                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4158


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

SAUL RAMIREZ-CASTILLO,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort.    Sol Blatt, Jr., Senior District
Judge. (9:11-cr-02365-SB-1)


Argued:   March 18, 2014                  Decided:   April 30, 2014


Before GREGORY, WYNN, and THACKER, Circuit Judges.


Vacated and remanded by published opinion. Judge Thacker wrote
the opinion, in which Judge Gregory and Judge Wynn joined.


ARGUED: Cameron Jane Blazer, SAVAGE LAW FIRM, Charleston, South
Carolina, for Appellant. Robert Nicholas Bianchi, OFFICE OF THE
UNITED   STATES  ATTORNEY,  Charleston,  South   Carolina,  for
Appellee. ON BRIEF: William N. Nettles, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.
THACKER, Circuit Judge:

               In this appeal, we review the propriety of a prison

sentence imposed subsequent to a jury trial in which the jury

made two specific factual findings but never returned a guilty

verdict.        Saul     Ramirez-Castillo           (“Appellant”)           challenges       his

conviction and sentence for possession of a prohibited object by

a federal inmate.            On December 14, 2011, Appellant                    was charged

in   a    single-count         indictment          with     “knowingly        possess[ing]

prohibited objects, that is, two homemade weapons,” while an

inmate    at    a   Federal     Correctional         Institute         in    Estill,      South

Carolina        (“FCI        Estill”),     in        violation          of      18       U.S.C.

§§   1791(a)(2),        (b)(3),    and    (c).        A    jury    trial      was     held    on

September 25, 2012.              At the conclusion of the evidence, the

district court charged the jury with determining: (1) whether

the first object at issue was a “weapon”; and (2) whether the

second object at issue was possessed by Appellant.                                   The jury

answered       “yes”    to     each    question,          but    was    never        asked   to

determine whether Appellant was “guilty” or “not guilty” of the

charged    offense.          Although    the       jury    never    returned         a   guilty

verdict, the parties proceeded to sentencing on February 21,

2013.     Appellant was sentenced to 33 months’ imprisonment, to be

served     consecutively          to     his       prior        undischarged         term    of

imprisonment of 66 months.



                                               2
            Because   we       conclude       the   district    court    violated

Appellant’s right to have a jury determine his guilt beyond a

reasonable doubt, we vacate Appellant’s conviction and sentence,

and we remand the case to the district court.

                                         I.

                                         A.

            On November 5, 2011, while Appellant was serving a 66-

month sentence for illegal re-entry after deportation at FCI

Estill, prison officials conducted two searches that gave rise

to the charges in this case.           The first search was a pat-down of

Appellant’s    person,     during     which     a   prison   official   found   an

object,   described   as       “[a]   homemade      shank,   approximately     five

inches long, with a sharp point,” J.A. 33 (“Exhibit 1”), 1 inside

of   Appellant’s   pocket.        After       discovering    Exhibit    1,   prison

officials     conducted    a    search    of     Appellant’s    jail    cell    and

locker.     Inside Appellant’s locker, prison officials found a

nine-and-a-half-inch piece of metal, sharpened to a point on one

end (“Exhibit 2”).        Appellant’s locker also contained four pairs

of shoes, as well as several of Appellant’s personal items.

            Appellant did not waive his right to a trial by jury,

and trial commenced on September 25, 2012.                   Testifying in his


      1
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                          3
own defense, Appellant admitted to making and possessing Exhibit

1, claiming that he used it as a tool to alter or fix ill-

fitting shoes.          Further, Appellant identified several pairs of

shoes that were recovered from his locker and stated that he had

either    sewn   patches     or    attached       new    soles     to   those       shoes.

Appellant     also   testified     that     he    never     used   Exhibit      1    as    a

weapon and that he never planned to use it as a weapon.                                   On

cross-examination,        however,    Appellant         acknowledged      that      if    he

were attacked and his life was in danger, he would use Exhibit 1

to   defend    himself    against    such       an   attack.       With   respect         to

Exhibit 2, Appellant acknowledged that, based on its appearance,

Exhibit   2    could     seriously   hurt        someone.      However,      Appellant

testified that he had never seen Exhibit 2 before the search nor

had he used it for any reason.                  On cross-examination, Appellant

also stated that his locker had a combination lock on it, that

no one else had the combination, and that he was the only one

who had access to the locker.

