     Case: 09-10968   Document: 00511536314   Page: 1   Date Filed: 07/11/2011




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                  July 11, 2011

                                 No. 09-10968                     Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff - Appellee
v.

JOSEPH MUDEKUNYE; FABIAN MUYABA

                                           Defendants - Appellants



                 Appeal from the United States District Court
                      for the Northern District of Texas



Before BARKSDALE, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:
        Fabian Muyaba, Joseph Mudekunye, and three co-defendants were
charged in a 39-count indictment stemming from their tax-fraud conspiracy.
Muyaba, Mudekunye, and one co-defendant were convicted in a joint jury trial.
Muyaba challenges the sufficiency of the evidence to support his convictions; the
district court’s applying two Sentencing Guideline enhancements; and its
ordering part of his sentence to run consecutively. Mudekunye challenges its
failure to sever his trial from Muyaba’s; and his sentence as being procedurally
unreasonable. We AFFIRM in part and VACATE and REMAND in part.
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                                        I.
        From 2004 to 2007, Mudekunye and Muyaba worked as tax preparers at
Reliable Tax Services in Dallas, Texas, where they participated in a conspiracy
to file fraudulent tax returns. In 2007, Muyaba began operating Efficient Tax
Service, where he and Mudekunye prepared tax returns in a similar, fraudulent
manner.
        At both Reliable and Efficient, Mudekunye and Muyaba falsified tax
returns in several ways, inter alia: changing their clients’ filing status (“single”
to “head of household”); and claiming losses for non-existent businesses. Upon
receiving their tax refunds, the clients were charged sizeable and misleading
fees.
        To avoid IRS detection, Reliable submitted returns using a different
Electronic Filer Identification Number each year. Defendants also hid their
fraudulent operations by denying their clients copies of their returns, despite
repeated requests. Consequently, until they were contacted by the IRS, many
clients were unaware their tax returns contained false information.
        Following a Government investigation, Mudekunye, Muyaba, and three
co-defendants were charged in the 39-count indictment. All were charged with
conspiracy to prepare fraudulent tax returns, in violation of 18 U.S.C. § 371.
Mudekunye and Muyaba were each charged with multiple counts of: aiding and
assisting in the preparation of fraudulent tax returns, in violation of 26 U.S.C.
§ 7206(2); aiding and abetting, in violation of 18 U.S.C. § 2 and 26 U.S.C.
§ 7206(2); and identity theft, in violation of 18 U.S.C. § 1028(a)(7) and (c)(3)(A).
        At the conclusion of the Government’s case-in-chief, Muyaba’s motion for
judgment of acquittal was granted for three counts. A jury found Muyaba guilty
on seven of ten counts; Mudekunye, six of 12.
        Muyaba was sentenced, inter alia, to 120 months’ imprisonment: 60 on
count 1 (conspiracy); a consecutive 24 on count 33 (preparation of fraudulent tax

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forms); and 36 each on counts 27-28 and 30-32 (same offense), to run
concurrently with each other, but consecutive to the sentences for counts 1 and
33. Mudekunye received, inter alia, 97 months’ imprisonment: 60 on count 1
(conspiracy); 36 on counts 7, 9, and 25 (preparation of fraudulent tax forms); and
97 on counts 35-36 (identity theft), to run concurrently.
                                       II.
      Muyaba’s, then Mudekunye’s, claims are addressed. Analysis of one or
more claims for each is restricted because their review is only for plain error.
                                        A.
      Muyaba presents two challenges to his convictions; four, to his sentence.
Each fails.
                                        1.
      Muyaba preserved his sufficiency challenge by moving, pursuant to
Federal Rule of Criminal Procedure 29(a), for judgment of acquittal at the close
of both the Government’s case-in-chief and all the evidence. Accordingly, review
is de novo. E.g., United States v. Simmons, 470 F.3d 1115, 1120 (5th Cir. 2006).
His “verdict will be affirmed if a reasonable trier of fact could conclude from the
evidence that the elements of the offense were established beyond a reasonable
doubt”. Id. (citation and internal quotation marks omitted). All evidence is
viewed, and reasonable inferences drawn, in the light most favorable to the
verdict; “we evaluate neither the weight of the evidence nor the credibility of the
witnesses”. Id. “‘The evidence need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt,
and the jury is free to choose among reasonable constructions of the evidence.’”
United States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999) (quoting United
States v. Burton, 126 F.3d 666, 669-70 (5th Cir. 1997)).




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                                      a.
      For his sufficiency challenge to his conspiracy conviction, Muyaba
contends: the evidence did not show he worked at Reliable; and, therefore, the
Government did not establish his involvement in the tax-fraud conspiracy there.
The Government had to prove beyond a reasonable doubt that “defendant either
positively or tacitly agreed with another person to accomplish a common and
unlawful plan, and that during the existence of the conspiracy, one of the
conspirators knowingly committed an overt act in furtherance of the conspiracy”.
United States v. Bourgeois, 950 F.2d 980, 983 (5th Cir. 1992). The agreement
need not be explicit, and “may be inferred from a concert of action”. United
States v. Mann, 161 F.3d 840, 847 (5th Cir. 1998) (citation and internal
quotation marks omitted).
      The evidence established that Muyaba worked as a tax preparer at
Reliable; had a cubicle there; was engaged by many clients when they visited it
for tax-filing help; and was one of several of its tax preparers who fraudulently
prepared returns. A rational trier of fact could find, beyond a reasonable doubt,
that Muyaba was part of the conspiracy.
                                       b.
      Muyaba also makes a sufficiency challenge to his conviction for aiding and
assisting in the preparation of false and fraudulent tax forms at Reliable. The
Government had to prove, beyond a reasonable doubt, that Muyaba “willfully
aided, assisted, counseled, or advised another in the preparation or presentation
under the internal revenue laws of a document that is fraudulent or false as to
any material matter”. United States v. Clark, 577 F.3d 273, 285 (5th Cir. 2009)
(citation and internal quotation marks omitted).
      A reasonable jury could have found Muyaba guilty on those counts.
Evidence established that, while working at Reliable (and Efficient), Muyaba
presented himself as a tax-return preparer; discussed tax returns and refunds

