                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-28-2005

USA v. Scott
Precedential or Non-Precedential: Precedential

Docket No. 03-1160




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                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT



         Nos. 02-4521, 03-1130 & 03-1160



         UNITED STATES OF AMERICA

                         v.

                 KEVIN DAVIS,
                          Appellant at No. 02-4521
                KEVIN A. MINNIS,
                          Appellant at No. 03-1130
                REGINAL SCOTT,
                          Appellant at No. 03-1160



    Sur Denial of Petition for Rehearing En Banc
and Motion to Defer Disposition of All Pending Direct
 Criminal Appeals Presenting Booker Claims Pending
  Resolution of the Petition for Rehearing En Banc
         (D.C. Criminal Nos. 02-cr-00106-1,
           02-cr-00106-3, 02-cr-00106-2)
            Before: SCIRICA, Chief Judge,
       SLOVITER, NYGAARD, ALITO, ROTH,
    McKEE, RENDELL, BARRY, AMBRO, FUENTES,
        SMITH, FISHER, VAN ANTWERPEN,
             and COWEN, Circuit Judges

                    (Filed: April 28, 2005)



             OPINION SUR DENIAL OF THE
          PETITION FOR REHEARING EN BANC
             AND THE MOTION TO DEFER



SCIRICA, Chief Judge.

       The government has moved to defer disposition of all
sentencing appeals pending resolution of its petition for
rehearing en banc in this case. We have denied the petition for
rehearing and will deny the motion as well.
       The Supreme Court’s decision in United States v. Booker
brought about sweeping changes in the realm of federal
sentencing. 125 S. Ct. 738 (2005). Drawing upon its reasoning
in Jones, Apprendi, and Blakely,1 the Booker majority held that


    1
     Jones v. United States, 526 U.S. 227 (1999) (construing
provisions of federal carjacking statute to set forth additional

                               2
mandatory enhancement of a sentence under the Guidelines,
based on facts found by the court alone, violates the Sixth
Amendment. Booker, 125 S. Ct. at 756. To remedy this
constitutional infirmity, the Court excised that provision of the
statute making application of the Guidelines mandatory. Id. at
764. In the aftermath of Booker, the Federal Sentencing
Guidelines– once a mandatory regime circumscribing the
discretion of district court judges– are “effectively advisory.”
Id. at 757. Under the post-Booker sentencing framework,
District Courts will consider the applicable advisory Guidelines
range in addition to factors set forth in 18 U.S.C. § 3553(a).
See Booker, 125 S. Ct. at 764-65. Booker is applicable to all
cases on direct review. Id. at 769.
      Direct appeals of sentences imposed before Booker
generally present two kinds of claims: first, defendants whose
sentences were enhanced by judicial factfinding raise Sixth
Amendment claims; second, defendants who contend the


elements of offense, rather than sentencing considerations, so
that facts triggering such provisions must be charged in
indictment and proven beyond a reasonable doubt); Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of
a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt.”); Blakely v.
Washington, 542 U.S.---, 124 S. Ct. 2531 (2004) (extending
Apprendi to Washington’s state sentencing scheme).

                                3
District Courts erroneously treated the Guidelines as mandatory
rather than advisory.
        In our review of pre-Booker cases, many of the direct
appeals call for a plain error analysis because defendants did not
raise the sentencing issue before the District Court. See Fed. R.
Crim. P. 52(b).2 Where a defendant demonstrates “error” that
is “plain,” and that “affects substantial rights,” we may correct
that error where the “fairness, integrity, or public reputation of
judicial proceedings” was affected. United States v. Evans, 155
F.3d 245, 251 (3d Cir. 1998). As explained in Evans, an error
will affect substantial rights where it is prejudicial and “affected
the outcome of the district court proceedings.” Id. (quoting
United States v. Olano, 507 U.S. 725, 734 (1993)).
       Where the District Court imposed a sentence greater than
the maximum authorized by the facts found by the jury alone,
the outcome of sentencing was altered to the defendant’s
detriment. Mandatory enhancement of a sentence in violation
of the Sixth Amendment is prejudicial and affects the
substantial rights of the defendant. As we have noted,
“imposing a sentence not authorized by law seriously affects the
fairness, integrity, and reputation of the proceedings .” Evans,
155 F.3d at 252 (citing United States v. Dozier, 119 F.3d 239,
244-45 (3d Cir. 1997)). In cases where a defendant’s sentence

    2
      Where a defendant preserved a Booker claim before the
district court, we will review for harmless error under Fed. R.
Crim. P. 52(a).

                                 4
was enhanced based on facts neither admitted to nor found by
a jury, therefore, the defendant can demonstrate plain error and
may be entitled to resentencing.3 See United States v. Hughes,

    3
       Prior to Booker, we addressed a similar issue in our en
banc opinion in United States v. Vasquez, 271 F.3d 93 (3d Cir.
2001). In Vasquez, the defendant was charged with drug
conspiracy, obstruction of justice, and witness tampering.
Vasquez was convicted of conspiracy to distribute and possess
cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A),
which prescribed a maximum sentence of 20 years. Because of
three judicially-found facts– drug quantity, his leadership role,
and attempted obstruction of justice– the District Judge
sentenced him to more than 24 years’ imprisonment.
         On appeal we discussed the effect of the judicially-
determined drug quantity. We found Vasquez’s sentence
erroneous under Apprendi because the “judge, rather than the
jury, determined drug quantity and then sentenced Vasquez to .
. . a term in excess of his . . . statutory maximum.” 271 F.3d at
99. Despite the District Court’s error, however, we found that
Vasquez failed to show an effect on his substantial rights
because the drug quantity was never in dispute. The quantity of
drugs involved was established at trial and substantiated by
scientific evidence. Vasquez never contested the amount.
Accordingly, we held that Vasquez’s sentence would have been
the same if the government had submitted drug quantity for a
jury determination, that is, failure to submit this question to the
jury, therefore– while an Apprendi violation– had no actual

