir.
2005) (recognizing that Booker error is preserved if defendant below
asserted Apprendi error); United States v. Tupone, 442 F.3d 145, 157
(3d Cir. 2006) (same).

   Here, the Defendants interposed no objections at their sentencing
proceedings in March 2000 on the basis of Apprendi or Blakely,
because the Supreme Court had not yet rendered either of those deci-
sions.6 Thus, in Robinson I, we were obliged to review the Defen-
dants’ contentions of Apprendi error regarding their 2000 sentences
for plain error. See No. 03-4511, 2001 WL 1349205, at *2 (4th Cir.
Nov. 2, 2001). In these appeals, however, we are reviewing their 2003
sentences imposed by the district court at the Defendants’ resentenc-
ing proceedings. And, in those proceedings, each Defendant objected,
under Apprendi, to the judicial factfinding utilized in their 2003 sen-
tencing proceedings. Thus, each Defendant "plainly notified the court
of his position that he was being sentenced illegally, and [ ] identified
the line of Supreme Court precedent upon which he now relies." See
Rodriguez, 433 F.3d at 416. Accordingly, the Defendants have prop-
erly preserved their claims of Sixth Amendment Booker error regard-
ing their 2003 sentences, and we are now obliged to review their
Booker contentions for harmless error.7
  6
    The Defendants were initially sentenced in March 2000, and Apprendi
was decided on June 26, 2000. They were resentenced in May 2003, and
Blakely was decided on June 24, 2004.
  7
    To be sure, the parties have assumed and asserted in the Second
Appeals that the Defendants’ contentions on their 2003 sentences should
                       UNITED STATES v. ROBINSON                        11
                                   III.

   The Defendants contend that the district court committed Sixth
Amendment Booker error in predicating their 2003 sentences upon
quantities of cocaine base found by the sentencing judge only, which
were neither charged in the indictment nor proven to the jury beyond
a reasonable doubt. The Government contends, on the other hand, that
the Defendants’ sentences should be affirmed because any Booker
error committed in the 2003 resentencing proceedings was harmless,
and because the evidence of the drug quantities involved was both
overwhelming and uncontroverted.

   In assessing a contention of Sixth Amendment Booker error under
harmless error review, we are obliged to determine (1) whether such
an error occurred, and (2) if so, whether it affected the defendant’s
substantial rights. See United States v. Shatley, 448 F.3d 264, 266-67
(4th Cir. 2006). As we have recently explained, a sentencing court has
committed Sixth Amendment error when, "operating under a pre-
Booker mandatory guidelines regime," it has engaged in judicial fact-
finding resulting in a sentence that "exceeds the maximum guideline
sentence authorized by the jury verdict alone." United States v. Smith,
441 F.3d 254, 271 (4th Cir. 2006) (citing United States v. Hughes,
401 F.3d 540, 547-49 (4th Cir. 2005)). And such a Sixth Amendment
error affects a defendant’s substantial rights unless the Government
can "prove beyond a reasonable doubt" that the error was harmless —

be reviewed by us for plain error. We are not, however, bound by the
parties’ views of such an issue, particularly when those views conflict
with the facts or the law. "[O]ur judicial obligations compel us to exam-
ine independently the errors confessed." Young v. United States, 315 U.S.
257, 258-59 (1942); see also United States v. Mackins, 315 F.3d 399,
406 & n.3 (4th Cir. 2003) (engaging in extended assessment of proper
standard of review even though defense counsel assumed that review was
for plain error); United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir.
1992) (en banc) ("The parties’ failure to brief and argue properly the
appropriate standard may lead the court to choose the wrong standard.
But no party has the power to control our standard of review."); 5 C.J.S.
Appeal and Error § 748 ("[C]oncession of a point on appeal is by no
means dispositive of a legal issue.").
12                    UNITED STATES v. ROBINSON
that is, that "the court would have imposed the same sentence in the
absence of the constitutional error." See Shatley, 448 F.3d at 267.

   In resentencing the Defendants in May 2003, the district court
found each of the Defendants to be responsible for at least fifty grams
of cocaine base, and also found that their conspiracy involved "dis-
tributing more than 1.5 kilograms of crack cocaine." J.A. 266. Having
found that "overwhelming" and "uncontroverted" evidence supported
the sentences it had imposed in March 2000, the court reimposed the
same sentences on the Defendants. Based solely on its findings on
drug quantities, the court increased each of the Defendants’ base
offense levels from 12 (the applicable offense level for an indetermi-
nate quantity of cocaine base) to 38. Moreover, the court enhanced
the Defendants’ various sentences based on findings regarding such
factual issues as leadership role, obstruction of justice, possession of
a firearm, and responsibility for an uncharged murder. Absent this
judicial factfinding, the maximum sentences the Defendants could
have received under the Guidelines would have been less than those
actually imposed.8 Thus, the Defendants have sufficiently established
that Sixth Amendment Booker error occurred with respect to their
2003 sentences, and they are entitled to relief unless the Government
can prove beyond a reasonable doubt that they would have received
the same sentences absent the Sixth Amendment error. And, as
explained below, the Government is unable to make such a showing
here.