                                           B.

              Several    times    during    the      trial,    Appellant’s       counsel

and Government counsel discussed possible jury instructions and

verdict forms with the district court.                  Just before the close of

the Government’s case, Appellant’s counsel summarized for the

district court the issues that she believed were contested: “As

to the first thing [Exhibit 1], the issue is whether the thing

                                           4
is a weapon.       As to the second thing [Exhibit 2], the issue is

whether the thing was possessed.”                J.A. 73.        Thus, Appellant’s

counsel stated, “it may behoove us, notwithstanding the fact

that they were indicted in a single count together, to prepare a

special verdict form that allows the jury to walk through [the

Exhibits]   item    by    item.”        Id.    Government        counsel   suggested

preparing a verdict form that separately listed Exhibit 1 and

Exhibit 2 and asked the jury to find Appellant “guilty” or “not

guilty” as to each Exhibit.               Id. at 74.        The district court,

however,    indicated      that    it    did   not   “know       that   that’s   any

different    from    telling       the    jury    that      in    order    to    find

[Appellant] guilty, . . . they’ve got to find he had possession

of one of these [Exhibits] that they considered to be a weapon.”

Id.   The district court then asked Appellant’s counsel, “[d]oes

that suit you . . . ?”        Id. at 75.         Appellant’s counsel replied,

“[t]hat would be just fine, Your Honor.”              Id.

            During a subsequent discussion about the verdict form,

the following exchange occurred:

      THE COURT:         Ms. Blazer [Appellant’s Counsel], as I
      understand         that     from   [Appellant]’s,   really
      [Appellant]’s       own testimony, in so far as possession
      to Exhibit 1,      he admits that?

      MS. BLAZER:    Yes.

      THE COURT:   And so far as the Exhibit 2, [Appellant]
      admits that that satisfies as a weapon?



                                          5
    MS. BLAZER: That . . . is a reasonable conclusion for
    the jury to draw, yes, Your Honor.

    THE COURT: Do I -- I was thinking about charging the
    jury as to [Exhibit] 1 that they had to determine
    whether it was a weapon --

    MS. BLAZER:    Yes.

    THE COURT:    -- and nothing else.

    MS. BLAZER:    As to Exhibit 1, yes, Your Honor.

    THE COURT:    And as to [Exhibit]       2,   they   have   to
    determine whether he possessed it.

    MS. BLAZER:    Yes, Your Honor, I agree completely.

    THE COURT:     Now, Mr. United States Attorney, you agree
    with this?

    MR. BIANCHI [Government Counsel]:    I do, Your Honor.
    I think it’s undisputed on Exhibit 2 at this point.

J.A. 114-15.     Appellant’s counsel also noted, “just out of an

abundance of caution,” that “implicit in number 1 and number 2

on this verdict form is that if the answer to either number 1 or

number 2 is yes, then the jury would be finding [Appellant]

guilty,” but that “[i]f the answer to both is no, the jury must

find him not guilty.”     Id. at 115.    The district court agreed

that if the jury answered “no” to both questions, the court

would find, “as a matter of law,” that Appellant was not guilty.

See id. at 115-16.     Appellant’s counsel agreed, describing the

verdict form as the jury’s “verdict as a finding of fact.”          Id.

at 116.   Despite this “implicit” understanding by the district

court and the parties, nowhere did the proposed verdict form

                                 6
require the jury to determine whether Appellant was “guilty” or

“not guilty.”       At the conclusion of this exchange, Government

counsel acknowledged that he was satisfied with a verdict form

of this nature.

            Ultimately, the district court drafted a verdict form

that posed only the following two questions:

     (1)    Do you, the jury, unanimously find that Government’s
            Exhibit One is a weapon?

     (2)    Do you, the jury, unanimously find that [Appellant]
            possessed Government’s Exhibit Two?