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with his clients; received tax-preparation information from them; and claimed
business losses, credits, and deductions on their returns that were neither
substantiated nor requested.
      Muyaba insists some of the trial testimony was “incredible and unworthy
of belief”. As noted, the evidence’s being sufficient does not require the removal
of all doubt, e.g., Anderson, 174 F.3d at 522; and, it is not our role to evaluate
witness credibility—that, of course, is for the jury, Simmons, 470 F.3d at 1120.
Moreover, to the extent Muyaba contends there was a lack of evidence showing
he filed the fraudulent returns, he misstates the elements for violation of 26
U.S.C. § 7206(2): that defendant must file the return is not one of them. See
Clark, 577 F.3d at 285.
                                         2.
      In challenging two enhancements to his offense level, Muyaba contends:
the one for leader-or-organizer does not apply to him; and the one for
obstruction-of-justice was applied incorrectly because he did not commit perjury
at trial. The district court’s findings of fact for sentencing are reviewed for clear
error; its application and interpretation of the Guidelines, de novo. United
States v. Creech, 408 F.3d 264, 270 n.2 (5th Cir. 2005). Of course, the leader-or-
organizer and obstruction-of-justice enhancements involve factual findings,
reviewed for clear error; however, “[a] ruling that . . . findings permit an
obstruction-of-justice enhancement is a question of law, reviewed de novo”.
United States v. Miller, 607 F.3d 144, 148 (5th Cir. 2010) (citations and internal
quotation marks omitted). “A factual finding is not clearly erroneous if it is
plausible in light of the record read as a whole.” United States v. Valencia, 44
F.3d 269, 272 (5th Cir. 1995).




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                                        a.
      Guideline § 3B1.1(c) provides: “If the defendant was an organizer, leader,
manager, or supervisor in any criminal activity . . . , increase [his offense level]
by 2 levels”. Its commentary states:
            To qualify for an adjustment under this section, the
            defendant must have been the organizer, leader,
            manager, or supervisor of one or more other
            participants. An upward departure may be warranted,
            however, in the case of a defendant who did not
            organize, lead, manage, or supervise another
            participant, but who nevertheless exercised
            management responsibility over the property, assets, or
            activities of a criminal organization.
U.S.S.G. § 3B1.1 cmt. n.2.
      The court applied the two-level enhancement based upon finding that
Muyaba “was an organizer and a leader in the Efficient Tax Service”, serving as
its owner, and the employer of at least one other person, Mudekunye. In
contesting this enhancement based upon his role at Efficient, although he is
silent about his work there, Muyaba maintains the district court clearly erred
because “he didn’t play as big a part in Reliable as the others”.              The
enhancement was based upon Muyaba’s role at Efficient, not Reliable.
                                        b.
      In challenging his obstruction-of-justice enhancement for perjury at trial,
Muyaba maintains: his testimony about Amber Redden was his “belief”, which
is insufficient to be classified as a lie; and evidence of Muyaba’s wife having
removed his office documents following his arrest is insufficient to show he lied
about not having access to his business records. The Guideline provides:
            If (A) the defendant willfully obstructed or impeded, or
            attempted to obstruct or impede, the administration of
            justice with respect to the investigation, prosecution, or
            sentencing of the instant offense of conviction, and (B)
            the obstructive conduct related to (i) the defendant’s

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                offense of conviction and any relevant conduct; or (ii) a
                closely related offense, increase the offense level by 2
                levels.
U.S.S.G. § 3C1.1. Additionally, “the court should be cognizant that inaccurate
testimony or statements sometimes may result from confusion, mistake, or
faulty memory and, thus, not all inaccurate testimony or statements necessarily
reflect a willful attempt to obstruct justice”. U.S.S.G. § 3C1.1 cmt. n.2; see also
United States v. Greer, 158 F.3d 228, 239 (5th Cir. 1998) (noting courts “must
carefully consider whether the defendant has engaged in [obstructive] behavior
in a conscious and deliberate attempt to obstruct or impede the administration
of justice”).
       Muyaba testified he had no access, post-arrest, to documents at Efficient;
however, other evidence showed his testimony was false because his wife had
then retrieved those documents. Additionally, Muyaba testified that he believed
one of his clients, Redden, had employed Muyaba’s brother in Missouri to
complete her return. Redden’s testimony, however, was that she did not know
Muyaba’s brother, and had watched Muyaba complete it.
       In addition, there were manifest inconsistencies in other portions of his
testimony. In applying the enhancement, the court adopted the presentence
investigation report’s (PSR) discussion of Muyaba’s inconsistent trial testimony.
For example, he testified he never worked for Reliable, even though, as discussed
supra, significant evidence established that he did.           Muyaba also denied
completing and signing fraudulent returns; however, that testimony conflicts
with extensive evidence of fraudulent claims on returns he completed and
signed. The court ruled: the inconsistencies in Muyaba’s testimony were
“material to whether he was guilty . . . of the counts . . . against him, and . . . his
statements on these issues [did] not result from confusion, mistake, or faulty
memory, but [were] instead a willful and deliberate attempt to obstruct justice”.