   First, the Government maintains that the district court can (and
likely will) impose the same sentences on remand, under an advisory
Guidelines regime, because it has already sentenced the Defendants
to their respective sentences on two separate occasions. As we have
heretofore explained, however, whether a court, on remand, may
impose the same sentence under an advisory Guidelines regime is
irrelevant to the assessment of a Sixth Amendment error’s effect on
a defendant’s substantial rights. See Hughes, 401 F.3d at 552 (recog-
nizing that possibility that defendant will receive same sentence under
  8
   Under the Guidelines, absent any judicial factfinding, the base offense
level of 12 would have resulted in the following maximum potential sen-
tences under § 846: Robinson (27 months); Schuyler (33 months); and
Parros (37 months).
                      UNITED STATES v. ROBINSON                      13
Booker remedial scheme of advisory Guidelines is not relevant to
assessment of whether defendant has demonstrated prejudice from
Sixth Amendment violation).9

   Second, the Government contends that two of the Defendants —
Parros and Schuyler — would have received the same sentences
absent the Sixth Amendment Booker error. With respect to Parros, the
Government maintains that he would have received the same sentence
because he was designated in the presentence report (the "PSR") as
a career offender. In resentencing Parros in 2003, however, the court
made no mention of sentencing him as a career offender. Rather, the
court explicitly based Parros’s sentence upon its finding of a drug
quantity (1.5 kilograms of cocaine base) corresponding to an offense
level of 38. See J.A. 209. In any event, even if Parros were sentenced
as a career offender, as the Government would have it, his maximum
Guidelines sentence would have been 327 months, less than the 360
months (thirty years) imposed on him in 2003. Thus, even if Parros
could have been sentenced as a career offender, that fact would not
render the court’s Sixth Amendment error harmless.

   The Government also contends that Schuyler would have received
a life sentence, absent the Sixth Amendment error, because the cross-
reference for murder, pursuant to USSG §§ 2A1.1, 2D1.1(d) (2002),
carries a mandatory sentence of life. In finding Schuyler guilty of the
illegal possession of a firearm, however, the jury did not thereby also
find that he had committed a murder. The application of the murder
cross-reference to Schuyler was thus predicated upon judicial fact-
finding and, because it increased Schuyler’s sentence above the
Guidelines maximum otherwise authorized by the jury’s verdict, it
also contravened Booker. See United States v. Gray, 405 F.3d 227,
243-44 (4th Cir. 2005) (recognizing Sixth Amendment error where
judicial factfinding increased sentence by way of murder cross-
  9
   We recently recognized, in United States v. Shatley, that the Govern-
ment carries its burden of demonstrating that a constitutional Booker
error is harmless beyond a reasonable doubt where "the district court
announced an alternative nonguideline sentence under 18 U.S.C.
§ 3553(a) identical to the Guidelines sentence." See 448 F.3d at 267.
Because the court announced no such alternative sentences in the 2003
resentencing proceedings, Shatley is inapplicable here.
14                    UNITED STATES v. ROBINSON
reference). Thus, far from rendering the sentencing court’s Booker
error harmless as to Schuyler, application of the murder cross-
reference in his 2003 sentencing constituted Sixth Amendment error
as well.

   Finally, the Government maintains, in reliance on the Supreme
Court’s holding in United States v. Cotton, 535 U.S. 625 (2002), that
we should disregard the Sixth Amendment Booker error in the Defen-
dants’ 2003 resentencing proceedings because the evidence regarding
the drug quantities involved in their conspiracy was both "over-
whelming" and "uncontroverted." The Cotton principles, however, are
applicable only on plain error review, and we are reviewing the
Defendants’ 2003 sentences for harmless error. See United States v.
Smith, 441 F.3d 254 (4th Cir. 2006) (applying Cotton principles to
Booker claim on plain error review). Thus, because Cotton is inappli-
cable here, this final contention also fails.10