J.A. 136.        In its oral jury instructions, the district court

explained that for Appellant to be found guilty, the jury was

required    to    find   the   following   elements   beyond   a   reasonable

doubt:

    First, that [Appellant] was an inmate of the federal
    correctional facility.

    Two, that [Appellant] possessed the prohibited object,
    specifically a weapon.

    Three, that he did so              without the knowledge        and
    consent of the warden              or superintendent of         the
    facility.

    And four, that he did so knowingly and willfully.

Id. at 122-23.

            The    district    court   then   proceeded   to   explain    the

verdict form to the jury.          The court began by noting that the

parties had agreed Appellant possessed Exhibit 1, so the “issue

as to Exhibit Number 1 is whether it’s a weapon as I’ve defined

                                       7
a weapon.”       J.A. 127.     The district court continued, “the issue

. . . as to Exhibit Number 2, is did [Appellant] possess that.

Everyone agreed that that’s a weapon.”                   Id. 2     After the court

finished its instructions, the jury began deliberating.

            Later that day, the jury reached a decision regarding

the two questions asked of it, which was read in open court.                       As

to the first question on the verdict form, the jury answered

“yes,” unanimously finding that Exhibit 1 was a weapon.                         As to

the second question, the jury also answered “yes,” unanimously

finding that Appellant possessed Exhibit 2.                      The district court

then thanked the jury for its service, and the jury was excused

without making any other findings.

                                         C.

             Appellant’s     Presentence       Report    calculated       his   total

offense     level   at   13,   pursuant       to   United        States   Sentencing

Guideline    §    2P1.2(a)(2).      In       addition,     14     criminal   history

points placed Appellant in criminal history category VI.                        Based

on a total offense level of 13 and a criminal history category

of VI, the Sentencing Guideline range for imprisonment was 33 to

41 months, consecutive to any other term.                 On February 21, 2013,


     2
       As part of its presentation of evidence at trial, the
Government did not provide the jury with any formal stipulations
concerning the facts that the district court described as
“agreed” upon by the parties.



                                         8
after holding a sentencing hearing, the district court imposed a

sentence of 33 months’ imprisonment, to be served consecutively

to Appellant’s sentence for illegal reentry.                          On February 25,

2013,     the   district     court   issued           a     judgment       order,       which

indicated that Appellant was “adjudicated guilty” of possessing

contraband in prison, in violation of 18 U.S.C. §§ 1791(a)(2),

(b)(3), and (c).       J.A. 158.     Appellant timely appealed from this

judgment order.       We possess jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a).

                                         II.

            Appellant      raises    a        number      of      challenges       to    his

conviction and sentence.          Because it will be dispositive of this

appeal,    we   address    only   the     propriety          of    Appellant’s      prison

sentence imposed by the district court after a jury simply made

two factual findings but did not return a general verdict of

“guilty” or “not guilty.”

            Before     proceeding        to     the       merits     of     this    issue,

however, we must determine the applicable standard of review.

Appellant acknowledges that his trial counsel did not raise an

objection to the special verdict form as drafted by the district

court   and,    therefore,    asserts         that    our    review       should    be    for

plain   error.       The   Government,        however,       contends       that    if    the

district court’s use of the special verdict form was erroneous,



                                          9
any error was invited by Appellant and is thus unreviewable on

appeal.

            Pursuant to the “invited error” doctrine, “‘a court

can not be asked by counsel to take a step in a case and later

be   convicted      of   error,     because     it     has    complied     with    such

request.’”    United States v. Herrera, 23 F.3d 74, 75 (4th Cir.

1994)    (quoting     Shields     v.   United    States,      273   U.S.    583,   586

(1927)).     However, where an appellant simply fails to raise an

objection    on   a    particular      issue    that    is   before   the    district

court, our review is for “plain error.”                      See Fed. R. Crim. P.

52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993).

            Based on our review of the record, we conclude that

Appellant did not invite any alleged error below.                        While it is

true that Appellant’s counsel first proposed utilizing a special

verdict    form   in     this   case,    it    was     the   district    court     that

rejected    Government      counsel’s     additional         suggestion     that   the

verdict form should ask the jury for a “guilty” or “not guilty”

finding as to Exhibit 1 and Exhibit 2.                        The district court

drafted the questions that eventually went to the jury, and both

parties accepted those questions without objection.                        Therefore,

this is a case in which an unpreserved error is being raised for

the first time on appeal, and we review the issue for plain

error.