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                                         3.
      Muyaba also contends the district court erred in ordering that his sentence
for count 33 be consecutive to those for counts 27-28 and 30-32. He maintains:
the sentences for each count should have been grouped and ordered to run
concurrently because, under Guideline § 3D1.2, those counts charged him for the
same offense, violations of 26 U.S.C. § 7206(2) that were for “substantially the
same harm”.
      Because Muyaba did not so object at sentencing, review is only for plain
error. E.g., United States v. Ronquillo, 508 F.3d 744, 748 (5th Cir. 2007). For
reversible plain error, defendant must show a clear or obvious error that affects
his substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
If he does so, our court has discretion to correct that error, and generally will do
so only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
                                        a.
      The PSR grouped all counts as “Closely Related”, including the six counts
for violations of § 7206(2) (27-28 and 30-33). Because one count of conviction was
for conspiracy to prepare fraudulent tax returns, Muyaba’s offense level was
based on the total amount of tax loss attributed to his offenses. See U.S.S.G.
§§ 2T1.9(a)(1), 2T1.1(a)(1), 2T4.1 (Tax Table). That loss amount, combined with
the enhancements discussed supra, resulted in Muyaba’s having an advisory
Guideline sentencing range of 97-121 months. In challenging his sentence,
Muyaba fails to account for the mandatory requirements of Guideline § 5G1.2,
which provides, inter alia:
            If the sentence imposed on the count carrying the
            highest statutory maximum is less than the total
            punishment, then the sentence imposed on one or more
            of the other counts shall run consecutively, but only to
            the extent necessary to produce a combined sentence
            equal to the total punishment. In all other respects,

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              sentences on all counts shall run concurrently, except
              to the extent otherwise required by law.
U.S.S.G. § 5G1.2(d) (emphasis added).
      For Muyaba, the count carrying the highest statutory maximum sentence
was count 1 (conspiracy to prepare fraudulent tax returns), with a statutory
maximum of 60 months’ imprisonment. Each of the other counts (fraudulent-
tax-return preparation) had a statutory maximum of 36 months. Therefore, if
the court had imposed concurrent sentences for all counts of conviction,
Muyaba’s total sentence would have been 60 months’ imprisonment, well below
his advisory range of 97 to 121 months, and in contravention of Guideline
§ 5G1.2(d).
                                        b.
      Muyaba also claims ineffective assistance of counsel (IAC) because: his
counsel did not object at sentencing to the sentence for count 33 being
consecutive (deficient performance); and Muyaba was prejudiced because he
accordingly received 24 additional months of imprisonment. E.g., Strickland v.
Washington, 466 U.S. 668, 687 (1984).
      We “resolve [IAC] claims . . . on direct appeal only in rare cases where the
record allow[s] us to evaluate fairly the merits of the claim”. United States v.
Higdon, 832 F.2d 312, 314 (5th Cir.1987). This is one of those instances because
the record is adequately developed.          Because, as discussed supra, the
consecutive-sentence claim has no merit, the requisite deficient performance
does not exist.
                                       B.
      Mudekunye claims: his trial should have been severed from Muyaba’s;
and, on two grounds, his sentence was procedurally unreasonable.




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                                         1.
      Although Mudekunye moved to sever prior to trial, he did so only with
respect to co-defendant Nichelle Henson not with respect to Muyaba.
Nevertheless, he contends the district court erred by not severing his trial from
Muyaba’s, and claims resulting prejudice. Because this issue is raised for the
first time on appeal, review is only for plain error. E.g., United States v. Misher,
99 F.3d 664, 669 (5th Cir. 1996).
      Severance vel non is within the discretion of the district court: it should
be granted “only if there is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants”, and limiting instructions to the jury
will often cure any prejudice resulting from a joint trial. Zafiro v. United States,
506 U.S. 534, 539 (1993). Mudekunye must show “specific and compelling
prejudice against which the district court could not provide adequate protection,
and that this prejudice resulted in an unfair trial”. United States v. Stouffer, 986
F.2d 916, 924 (5th Cir. 1993). Mudekunye fails to do so; instead, he complains
generally.
      As discussed, a generalized showing of prejudice is insufficient. E.g.,
United States v. Solis, 299 F.3d 420, 441 n.46 (5th Cir. 2002) (“severance issues
are fact-specific, requiring a showing of specific compelling prejudice” (citation
and internal quotation marks omitted)); Stouffer, 986 F.2d at 924. In addition,
substantial evidence directly implicating Mudekunye in the conspiracy removes
any concern that not severing subjected him to “manifest injustice”. United
States v. Carreon, 11 F.3d 1225, 1240 (5th Cir. 1994). Last, the instructions
alleviated any risk of prejudice arising from a joint trial. See United States v.
Bernard, 299 F.3d 467, 476 (5th Cir. 2002). The jury was instructed to consider
each defendant’s charges separately, and this court must presume that it heard,
understood, and followed those instructions. Richardson v. Marsh, 481 U.S. 200,
211 (1987). Defendants’ being acquitted on some charges reflects the jury was