   The Government is thus unable to meet its burden of establishing
that the constitutional Booker errors in the Defendants’ 2003 resen-
tencing proceedings were harmless beyond a reasonable doubt. As a
result, their 2003 sentences must be vacated, and we are obliged to
remand for resentencing. See Hughes, 401 F.3d at 546.11
   10
      Just as Cotton does not apply to our review of the Defendants’ 2003
sentences, the district court erroneously applied Cotton when imposing
those sentences. As explained above, each of the Defendants interposed
objections under Apprendi, thus preserving their claims of Sixth Amend-
ment error. We note that the district court erroneously applied Cotton
when resentencing the defendants in 2003. The Cotton holding applies
only to appellate standards of review; it has no bearing on a district
court’s resentencing decision. Thus, on remand, the district court should
resentence the Defendants at or below their relevant statutory maxi-
mums, as established solely by the facts alleged in the indictment and
found by the jury.
   11
      In their supplemental briefs, submitted to us following remand from
the Supreme Court, the Defendants advance an additional contention
raised in Robinson II — that, under the "mandate rule," the district court
lacked any authority to postpone their resentencing proceedings to await
a Supreme Court decision. We rejected that contention in Robinson II,
and we are content to do so again here.
                      UNITED STATES v. ROBINSON                      15
                                  IV.

  Pursuant to the foregoing, we vacate the Defendants’ sentences and
remand for such other and further resentencing proceedings as may
be appropriate.

                                        VACATED AND REMANDED

NIEMEYER, Circuit Judge, concurring in the judgment:

   While I concur in the judgment remanding this case for resentenc-
ing, I cannot concur in the majority’s reasoning in applying the harm-
less error standard.

   Because the defendants were tried, convicted, and sentenced with-
out preserving an Apprendi/Booker* Sixth Amendment error by mak-
ing a timely objection at trial, see Fed. R. Crim. P. 51, they forfeited
their objection except to the extent that they are able to persuade us
to review the error under the plain error doctrine, see United States
v. Olano, 507 U.S. 725 (1993). In Olano, the Supreme Court noted:

    No procedural principle is more familiar to this Court than
    that a constitutional right, or a right of any other sort, may
    be forfeited in criminal as well as civil cases by the failure
    to make timely assertion of the right before a tribunal having
    jurisdiction to determine it.

Id. at 731 (internal quotation marks and citation omitted). Such for-
feited rights, however, may be reviewed in "limited" circumstances as
provided by Federal Rule of Criminal Procedure 52(b). Id. at 731-32.

   In this case, the defendants did not — indeed could not — assert
and therefore preserve their Apprendi/Booker Sixth Amendment
objection during trial because neither Apprendi nor Booker had then
been decided. The trial took place in November 1999, and sentencing
took place in March 2000. Thus, the trial and sentencing were con-

  *See Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v.
Booker, 543 U.S. 220 (2005).
16                    UNITED STATES v. ROBINSON
ducted in conformity with then-existing understandings of the Sixth
Amendment’s requirements — the jury determined that the defen-
dants trafficked in drugs in violation of 28 U.S.C. § 841(a), and the
district court determined that the drug quantities involved exposed the
defendants to sentences longer than 20 years’ imprisonment, as pro-
vided by 20 U.S.C. § 841(b). In accordance with this procedure, Rob-
inson was sentenced to two life sentences, to run concurrently;
Schuyler was sentenced to life imprisonment plus 60 months; and
Parros was sentenced to 360 months’ imprisonment. Because the
defendants failed, during those proceedings, to object to the error in
procedure that the court, not the jury, was making drug-quantity find-
ings, the defendants forfeited their right to object to the error. Accord-
ingly, appellate review thereafter had to be conducted under Federal
Rule of Criminal Procedure 52(b) for plain error, if at all. See Olano,
507 U.S. at 731-32.

   The proceedings that have followed entry of judgment in this case
have involved solely the efforts of the district court and this court to
review the district court’s original sentences and resentences in light
of the newly emerging principles of Apprendi and Booker. On the
defendants’ first appeal, we noticed plain error under Apprendi and
remanded for resentencing. See United States v. Johnson, 26 Fed.
Appx. 111 (4th Cir. 2001). On the defendants’ second appeal, we
affirmed the defendants’ sentences, relying on the plain error doctrine
as applied in United States v. Cotton, 535 U.S. 625 (2002). See United
States v. Robinson, 390 F.3d 833, 838 (4th Cir. 2004). Finally, the
Supreme Court granted certiorari, vacated our last decision, and
remanded to us to consider the sentences in light of its intervening
decision in United States v. Booker, 543 U.S. 220 (2005). See Robin-
son v. United States, 544 U.S. 971 (2005). All of these proceedings
have been efforts to correct the Sixth Amendment error that had not
been objected to at trial but which we noted as plain error.