                                         10
                                           III.

             Our    authority    to   review        errors   not   brought     to   the

attention of the district court is derived from Federal Rule of

Criminal Procedure 52(b), which provides, “[a] plain error that

affects substantial rights may be considered even though it was

not brought to the court’s attention.”                  Fed. R. Crim. P. 52(b).

Pursuant to Rule 52(b), we may correct a forfeited error only if

an error was made, the error is plain, and the error affects

substantial rights.        See Henderson v. United States, 133 S. Ct.

1121, 1126 (2013); United States v. Olano, 507 U.S. 725, 732

(1993).      Because    “Rule    52(b)       is   permissive,      not    mandatory,”

Olano, 507 U.S. at 735, even after the above three-part showing

has been made, the decision to correct the error remains within

our discretion, see United States v. Carthorne, 726 F.3d 503,

510 (4th Cir. 2013).           The Supreme Court has explained that the

standard guiding the exercise of an appellate court’s remedial

discretion     is    whether     “the       error     ‘seriously     affect[s]      the

fairness,      integrity        or      public        reputation     of       judicial

proceedings.’”       Olano, 507 U.S. at 736 (quoting United States v.

Atkinson, 297 U.S. 157, 160 (1936) (alteration in original)).

             Accordingly, we will correct an unpreserved error if

(1) an error was made; (2) the error is plain; (3) the error

affects substantial rights; and (4) the error seriously affects

the   fairness,      integrity,       or     public     reputation       of   judicial

                                            11
proceedings.        See Henderson, 133 S. Ct. at 1126-27.                      With this

standard in mind, we turn to the instant case.

                                            A.

              We    begin    our    plain    error      analysis       by    considering

whether the district court erred when it failed to require the

jury     in   Appellant’s     trial     to       return     a    general     verdict     of

“guilty” or “not guilty” and instead presented the jury with a

special verdict form that merely asked for two factual findings.

              The Due Process Clause of the Fifth Amendment and the

jury trial guarantee of the Sixth Amendment “require criminal

convictions to rest upon a jury determination that the defendant

is   guilty    of    every    element       of    the   crime     with      which   he   is

charged, beyond a reasonable doubt.”                      United States v. Gaudin,

515 U.S. 506, 509-10 (1995).                     The right to a trial by jury

“includes, of course, as its most important element, the right

to have the jury, rather than the judge, reach the requisite

finding of ‘guilty.’”          Sullivan v. Louisiana, 508 U.S. 275, 277

(1993)    (citing     Sparf    v.    United       States,       156   U.S.   51,    105–06

(1895)); see also United States v. Muse, 83 F.3d 672, 679 (4th

Cir. 1996) (explaining that it is a “fundamental principle that

if a defendant avails himself of his Sixth Amendment right to

trial by jury, only the jury can reach the requisite finding of

‘guilty’” (internal quotation marks omitted)).                        When a defendant

has not knowingly, voluntarily, and intelligently waived his or

                                            12
her right to a trial by jury, see Fed. R. Crim. P. 23(a); United

States v. Boynes, 515 F.3d 284, 287 (4th Cir. 2008), a court may

not enter a judgment of conviction “no matter how overwhelming

the evidence,” Sullivan, 508 U.S. at 277; see also United States

v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977).

           As the Supreme Court has noted, “[t]he right to have a

jury make the ultimate determination of guilt has an impressive

pedigree.”         Gaudin, 515 U.S. at 510.        The jury trial guarantee

embodied      in     the     Sixth   Amendment   “reflect[s]       a     fundamental

decision about the exercise of official power -- a reluctance to

entrust plenary powers over the life and liberty of the citizen

to one judge or to a group of judges.”                 Duncan v. Louisiana, 391

U.S.   145,        156     (1968).    In    addition    to   the       jury   trial’s

historical underpinnings, “[t]he more modern authorities . . .

also confirm[] that the jury’s constitutional responsibility is

not merely to determine the facts, but to apply the law to those

facts and draw the ultimate conclusion of guilt or innocence.”

