                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                 June 21, 2005
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                       Clerk


 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
                                                              No. 03-3003
 v.
                                                          (99-CR-40072-RDR)
                                                               (D. Kan.)
 SALVADOR MARTINEZ,

        Defendant-Appellant.


      ORDER AND JUDGMENT ON PETITION FOR REHEARING EN BANC


Before SEYMOUR, Circuit Judge, MCWILLIAMS, Senior Circuit Judge, and
HARTZ, Circuit Judge.


       Martinez was found guilty of possessing, and conspiring to possess, more than 500

grams of methamphetamine. (500 grams = ½ kilogram). At sentencing, the district court

fixed Martinez’ initial offense level at 36. Based on the Pre-Sentence report, the district

court, over objection, then raised Martinez’ offense level by two levels, holding that “this

case involved at least 76.79 [76,790 grams] kilograms of methamphetamine.” U.S.S.G. 2

D1.1(c)(1). Over further objection, the district court, based on the Pre-Sentence Report,

then enhanced Martinez’ offense level by two more levels, i.e., to 40, because Martinez

possessed a dangerous weapon during the commission of the two crimes he was

convicted of, U.S.S.G. 2 D1.1(b)(1). And finally, over objection, the district court
enhanced Martinez’ offense level by four more levels, i.e., to 44, based on his finding that

Martinez was an “organizer or leader” as defined in U.S.S.G. 3B1.1(a). As indicated,

Martinez objected to all of these enhancements on the ground that the record did not

support any of them. The guideline range for one with an offense level of 44, coupled

with Martinez’ Criminal History Category of I, was life imprisonment, and the district

court, apparently somewhat reluctantly, sentenced him to life imprisonment.1 The

guideline range for one with a total offense level of 36, which was Martinez’ offense

level without the three enhancements, and a Criminal History Category of I, was 188 to

235 months imprisonment.

       On direct appeal, Martinez raised two issues. First, he argued the district court

committed trial error in connection with various evidentiary rulings, all of which required

a reversal of his conviction. Second, he argued that the record did not support the district

court’s two-level enhancement of his offense level for possessing a firearm during the

commission of his offenses, nor did it support his four-level enhancement for being an

organizer or leader. We rejected those arguments and affirmed Martinez’ conviction and

sentence.



       1
         After stating that life imprisonment “is the only sentence available in
Defendant’s guideline range,” the court went on to speak as follows: “And I might say we
have looked to try to find something that we could – by which we could mitigate the
sentence and – and it would stand up. And so far, we have not found anything. I assume
there might be something, might be something that – that can be found, I – I don’t know.
I’m sure your attorney will look for something that will mitigate this – this sentence.”

                                            -2-
       Martinez did not file a timely petition for rehearing. However, by subsequent

order of Court, Martinez was permitted to file an untimely petition for rehearing, en banc.

In that petition, Martinez challenged our holding that the district court did not err in its

ruling on evidentiary matters, and again argued that the evidence did not support his

conviction. There was no challenge, as such, in that petition to Martinez’ sentence.

       Martinez later sought, and received leave of Court, to file a supplemental brief in

support of his petition for rehearing en banc. In that brief, Martinez relied on the then

recently announced Blakely v. Washington, ____ U.S. ____ , 124 S.Ct. 2531 (2004).

Relying on Blakely, counsel argued that Martinez’ sentence of life imprisonment should

be vacated because the sentence was based, in part, on facts which he had not admitted,

nor were the “facts” which the district court relied on established beyond a reasonable

doubt by a jury, and, on the contrary, were “found” by the judge based on a

preponderance of the evidence standard. In that brief, Martinez challenged the factual

predicate for the two-level increase of his base offense level based on the amount of

methamphetamine involved. At the same time, he challenged the two-level enhancement

for possessing a weapon and the four-level enhancement for being an “organizer and a

leader,” contending in each instance that those “facts” were neither admitted nor

established by a jury.

       By order of Court, the government filed a supplemental brief in opposition to

Martinez’ supplemental brief raising the Blakely issue. The government’s position is that


                                             -3-
any error in sentencing was not “plain error” and, in any event, was not “reversible plain

error.” Martinez then filed a reply brief.

       All of the foregoing events occurred prior to United States v. Booker-Fanfan,

   U.S.      , 125 S.Ct. 738 (2005). Although neither party has sought to file a further brief

on the impact of Booker-Fanfan on the instant case, we must, and do, consider Booker-

Fanfan in disposing of the present appeal. See United States v. Booker-Fanfan, 125 S.Ct.

at 768-69.