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able to consider, and weigh separately, each of the charges. United States v.
Ellender, 947 F.2d 748, 755 (5th Cir. 1991).
                                        2.
      Mudekunye contends his sentence was procedurally unreasonable because
the court erroneously applied two sentencing enhancements for the same
conduct. Because Mudekunye failed to raise this objection below, plain error
review applies. See United States v. Hernandez–Martinez, 485 F.3d 270, 272–73
(5th Cir. 2007).
                                       a.
      Under the Guidelines, if a § 2T1.4(b)(1) enhancement is applied at
sentencing, a § 3B1.3 enhancement should not be. U.S.S.G. § 2T1.4(b)(1) cmt.
n.2. The Government concedes that the district court erred in applying both
enhancements and that this error was clear. The application of the § 3B1.3
enhancement resulted in a total offense level of 28. Combined with Mudekunye’s
criminal history category of I, the application of the enhancement resulted in an
advisory sentencing range of 78 to 97 months. The correct Guidelines range is
63 to 78 months. See U.S.S.G. Ch. 5 Pt. A (Sentencing Table). The incorrect
Guidelines range (78–97 months) and the correct Guidelines range (63–78
months) overlap by one month as the top of the correct range and the bottom of
the incorrect range are the same: 78 months.
                                       b.
      To satisfy the third prong of plain-error review, the error must have
affected the defendant’s substantial rights, which ordinarily requires the
defendant to show that the error “affected the outcome of the district court
proceedings.” United States v. John, 597 F.3d 263, 284 (5th Cir. 2010) (quotation
omitted). A sentencing error affects a defendant’s substantial rights if he can
show a reasonable probability that, but for the district court’s misapplication of
the Guidelines, he would have received a lesser sentence. United States v.

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Blocker, 612 F.3d 413, 416-17 (5th Cir. 2010). Our precedent is clear that absent
additional evidence, a defendant has shown a reasonable probability that he
would have received a lesser sentence when (1) the district court mistakenly
calculates the wrong Guidelines range, (2) the incorrect range is significantly
higher than the true Guidelines range, and (3) the defendant is sentenced within
the incorrect range. See, e.g., John, 597 F.3d at 284–85 (holding that an imposed
sentence affects a defendant’s substantial rights when it significantly exceeds
the high- and low-ends of applicable Guidelines range); United States v. Jasso,
587 F.3d 706, 713 n.10 (5th Cir. 2009) (“In cases where this Court has found
plain error, the gap between the correct and erroneous sentences has been
sufficient enough that there was an apparent, reasonable probability that the
defendant would have received a lesser sentence but for the district court’s
error.”) (collecting cases).
      There is a second line of precedent relevant to this case. These cases hold
that when the correct and incorrect ranges overlap and the defendant is
sentenced within the overlap, “we do not assume, in the absence of additional
evidence, that the sentence affects a defendant’s substantial rights.” United
Blocker, 612 F.3d at 416. This default (or presumption) is undeniably sensible,
because the defendant is still sentenced within the applicable Guidelines range.
      Mudekunye’s case does not neatly fall into either line of precedent. The
correct and incorrect sentencing ranges overlap by one month, but he was
sentenced well outside the one month overlap, 19 months above the correct
range. No published cases have addressed the same fact scenario, but in an
unpublished case, United States v. Carrizales–Jaramillo, we remanded for
resentencing in a similar situation. 303 F. App’x 215, 217 (5th Cir. 2008) (per
curiam) (unpublished) (vacating a 31-month imposed sentence based on an
incorrect Guidelines calculation of 30–37 months rather than 24–30 months).
While this case is not binding, it is persuasive and supports the conclusion that

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the reasoning applicable to our “no overlap” line of cases best applies here. That
is, where it is “not apparent from the record that [the defendant] would have
received an above-Guidelines sentence,” the imposed sentence affects the
defendant’s substantial rights. John, 597 F.3d at 285 (holding that a sentence
21 months above the high end and 38 months above the low end of the correct
Guidelines range violated the defendant’s substantial rights).
      It is not apparent from the record that Mudekunye would have received
an above-Guidelines sentence of 97 months if the district court had calculated
the Guidelines correctly. See John, 587 F.3d at 285. The sentencing judge stated
that Mudekunye’s “sentence happens to be within the Guideline range” and that
it “is the appropriate sentence in this case given all of the facts and
circumstances.” The government argues that these phrases indicate that the
court would have imposed the same sentence regardless of the correct Guidelines
range. We cannot arrive at the same conclusion. The court’s comments are vague
and ambiguous, in contrast to other cases in which we have held that the court’s
statements eliminate any reasonable probability of a lesser sentence. In these
cases, the sentencing court stated explicitly and unequivocally that the imposed
sentence was the correct sentence regardless of the applicable Guideline ranges.
See United States v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008) (finding that
district court imposed a valid alternative non-Guidelines sentence when it
considered the correct and incorrect ranges and stated: “I believe that I have
calculated the guidelines correctly, but even if I am wrong about the guidelines,
this is the sentence that I would impose in any event.”); United States v.
Lemus-Gonzalez, 563 F.3d 88, 94 (5th Cir. 2009) (finding no reasonable
probability of a lesser sentence where the district court considered both the
correct and incorrect ranges and stated that it would have imposed the same
sentence in any event). The record does not establish that Mudekunye would