Gaudin, 515 U.S. at 514 (internal citations omitted).

           The case law in this circuit is consistent with these

authorities.         As we have recognized, after a trial judge has

instructed the jury on the applicable law, “the next two steps

are strictly for the jury: (1) determining the facts as to each

element of the crime, and (2) applying the law as instructed by

the judge to those facts.”              United States v. Johnson, 71 F.3d

                                           13
139,    142    (4th    Cir.   1995).      It    is,   therefore,      an   “error    of

constitutional magnitude” for the trial judge to “instruct[] the

jury as a matter of law that a fact essential to conviction has

been established by the evidence, thus depriving the jury of the

opportunity to make this finding.”                    Id. (internal quotations

omitted); see also United States v. Jinwright, 683 F.3d 471, 479

(4th Cir. 2012) (explaining that “[a] court runs afoul of [the

Fifth    and    Sixth    Amendments’]      protection         when   it    issues    an

instruction that relieves the government of its burden of proof

with respect to an element of a charged offense”).

              In the instant case, we do not hesitate to conclude

that Appellant’s right to have a jury determine his guilt beyond

a reasonable doubt was violated.                Appellant was charged pursuant

to 18 U.S.C. § 1791, which makes it crime for an inmate of a

federal prison to knowingly “make[], possess[], or obtain[], or

attempt[] to make or obtain, a prohibited object.”                         18 U.S.C.

§ 1791(a)(2); United States v. Mobley, 687 F.3d 625, 631 (4th

Cir. 2012) (explaining that “a conviction under § 1791(a)(2)

requires       proof    that     the     inmate       knowingly      possessed      the

prohibited      object”       (emphasis    in     original)).         A    prohibited

objected is, among other things, “a weapon (other than a firearm

or destructive device) . . . .”            Id. § 1791(d)(1)(B).

              Instead    of     asking    the     jury   to    determine      whether

Appellant was guilty, beyond a reasonable doubt, of each element

                                          14
of    the   charged    offense,         the    district       court     instructed     the

members of the jury that they need not concern themselves with

certain elements of the crime.                     With respect to Exhibit 1, the

court     instructed    the      jury    that       the    parties    had   agreed     that

Appellant possessed the object in question, so “the issue as to

Exhibit Number 1 is whether it’s a weapon as I’ve defined a

weapon.”     J.A. 127.        The district court continued, stating that

“the issue . . . as to Exhibit Number 2, is did [Appellant]

possess that.     Everyone agreed that that’s a weapon.”                       Id. 3    In

giving these instructions, the district court invaded the jury’s

province by declaring that certain facts essential to conviction

had been conclusively established.                   See Johnson, 71 F.3d at 142;

Muse, 83 F.3d at 680 (“A court may not by-pass the jury and

enter its own finding that the element has been established.”).

             What is even more troubling is that the jury never

actually returned a guilty verdict.                      In fact, it was never given

the   opportunity      to   do    so.         To    be    sure,   the   district     court

presented the jury with a special verdict form containing only

the following questions: “(1) Do you, the jury, unanimously find

that Government’s Exhibit One is a weapon?”; and “(2) Do you,

      3
       Notably, although the district court told the jury that
the parties had “agreed” that certain facts were established, at
no point during the presentation of the evidence did the
Government provide the jury with any stipulations as to the
existence of these facts in order to meet its burden of proof.



                                              15
the       jury,      unanimously       find       that     [Appellant]       possessed

Government’s Exhibit Two?”              J.A. 136.        The jury simply answered

“yes”     to    each      question,   thereby     making    two    discrete     factual

determinations.              Appellant’s      counsel     even    referred      to    the

verdict form as the jury’s “verdict as a finding of fact.”                            Id.

at 116. 4       The jury neither determined whether the remaining facts

essential       to   conviction       were   established      beyond    a    reasonable

doubt, nor did it find Appellant guilty of the charged offense. 5

                As   we     have   explained,      “the    jury’s      constitutional

responsibility         is    not   merely    to   determine      the   facts,   but    to

apply the law to those facts and draw the ultimate conclusion of

guilt      or     innocence.”         Gaudin,     515    U.S.     at   514   (internal