                                5
401 F.3d 540 (4th Cir. 2005) (finding plain error and remanding
for resentencing because defendant– who was sentenced to 46
months due to judicial factfinding where the jury verdict
authorized only a 12-month sentence– demonstrated that his
substantial rights were affected).
        Similarly, a defendant’s substantial rights may have been
affected where the District Court erred by treating the
Guidelines as mandatory rather than advisory. At this stage, we
cannot ascertain whether the District Court would have imposed
a greater or lesser sentence under an advisory framework. But
the mandatory nature of the Guidelines controlled the District
Court’s analysis. Because the sentencing calculus was
governed by a Guidelines framework erroneously believed to be
mandatory, the outcome of each sentencing hearing conducted
under this framework was necessarily affected. Although plain
error jurisprudence generally places the burden on an appellant
to demonstrate specific prejudice flowing from the District
Court’s error, in this context– where mandatory sentencing was
governed by an erroneous scheme– prejudice can be presumed.


effect on defendant’s sentence.
        We did not have the benefit of Booker when deciding
Vasquez. Nor did we hold that an Apprendi violation at
sentencing will never affect a defendant’s substantial rights;
rather, we held the substantial rights of the individual defendant
in that case were not affected.


                                6
See Olano, 507 U.S. at 735 (noting that certain types of error
should, on plain error review, “be presumed prejudicial if the
defendant cannot make a specific showing of prejudice”);
United States v. Adams, 252 F.3d 276, 287 (3d Cir. 2001)
(“Given the nature of the right [of allocution] and the difficulty
of proving prejudice from its violation, we conclude that we
should presume prejudice when a defendant shows a violation
of the right and the opportunity for such a violation to have
played a role in the district court's sentencing decision.”)
(emphasis in original); see also United States v. Barnett, 398
F.3d 516, 528 (6th Cir. 2005) (presuming prejudice where “it
would be exceedingly difficult” for defendant raising Booker
claim to show that the district court’s failure to treat the
Sentencing Guidelines as advisory affected his sentence).
       Furthermore, as noted by the Court of Appeals for the
Sixth Circuit, “[w]e would be usurping the discretionary power
granted to the district courts by Booker if we were to assume
that the district court would have given [defendant] the same
sentence post-Booker.” United States v. Oliver, 397 F.3d 369,
380 n.3 (6th Cir. 2005). Failure to remand for resentencing,
therefore, could adversely affect the fairness and integrity of the
proceedings. Accordingly, defendants sentenced under the
previously mandatory regime whose sentences are being
challenged on direct appeal may be able to demonstrate plain




                                7
error and prejudice.      We will remand such cases for
resentencing.4

  4
    See Barnett, 398 F.3d at 516. In Barnett, defendant received
a sentence within the Guidelines range, did not object before the
district court, but challenged his sentence on appeal in light of
Booker. Specifically, he argued that the district court’s
mandatory application of the Sentencing Guidelines was plain
error. The Court of Appeals for the Sixth Circuit found plain
error, holding that Barnett’s “is an appropriate case in which to
presume prejudice” because the mandatory nature of the
Guidelines affected the district court’s sentencing calculus,
because it would be “exceedingly difficult” for a defendant to
demonstrate conclusively that the district court’s error affected
the outcome of the proceeding, and because “we simply do not
know how the district court could have sentenced.” Id. at 527-
29 (quotations omitted). The Barnett Court concluded:
        Instead of speculating as to the district court’s
        intentions in the pre-Booker world, and trying to
        apply those intentions to predict the same court’s
        sentence under the post-Booker scheme, we are
        convinced that the most prudent course of action
        in this case is to presume prejudice given the
        distinct possibility that the district court would
        have imposed a lower sentence under the new
        post-Booker framework and the onerous burden
        he would face in attempting to establish that the
        sentencing court would have imposed such a

                               8
        Booker applies to all cases pending on direct review. By
remanding, we ensure that each defendant to whom Booker
applies is sentenced accordingly. This approach results in
uniform treatment of post-Booker defendants on direct appeal,
fostering certainty in the administration of justice and efficient
use of judicial resources. Moreover, as the Court of Appeals for
the Second Circuit has noted, “correction of error in the context
of sentencing does not precipitate . . . burdensome and often
lengthy consequence[s]” on remand. United States v. Crosby,
397 F.3d 103, 117 (2d Cir. 2005).
          In this opinion, we express no view on waiver or
alternative sentences. We will continue to review each appeal
individually. Appellants have been directed to state whether
they wish to challenge their sentence under Booker. For those
who do not, we consider the appeal on its merits. Where an
appellant raises a Booker claim and establishes plain error,
however, we will decide claims of error related to the
conviction, vacate the sentence, and remand for consideration
of the appropriate sentence by the District Court in the first
instance. Accordingly, the Government’s Motion to Defer
Disposition of All Pending Criminal Appeals Presenting Booker
Claims Pending Resolution of the Government’s Petition for
Rehearing En Banc is denied.




       sentence.

                                9