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have received an above-Guidelines sentence of 97 months if the district court had
calculated the Guidelines correctly.
      In light of the significant disparity between Mudekunye’s sentence and the
top of the correct Guidelines range and the absence of any evidence suggesting
that the court would have sentenced Mudekunye to 97 months’ imprisonment
irrespective of the correct Guidelines range, Mudekunye has shown a reasonable
probability of a lesser sentence and therefore, demonstrated that the court’s
clear error affected his substantial rights.
                                          c.
      Even where a defendant’s substantial rights are violated, our court retains
discretion to correct the reversible plain error only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Puckett, 129 S.
Ct. at 1429. The substantial disparity between the imposed sentence and the
applicable Guidelines range warrants the exercise of our discretion to correct the
error. See United States v. Gonzalez–Terrazas, 529 F.3d 293, 299 (5th Cir. 2008)
(concluding that the imposition of a sentence that was substantially greater than
the Guidelines range affected the defendant’s substantial rights and the fairness
of the judicial proceedings). We vacate Mudekunye’s sentence and remand for
resentencing.1
                                         III.
      For the foregoing reasons, we AFFIRM on every ground with the exception
of Mudekunye’s sentence which we VACATE and REMAND for resentencing.




      1
         Because we vacate and remand for resentencing, we need not address Mudekunye’s
argument that his sentence was procedurally unreasonable because the sentencing court
treated the Guidelines as mandatory and ignored mitigating factors.

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RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting in part:
      I dissent only from the majority’s, under plain-error review, requiring
resentencing for Mudekunye (part II.B.2.). It has been almost 20 years since
United States v. Olano, 507 U.S. 725 (1993), clarified application of plain-error
review.     And, for reviewing sentences imposed through application of the
Sentencing Guidelines, it has been over six years since United States v. Booker,
543 U.S. 220 (2005), held the Guidelines are only advisory. In the light of Olano
and Booker, it would seem that plain-error review would have been simplified
and made more flexible. Unfortunately, if not amazingly, just the opposite has
occurred.
      This is vividly reflected in the majority’s analysis and holding for
Mudekunye’s sentence, through which it seeks to apply the Supreme Court’s and
our precedent. It’s time for our court to step back, re-examine, and simplify this
important and all too often complex aspect for applying plain-error review to
sentences imposed under the advisory Guidelines. Accordingly, I urge our court
to review en banc this part of the majority opinion.
      In vacating Mudekunye’s sentence, the majority emasculates the plain-error
standard of review by applying it in a manner inconsistent with the Supreme
Court’s and our precedent. In an area of law it admits is unclear, the majority
effectively creates a new rule: where defendant’s imposed sentence lies outside
the correct advisory Guidelines sentencing range, defendant must be resentenced
in district court. This rule is neither supported by precedent nor justified under
plain-error doctrine. The majority’s strained insistence on resentencing reflects
that, within our circuit, plain-error review, in this context, has been weakened to
the point of toothlessness, thereby defeating its many important and salutary
purposes, including “to induce the timely raising of claims and objections . . . .”
Puckett v. United States, 129 S. Ct. 1423, 1428 (2009).



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                                        I.
      From 2004 to 2007, Mudekunye and Muyaba, with others, were tax
preparers at Reliable Express Tax Services, in Dallas, Texas. Mudekunye was
one of two primary preparers. In 2007, Muyaba began operating Efficient Tax
Services, where he and Mudekunye conducted a similar business. Throughout,
Mudekunye, Muyaba, and others, participated in a tax-return scheme, falsely
claiming (frequently without their clients’ knowledge) dependants, business
expenses, filing status, and tax credits; they also charged exorbitant fees against
their clients’ refund checks.
      Mudekunye, Muyaba, and three co-defendants were charged in a 39-count
indictment. A jury found Mudekunye guilty on six counts, including conspiracy,
preparation of false income taxes, and identity fraud; Muyaba was found guilty
on seven similar counts. Mudekunye was sentenced, inter alia, to 97-months’
imprisonment; Muyaba, to 120.
      The district judge who sentenced Mudekunye had presided at his trial.
For Mudekunye’s offense level for computing his advisory Guidelines sentencing
range, the district court adopted the calculation in the presentence investigation
report (PSR): a criminal history category level I and an offense level 28,
resulting in an advisory sentencing range of 78 to 97 months. As discussed in
the majority opinion at 11, in determining that offense level, the district court
erroneously applied two Guidelines sentencing enhancements for the same
conduct. But for this error, Mudekunye’s offense level would have been two
levels lower, resulting in an advisory sentencing range of 63 to 78 months—with
a one-month overlap at 78 months between the correct and incorrect ranges.
      In sentencing Mudekunye, the district court considered: trial evidence; 18
U.S.C. § 3553(a)’s sentencing factors; adopted PSR fact-findings; the Guidelines’
being advisory; and Mudekunye’s request for a sentence at the bottom of the
advisory sentencing range. The PSR included information that Mudekunye filed
fraudulent tax returns from 2003 until late 2008, for an IRS tax loss of