      4
       Even during oral argument, Appellant’s counsel did not
seem to fully appreciate the constitutional magnitude of the
situation.   Indeed, when the panel asked Appellant’s counsel
whether the jury’s answers to the questions presented on the
verdict form were indicative of Appellant’s guilt or innocence,
Appellant’s counsel replied, “The answering of those questions
clearly indicates . . . that the jury found facts . . . that the
judge could use to make a finding of law as to guilt.” See Oral
Argument at 02:09–02:33, United States v. Ramirez-Castillo, No.
13–4158 (Mar. 18, 2014), available at http://www.ca4.uscourts.
gov/oral-argument/listen-to-oral-arguments.
      5
       Indeed, the special verdict form did not ask the jury to
consider whether Appellant possessed Exhibit 1 or Exhibit 2
knowingly, see Mobley, 687 F.3d at 631 (knowing possession
required), or whether Appellant was a prisoner at the time of
the alleged offense, see 18 U.S.C. § 1791(a)(2) (status as
prisoner required).    Even if the evidence supporting these
elements is overwhelming, a court still cannot direct a verdict
for the government. See Sullivan, 508 U.S. at 277.



                                             16
citations    omitted)    (emphasis        supplied).        Here,    the       district

court erred when it treated the jury as a mere fact finder with

respect to the elements the court considered to be in dispute,

and   thereby    prevented      the   jury     from     making      the       ultimate,

indispensable conclusion of whether Appellant was guilty or not

guilty. 6    The district court did exactly what is prohibited --

it,   in    essence,    directed      a    verdict     of    “guilty”         for     the

Government    and   proceeded    to   sentence       Appellant      to    a    term   of

incarceration.      In doing so, the court violated Appellant’s jury

trial guarantee.        Accordingly, we conclude that the district

court erred.

                                          B.

             Having determined that the district court erred, we

must decide whether the error is plain.                To be “plain,” an error

must be “clear” or “obvious,” Olano, 507 U.S. at 734, “at the

      6
       Although there is “a presumption against special verdicts
in criminal cases,” the decision “to use a special verdict form
is a matter of the district court’s discretion.” United States
v. Udeozor, 515 F.3d 260, 271 (4th Cir. 2008) (internal
quotation marks omitted).     The problem in the instant case,
however, is that the question of Appellant’s guilt was never
presented to the jury. Indeed, had the district court asked the
jury to first determine Appellant’s guilt with respect to
Exhibit 1 and Exhibit 2, and then provided it with a special
verdict form to make certain factual findings, this might be a
different case.    Cf. id. at 270-71 (upholding the use of a
special verdict form where the first page “asked the jury to
determine [defendant’s] guilt on each of the three charged
counts” and “the second page asked the jury to answer ‘yes’ or
‘no’ questions regarding three special findings”).



                                          17
time of appellate consideration,” Henderson, 133 S. Ct. at 1130

(internal      quotation          marks     omitted).        An    error   is    clear    or

obvious “if the settled law of the Supreme Court or this circuit

establishes that an error has occurred.”                      Carthorne, 726 F.3d at

516 (internal quotation marks omitted). In light of the well-

settled       Supreme       Court     decisions         described     above,     including

Sullivan and Gaudin, which unequivocally prohibit a court from

directing a verdict against a defendant and instead require a

jury     to    make     the       requisite       finding    of     “guilty”     beyond    a

reasonable doubt, we conclude the error in this case is plain.

                                                 C.

               Because the district court committed “error” and that

error    is    “plain,”       we     must    next      consider     whether     the    error

affected Appellant’s substantial rights.                          As the Supreme Court

in Olano explained, the phrase “affects substantial rights” “in

most     cases    .     .     .    means     that      the   error    must      have    been

prejudicial” -- that is, “[i]t must have affected the outcome of

the district court proceedings.”                      507 U.S. at 734.       However, the

Court went on to note, “[t]here may be a special category of

forfeited      errors       that     can    be    corrected       regardless     of    their

effect on the outcome.”                Id. at 735.           This language refers to

“structural errors.”              See United States v. Marcus, 560 U.S. 258,

263 (2010); United States v. White, 405 F.3d 208, 221 (4th Cir.