       Under the law as it existed at the time of sentencing, the district court committed

no error in sentencing Martinez to life imprisonment. However, we now know that the

district court erred in sentencing Martinez to life imprisonment. Such is in violation of

Booker-Fanfan. Where there has been a change in the law occurring between the time the

judgment and sentence were imposed in the district court, but before we have concluded

the appellate process, we apply the law as it exists at the time of our writing. Johnson v.

United States, 520 U.S. 461, 468 (1997). Applying then the law as it presently exists, we

now know that the district court erred. The question then is whether we will recognize

and correct that error, even though the matter was not raised in the district court. In such

circumstances we first look at Fed. R. Crim. P. 52.

       Rule 52(a) states that any district court error that does not affect substantial rights

must be disregarded on appeal. There is no suggestion that the error in this case is

“harmless error.” Martinez was “harmed,” i.e., he received a sentence of imprisonment


                                             -4-
for life, which sentence was in violation of the his Sixth Amendment rights.

       Rule 52(b) states that plain error that affects substantial rights may be considered

by us on appeal even though, for one reason or another, it was not brought to the district

court’s attention. 52(b) seems to apply to our case.

       As indicated, the general rule is that a matter not raised in the district court may

not be raised on appeal. If the district court, and counsel, overlooked law existing at the

time when the case was in the district court, we may, however, on appeal, consider such

under Fed. R. Crim. P. 52(b). It would appear that the same rule applies where, even

though under the then existing law, the district court committed no error, the law is

changed in the interval between when the case left the district court and before we had

made a final review of the case. In the case of a “change in law,” we also must first find

“plain error.” Rule 52(b) requires a further finding that there be “plain error that affects

substantial rights.” To satisfy that requirement “usually means that the error must have

affected the outcome of the district court proceedings.” United States v. Cotton, 535 U.S.

625, 632 (2002). Courts have added an additional requirement that not only must there be

a finding that “substantial rights” were violated, but also there must be a further finding

that such violation “seriously affects the fairness, or integrity, or public reputation of

judicial proceedings.” In this connection, “an error may ‘seriously affect the fairness,

integrity or public reputation of judicial proceedings’ independent of the defendant’s

innocence.” United States v. Olano, 507 U.S. 725, 736-7 (1993). All of which has


                                             -5-
culminated in a so-called “four-prong” test to establish “plain error.”

       We hold that Martinez has met the so-called four-prong test, i.e., he has shown

“error,” that was “plain” which affected his substantial rights, i.e., a violation of

Martinez’ Sixth Amendment rights at sentencing involves a substantial right, which we

believe also affects the fairness and integrity of the judicial process and would seriously

affect the “public reputation of the judicial proceedings.” And, we would add, for us, in

such circumstances, to take no corrective action would further demean the judicial

process. Thus, we conclude that Martinez has met the four-prong test.2

       Accordingly, the mandate which heretofore issued on June 7, 2004, is recalled, and

the petition for rehearing en banc is granted in part, and denied in part. That part of the

petition seeking to reverse Martinez’ conviction is denied, and, in accordance therewith,

we reaffirm our earlier affirmance of Martinez’ conviction. Moreover, that part of the

petition, more particularly the supplemental brief filed in support of Martinez’ petition for

rehearing en banc, which was based on Blakely, is also denied. However, Martinez’

sentence is vacated in light of Booker-Fanfan, and in accord therewith, we remand the

case to the district court for resentencing, with direction that the district court, after full

hearing, impose a sentence consistent with Booker-Fanfan, as well as the views herein




       2
        The so-called four-prong test is applied “less rigidly where reviewing a potential
constitutional error.” United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005). See
also United States v. James, 257 F.3d 1173, 1182 (10th Cir. 2001).

                                               -6-
expressed.3

       There remains a disposition of Appellant’s petition for rehearing en banc. In this

regard, Appellant’s petition for rehearing en banc was circulated to all the active judges

of the court who are not recused. No judge having called for a poll, the petition for

rehearing en banc is denied. The mandate shall be re-issued forthwith.



                                   ENTERED FOR THE COURT,



                                   ROBERT H. MCWILLIAMS
                                   Senior Circuit Judge




       3
        We believe our disposition of the present appeal comports with U.S. v Dazey. We
recognize, as the Court recognized in Dazey, that Rule 52(b) is couched in non-mandatory
language, i.e., the district court “may” consider plain error. However, under the facts of
this case, for a district court not to consider plain error would be a clear abuse of
discretion. Martinez is presently under a sentence for life imprisonment, which under
Booker-Fanfan was the result of constitutional error. And, of course, under Booker-
Fanfan, the USSG are only advisory, and not mandatory.

                                            -7-