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                                  No. 09-10968

$3,426,916 (a “conservative estimate” because it did not include a variety of
falsely-claimed credits). In the light of those many factors, the district court
concluded a 97-month sentence was “appropriate” and stated: “In addition, this
sentence happens to be within the guideline range . . . .”
                                        II.
      Undisputed is the standard of review—plain error. For understanding
how our court has strayed from the limited role intended for such review, it is
helpful first to recall its history through the landmark Olano decision in 1993.
                                        A.
      Plain-error review is grounded in Federal Rule of Criminal Procedure 52,
which took effect in 1944 and concerns application of harmless and plain error.
For harmless error, the original Rule 52 provided:           “[a]ny error, defect,
irregularity or variance which does not affect substantial rights shall be
disregarded”; but, “[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court”. FED . R.
CRIM. P. 52 (a)-(b) (1944).
      The harmless-error portion of the Rule has not been substantively
amended; the plain-error portion has been and now 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) (2002). (Following Olano, Rule
52(b) was amended by removing the words “or defect”, reflecting that Rule 52(b)
was not to be read in the disjunctive. FED. R. CRIM. P. 52(b) advisory committee
notes.)
      The plain-error portion of the Rule codified the doctrine that had
previously existed only in common law. Id. That doctrine provided: “[I]f a plain
error was committed in a matter so absolutely vital to defendants, [appellate
courts are] at liberty to correct it”. Wiborg v. United States, 163 U.S. 632, 658
(1896) (emphasis added) (evidence showed jury instructions insufficient to
sustain conviction). The concept of being able to correct plain error is found four

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                                    No. 09-10968

years earlier, in two dissents in O’Neil v. State of Vermont, 144 U.S. 323, 360,370
(1892). Justice Field, dissented from the Court’s dismissing for lack of federal
jurisdiction and stated: “I think . . . that this court . . . should take notice of the
error of its own motion; for, if the denial by the court below of the immunity
claimed against the cruel and unusual punishment imposed was an error, it was
one of the gravest character, leaving the defendant to a life of misery, —one of
perpetual imprisonment and hard labor”. Id. at 364-65. Justice Harlan echoed
this view in his dissent. Id. at 370-71.
      Although the plain-error doctrine was, in the beginning, somewhat loosely
defined, the Supreme Court was consistent in its limited use to reverse verdicts.
The Court generally believed it appropriate where there was either a clear lack
of evidence supporting a jury conviction or an erroneous jury instruction. See,
e.g., Wiborg, 163 U.S. at 658 (reversing judgment where no evidence showed
captain’s mates had knowledge of criminal act); see also Clyatt v. United States,
197 U.S. 207, 221-22 (1905) (remand required where “there [wa]s not a scintilla
of testimony” supporting defendant’s conviction); Brasfield v. United States, 272
U.S. 448, 450 (1926) (judge’s polling jurors during their deliberations created
specter of juror-coercion); Weems v. United States, 217 U.S. 349, 362, 382 (1910)
(holding statute unconstitutional). The plain-error doctrine empowered the
Court to “examin[e] th[e] record for the purpose of determining whether there
is any substantial evidence to be found in it to warrant the conviction of [a]
defendant . . . .” Valdez v. United States, 244 U.S. 432, 449 (1917) (Clarke, J.,
dissenting) (citing Diaz v. United States, 223 U.S. 442, 459 (1912) (evidence
sufficient to sustain conviction); Clyatt, 197 U.S. at 207; Wiborg, 163 U.S. at
658). (Under our current doctrine, failure to request a judgment of acquittal for
insufficient evidence is not reviewed for plain error; instead it is reviewed under
a far more strict standard—manifest miscarriage of justice. E.g., United States
v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007); United States v. Pierre, 958 F.2d
1304, 1310-11 (5th Cir. 1992).)

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                                    No. 09-10968

      Eight years before Rule 52(b) went into effect, the Court, in United States v.
Atkinson, 297 U.S. 157 (1936), denied the Government’s claims of reversible error,
and, in doing so, initially defined the parameters of current plain-error review.
Atkinson stated that, only “[i]n exceptional circumstances” may courts of appeals
consider objections not raised in district court. Atkinson, 297 U.S. at 160. In
language adopted almost 60 years later in Olano, the Atkinson Court held plain-
error review could be utilized “if the errors are obvious, or if they otherwise
seriously affect the fairness, integrity or public reputation of judicial proceedings”.
Id. Otherwise, jury verdicts may not be set aside for errors not presented to the
trial court, a practice “founded upon considerations of fairness to the court and to
the parties and of the public interest in bringing litigation to an end after fair
opportunity has been afforded to present all issues of law and fact”. Id. at 159.
      As noted, Rule 52(b), enacted in 1944, codified the plain-error doctrine.
Between 1944 and 1982, the Court applied Rule 52(b) in a manner consistent with
the doctrine that predated its taking effect. See, e.g., United States v. Park, 421
U.S. 658, 675-76 (1975) (jury instructions, based on entirety of record, sufficient to
sustain conviction); Fisher v. United States, 328 U.S. 463, 469-70 (1946) (jury
instructions sufficient to sustain conviction and sentence).
      As also noted, at its inception, Rule 52 did not define the phrase “affecting
substantial rights”—nor does it do so now. The Court, however, in Kotteakos v.
United States, 328 U.S. 750, 757 n.9, 775-76 (1946), indicated that the “affecting
substantial rights” portion of Rule 52 (both harmless error under part (a) and plain
error under part (b)) meant “the error had substantial and injurious effect or
influence in determining the jury’s verdict”. The Court has since noted that the
affecting-substantial-rights standard from Kotteakos has evolved into “a reasonable
probability that, but for the error claimed, the result of the proceeding would have
been different”. United States v. Dominguez Benitez, 542 U.S. 74, 81-82 (2004)
(citation and internal quotation marks omitted). The latter is addressed in the
substantial-rights prong of current plain-error review, discussed infra.