2005).        Although the Supreme Court has expressly reserved the

                                                 18
question of whether structural errors automatically satisfy the

third prong of Olano, see Puckett v. United States, 556 U.S.

129, 140-41 (2009), we have held that such errors necessarily

affect substantial rights, satisfying Olano’s third prong, see

United   States   v.   David,    83     F.3d   638,    647   (4th   Cir.   1996).

Therefore, if the error in the instant case is structural, the

third prong of Olano is satisfied. 7

           A   structural       error     is   a      “defect   affecting      the

framework within which the trial proceeds, rather than simply an

error in the trial process itself.”             Arizona v. Fulminante, 499

U.S. 279, 310 (1991).       Because structural errors are “defects in

the constitution of the trial mechanism,” they “defy analysis by

‘harmless-error’ standards.”            Id. at 309.       Indeed, such errors

“deprive   defendants    of     ‘basic    protections’       without   which   ‘a

criminal trial cannot reliably serve its function as a vehicle

for determination of guilt or innocence . . . and no criminal

punishment may be regarded as fundamentally fair.’”                    Neder v.


     7
       Of course, simply because an error may be structural does
not bring it outside of plain error review.      See Johnson v.
United States, 520 U.S. 461, 466 (1997) (rejecting the argument
that a structural error is outside the scope of Federal Rule of
Criminal Procedure 52(b) and noting that “the seriousness of the
error claimed does not remove consideration of it from the ambit
of the Federal Rules of Criminal Procedure”); United States v.
Robinson, 275 F.3d 371, 383 n.4 (4th Cir. 2001) (explaining that
“it is well settled in this circuit that plain error review
applies to forfeited structural errors”).



                                        19
United States, 527 U.S. 1, 8-9 (1999) (quoting Rose v. Clark,

478   U.S.   570,   577-78   (1986)).          The   Supreme   Court    has   held

particular errors to be structural “only in a very limited class

of cases,” Johnson v. United States, 520 U.S. 461, 468 (1997),

and we have cautioned that “before a court adds a new error to

the list of structural errors . . . , the court must be certain

that the error’s presence would render every such trial unfair,”

Sherman v. Smith, 89 F.3d 1134, 1138 (4th Cir. 1996) (en banc)

(emphasis in original). 8

             In   the   instant   case,      the   district    court   in   effect

directed a guilty verdict for the Government.                  We conclude that

this deprivation of Appellant’s right to have a jury make the

requisite    finding    of   “guilty”     or   “not   guilty”    is    structural

error.    Indeed, the Supreme Court has indicated that such action

by a trial court would amount to structural error:

      [H]armless-error analysis presumably would not apply
      if a court directed a verdict for the prosecution in a
      criminal trial by jury.   We have stated that a trial
      judge is prohibited from entering a judgment of

      8
        The Supreme Court has found structural error in limited
circumstances.   See, e.g., Sullivan v. Louisiana, 508 U.S. 275
(1993) (erroneous reasonable-doubt instruction); Vasquez v.
Hillery, 474 U.S. 254 (1986) (racial discrimination in selection
of grand jury); Waller v. Georgia, 467 U.S. 39 (1984) (violation
of the right to a public trial); McKaskle v. Wiggins, 465 U.S.
168 (1984) (right to self-representation at trial); Gideon v.
Wainwright, 372 U.S. 335 (1963) (total deprivation of counsel);
Tumey v. Ohio, 273 U.S. 510 (1927) (lack of an impartial trial
judge).



                                        20
      conviction or directing the jury to come forward with
      such a verdict . . . regardless of how overwhelmingly
      the evidence may point in that direction.   This rule
      stems from the Sixth Amendment’s clear command to
      afford jury trials in serious criminal cases.   Where
      that right is altogether denied, the State cannot
      contend that the deprivation was harmless because the
      evidence established the defendant’s guilt; the error
      in such a case is that the wrong entity judged the
      defendant guilty.