   To suggest now for the first time that our standard of review must
be the harmless error standard is shocking — indeed, no party has
even challenged the application of plain error review. The error was
originally forfeited at least as early as sentencing in March 2000 and
then noticed by us under the plain error doctrine. To review it now
under harmless error implies that the objection was made when the
error could have been corrected. See United States v. Hubbard, 603
                      UNITED STATES v. ROBINSON                        17
F.2d 137, 142 (10th Cir. 1979) (objections to error must be presented
to the trial judge so as not to deprive the judge and opposing counsel
the opportunity to take corrective action); United States v. Woodner,
317 F.2d 649, 651-52 (2d Cir. 1963) (objection to error must be made
"while there is still time to rectify the asserted error"). But the objec-
tion was not timely made. The defendants objected after sentencing
and have merely reiterated their objection at every turn, including at
resentencing and on appeal.

   Of course, to apply a harmless error standard now has significant
implications — it shifts the burden from the defendants to show prej-
udice to the government to show the absence of prejudice. See Olano,
507 U.S. at 741. If the error had not been forfeited, the government
might have been able to avoid the error by presenting evidence of
drug quantities to the jury for determination. This is, at bottom, the
motivation for making distinctions between plain error and harmless
error — to avoid prejudicing a party who acted in conformity with the
law as it existed at the time. So it is manifestly unfair now to impose
on the government the burden to demonstrate an absence of prejudice
from its failure to make a showing that it never had a chance to make.
Because the defendants’ objections came too late, "[t]his is a plain-
error case," and will always be a plain-error case, so "it is [the defen-
dants] who must persuade the appellate court that the deviation from
[the Sixth Amendment] was prejudicial." Id.

   The majority argues that, because the defendants raised Apprendi
at their resentencing and cited Blakely v. Washington, 542 U.S. 296
(2004), during their second appeal to assert the Apprendi/Booker
error, they "preserved" their Apprendi/Booker objection such that our
review now must be for harmless error. This argument, as already
noted, holds no water, and it defies the majority’s own logic. As the
majority points out, an objection based on Apprendi is tantamount to
making a Booker objection. See United States v. Sullivan, ___ F.3d
___, No. 03-4601 (4th Cir. July 11, 2006) (King, J., concurring and
writing for the court on this issue). This equivalence necessarily
means that the defendants have never raised a "new" error that might
be amenable to harmless error review.

  Not only is the majority’s recognition of a "new" error inconsistent
with the observations made in Sullivan, the majority’s foundational
18                    UNITED STATES v. ROBINSON
assumptions fail to recognize the nature of the Apprendi/Booker error.
At its core, the Apprendi/Booker error is grounded on the failure to
submit to the jury for factfinding evidence that theretofore had been
considered sentencing facts subject to the court’s factfinding. Only a
new trial could provide the government with the opportunity to pre-
sent such facts to the jury.

   Thus, at the 2003 resentencing, the fact remained that the govern-
ment had not been given the opportunity to present evidence of drug
quantities to the jury. The 2003 resentencing proceeding was only an
effort to work around this still-persistent Sixth Amendment failure
through application of doctrines that might avoid the need of a new
trial. Thus, the trial court applied the principle that because the evi-
dence of drug quantity was uncontroverted and overwhelming, fact-
finding by the court and not the jury did not affect substantial rights.

   As we now again send this case back to the district court for resen-
tencing under Booker-specific principles, the court will again deter-
mine sentencing facts, but now under a non-mandatory sentencing
structure that avoids the Apprendi/Booker error. Even now, however,
the 1999 Apprendi/Booker error persists, in that the jury was never
given the responsibility of finding sentencing facts. But Booker itself
will now allow the district court to find sentencing facts as an act of
discretion, not as a mandate, which had rendered its earlier factfinding
unconstitutional.

   At bottom, the district court’s goal at the 2003 resentencing and
now on remand will be to correct the 1999 Apprendi/Booker error that
was forfeited but which we noticed on the first appeal. The defen-
dants’ repetition of their objection to this error — made on the first
appeal; made again to the district court at the 2003 resentencing; and
made again to us in the second appeal — does not make the error a
new error. Repeating a same, late objection more than once does not
make it any more timely. Or stated otherwise, the same error once for-
feited cannot be converted to one preserved simply by repeating the
objection.

   While I thus disagree with the majority’s application of harmless
error at this stage of the proceedings, I agree that this case should be
remanded for resentencing under our most recently announced juris-
                    UNITED STATES v. ROBINSON                   19
prudence under Booker. See, e.g., United States v. Hughes, 401 F.3d
540, 547-49 (4th Cir. 2005); United States v. Green, 436 F.3d 449,
455-56 (4th Cir. 2006); United States v. Moreland, 437 F.3d 424,
431-34 (4th Cir. 2006).