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                                   No. 09-10968

      In United States v. Frady, 456 U.S. 152, 163-66 (1982), the Court
reinforced the limits of Rule 52(b). In ruling that the plain-error standard of
review was inapplicable to collateral review of a criminal conviction, the Court
noted that Rule 52(b) grants “courts of appeals the latitude to correct
particularly egregious errors on appeal” and “reflects a careful balancing of our
need to encourage all trial participants to seek a fair and accurate trial the first
time around against our insistence that obvious injustice be promptly
redressed”. Id. at 163. The Court cautioned, however, that “Rule 52(b) is to be
used sparingly, solely in those circumstances in which a miscarriage of justice
would otherwise result”. Id. at 163 n.14 (emphasis added) (citing United States
v. Gerald, 624 F.2d 1291, 1299 (5th Cir. 1980)). “The intention of [Rule 52(b)] is
to serve the ends of justice; therefore it is invoked only in exceptional
circumstances where necessary to avoid a miscarriage of justice.” Id. (emphasis
added) (citation and internal quotation marks omitted).
      The Court subsequently noted that the “miscarriage of justice” standard
articulated in Frady was synonymous with that from Atkinson (“seriously affect the
fairness, integrity or public reputation of judicial proceedings”). United States v.
Young, 470 U.S. 1, 15 (1985) (holding alleged prosecutorial misconduct not reversible
plain error). In describing the parameters of plain-error review (whether the error
seriously affected substantial rights and had an unfair prejudicial impact on juror
deliberations), the Young Court first cautioned against a per se, i.e., categorical,
approach to plain-error review: “An error . . . must be more than obvious or readily
apparent . . . to trigger appellate review under [Rule] 52(b)”. Id. at 16 n.14. “To do
otherwise could well lead to having appellate courts indulge in the pointless exercise
of reviewing harmless plain errors—a practice that is contrary to the draftsmen’s
intention behind Rule 52(b) . . . .” Id. (internal quotation marks omitted). (Post-
Olano, the Court again cautioned against this per se approach in Puckett v. United
States, 129 S. Ct. 1423, 1433 (2009), citing Young, 470 U.S. at 16 n.14.)




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                                    No. 09-10968

      As noted, in Olano, the Court in 1993 clarified and made uniform “the
standard for ‘plain error’ review by the courts of appeals under Rule 52(b)”. Olano,
507 U.S. at 731. Prior to Olano, our court had been in-step with the Supreme Court
regarding plain error’s being used sparingly. This court was mindful of the policy
underpinnings of plain-error review: “promoting the economy of judicial resources
and maintaining the distinct institutional roles of trial courts and appellate courts
. . . .” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991) (citation and internal
quotation marks omitted). Our court also noted the limited nature of reversal
under the plain-error standard of review:        “it is invoked ‘only in exceptional
circumstances (where necessary) to avoid a miscarriage of justice’”. United States
v. Gerald, 624 F.2d 1291, 1299 (5th Cir. 1980) (quoting Eaton v. United States, 398
F.2d 485, 486 (5th Cir. 1968)); see also Lopez, 923 F.2d at 50 (questions of fact can
never constitute plain error); United States v. Brown, 555 F.2d 407, 420 (5th Cir.
1977) (constitutional errors noticed more freely than less serious ones). Moreover,
our court was mindful that plain-error review depended upon the facts and
circumstances of the case, Sykes v. United States, 373 F.2d 607, 612 (5th Cir. 1966);
and “[t]here is no hard and fast rule for determining whether error is plain”.
Gerald, 624 F.2d at 1299. By 1993, our rule for plain-error review was: “Plain
error is error which, when examined in the context of the entire case, is so obvious
and substantial that failure to notice and correct it would affect the fairness,
integrity or public reputation of judicial proceedings”. United States v. Vontsteen,
950 F.2d 1086, 1092 (5th Cir. 1992) (en banc) (citation and internal quotation
marks omitted).
      In 1993, in Olano, in reversing a circuit court’s employing plain-error review
to overturn convictions, the Court held the presence of alternate jurors among a
deliberating jury was not reversible plain error. Olano, 507 U.S. at 741. In
articulating what was to become the well-known, four-prong framework for plain-
error review, Justice O’Connor reflected upon the doctrine’s history and emphasized
that plain-error review provides courts of appeals only with “limited power” to
correct forfeited (as opposed to waived) error. Id. at 731.