Rose, 478 U.S. at 578 (internal citations and quotation marks

omitted) (emphases supplied); see also United States v. Kerley,

838 F.2d 932, 937 (7th Cir. 1988) (citing Rose and explaining

that “not only does the harmless-error doctrine not apply when

the error consists in directing a verdict against a criminal

defendant,    it   also    does    not    apply     when    the     judge   directs   a

partial verdict against the defendant by telling the jury that

one   element   of   the    crime    .     .    .   has    been   proved     beyond   a

reasonable doubt, so the jury needn’t worry its collective head

over that one” (internal citations omitted)).

            Appellant was deprived of the right to a jury verdict

of guilty beyond a reasonable doubt.                      This right is a “basic

protectio[n] whose precise effects are unmeasurable, but without

which   a   criminal   trial      cannot       reliably     serve    its    function.”

Sullivan, 508 U.S. at 281.          “The deprivation of that right, with

consequences       that      are         necessarily        unquantifiable        and

indeterminate, unquestionably qualifies as ‘structural error.’”




                                          21
Id. at 281-82.            Accordingly, the district court’s error affected

Appellant’s substantial rights.

                                               D.

               Even     though       Olano’s     three         requirements         have     been

satisfied,       we    retain    discretion         as    to    whether    to    notice       the

error.       See Olano, 507 U.S. at 735-36.                     As we have recognized,

“[t]he       mere   fact    that     a    forfeited       error    affects       substantial

rights does not alone warrant the exercise of our discretion,

‘for otherwise the discretion afforded by Rule 52(b) would be

illusory.’”           United States v. Promise, 255 F.3d 150, 161 (4th

Cir.     2001)      (en     banc)     (quoting         Olano,     507     U.S.      at      737).

Furthermore, we are “not obligated to notice even structural

errors on plain error review.”                   Id.     Therefore, we will exercise

our remedial discretion on plain error review only when “the

error    seriously         affect[s]       the   fairness,        integrity         or     public

reputation of judicial proceedings.”                           Olano, 507 U.S. at 736

(internal quotation marks omitted).                      “Central to this inquiry is

a determination of whether, based on the record in its entirety,

the    proceedings         against       the   accused     resulted       in    a    fair     and

reliable determination of guilt.”                      United States v. Cedelle, 89

F.3d 181, 186 (4th Cir. 1996); see also Promise, 255 F.3d at 162

(“It    is    appropriate       to    refuse     to      notice    a    plain    error       when

evidence of guilt is overwhelming.”).



                                               22
               In the instant case, we will exercise our discretion

to    notice     the    plain      error       because     failure    to     do    so    would

seriously affect the fairness, integrity, or public reputation

of the judiciary.            The Sixth Amendment’s jury trial guarantee,

which includes, “as its most important element, the right to

have    the     jury,    rather         than    the     judge,    reach     the    requisite

finding of ‘guilty,’” is fundamental.                            Sullivan, 508 U.S. at

277.    Here, Appellant did not waive his fundamental right to a

trial by jury, yet no jury has declared Appellant guilty, and he

has    been    sentenced      to    33       months’    incarceration        based      upon    a

judge’s       determination        of    guilt.         Regardless     of    the     evidence

presented against Appellant at trial -- which we acknowledge was

substantial -- we cannot condone this practice.                           See Cedelle, 89

F.3d at 186 n.4 (recognizing that “circumstances may exist where

the    proceedings       contain        an     error    that     seriously    affects      the

fairness, integrity, or public reputation of the judiciary even

though the record demonstrates that the defendant is guilty”).

To do so would undermine the integrity and public reputation of

the judiciary.          Therefore, we exercise our discretion to notice

the error.

                                                IV.

               In    this    case,       we    refuse     to   “hypothesize        a    guilty

verdict       that     was   never        in     fact    rendered.”           Sullivan         v.

Louisiana, 508 U.S. 275, 279 (1993).                      To do so would mean “that

                                                23
the wrong entity [will have] judged [Appellant] guilty” for the

second   time.   Rose   v.   Clark,   478   U.S.    570,   578   (1986).

Accordingly, we vacate Appellant’s conviction and sentence, and

we remand the case to the district court.

                                                   VACATED AND REMANDED




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