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      The Court explained that forfeited error occurs when defendant fails to
make a timely objection to a court’s deviation from a legal rule; on the other
hand, “waiver is the intentional relinquishment or abandonment of a known
right”. Id. at 733 (emphasis added) (internal citation and quotation marks
omitted). “If a legal rule was violated during the district court proceedings, and
if the defendant did not waive the rule, then there has been an ‘error’ within the
meaning of Rule 52(b) despite the absence of a timely objection.” Id. at 733-34.
      That four-prong framework provides: first, there must be error; second,
that error must be “plain”—“clear or obvious”—meaning not up for reasonable
debate; third, that plain error must have violated defendant’s substantial rights;
and fourth, if the first three prongs are satisfied (reversible plain error), the
courts of appeals may exercise their “remedial discretion” only “if the error
‘seriously affects the fairness, integrity or public reputation of judicial
proceedings’”. Id. at 732-736 (quoting Atkinson, 297 U.S. at 160); see also
Puckett, 129 S. Ct. at 1429. The use of “only” as a qualifier for “seriously affects
the fairness, integrity, or public reputation of judicial proceedings” first
appeared in Johnson v. United States, 520 U.S. 461, 467 (1997).
      In any event, Olano clearly established that remand may be appropriate
only where the reversible plain error impacts this discretionary fourth prong,
i.e., seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Olano, 507 U.S. at 736. In addition, Justice O’Connor explained
why this fourth prong’s definition is not the “miscarriage of justice” standard.
Id.   On this final, discretionary, prong, the Olano Court emphasized the
continuity in its application of plain-error review: “[T]he standard laid down in
United States v. Atkinson, was codified in Federal Rule of Criminal Procedure
52(b), and we repeatedly have quoted the Atkinson language in describing plain-
error review”. Olano, 507 U.S. at 736 (citations and internal quotation marks


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                                  No. 09-10968

omitted). Without satisfying the Atkinson standard, “the discretion afforded by
Rule 52(b) would be illusory”. Id.
                                          B.
      For Mudekunye, those first two prongs of plain-error review (an error in
applying the two enhancements that was clear or obvious) are not at issue. The
majority’s application of the third and fourth prongs flies in the face of each
prong and is contrary to both the limited role for plain-error review and the
discretion and flexibility accorded it.
                                          1.
      Under Olano’s third prong, for reversible plain error, the clear or obvious
error (“plain error” upon analysis of the first two prongs) must “affect substantial
rights”, generally meaning defendant must demonstrate that the error “must
have affected the outcome of the district court proceedings”. United States v.
Mares, 402 F.3d 511, 521 (5th Cir. 2005) (quoting Olano, 507 U.S. at 734). In the
sentencing context, following the 2005 holding in Booker, 543 U.S. at 245, that
the Guidelines are only advisory, our court has interpreted that outcome-
determinative consideration for the third prong to mean “whether the defendant
can show a reasonable probability that, but for the district court’s misapplication
of the Guidelines, he would have received a lesser sentence”. United States v.
Villegas, 404 F.3d 355, 364-65 (5th Cir. 2005) (emphasis added). (As noted
recently by our court, and discussed infra, it is unclear whether a different, pre-
Booker, standard for evaluating a sentencing error’s effect on substantial rights
remains in effect: “if the case were remanded, the trial judge could reinstate the
same sentence”. United States v. Davis, 602 F.3d 643, 647 n.6 (5th Cir. 2010)
(quoting United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997)).)
      For Rule 52(a) harmless-error review, the Government bears the burden
of showing the error was harmless beyond a reasonable doubt; however, for Rule


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                                  No. 09-10968

52(b)’s plain-error review, it is the defendant who bears the burden of persuasion
with respect to the prejudice (third) prong. Olano, 507 U.S. at 734. And, “that
burden should not be too easy”. Dominguez Benitez, 542 U.S. at 82. “Otherwise,
the prejudice standard would not serve its purpose of ‘enforc[ing] the policies
that underpin [plain-error review] generally, to encourage timely objections and
reduce wasteful reverses by demanding strenuous exertion to get relief for
unpreserved error.’” Mares, 402 F.3d at 521 (quoting Dominguez Benitez, 542
U.S. at 82).
      In sentencing Mudekunye, the district court was very thorough.               It
received evidence, including testimony, concerning the tax-loss amount
attributable to Mudekunye’s conduct ($3,426,916), and found that the
calculations used in the PSR were reasonable and accounted for a complete loss
to the Government. In addition, the court heard testimony from two witnesses
concerning Mudekunye’s personal history and characteristics, and considered
letters pleading for leniency on his behalf. Moreover, Mudekunkye requested a
sentence at the bottom of the calculated advisory Guidelines sentencing range
(78 months), contending he did not do “anything that would suggest that his
sentence should be any higher than that”.
      After considering the facts contained in the PSR, Mudekunye’s objections,
character witnesses, and his request for a 78-month sentence, the district court
imposed a 97-month sentence, which the court described as “reasonable” based
upon “the evidence that I have heard at trial and those [sentencing] matters I’m
required to take into account under Section 3553(a)”. The court added: “I
believe this is the appropriate sentence in this case given all of the facts and
circumstances and that this sentence is sufficient but not greater than necessary
to comply with the statutory purposes of sentencing after reviewing all of the
factors required to be considered”. It then stated : “In addition, this sentence


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                                  No. 09-10968

happens to be within the guideline range and that range does not exceed 24
months”.    (Where defendant is sentenced within an advisory Guidelines
sentencing range, and if that range exceeds 24 months, the court must provide
the reasons for imposing that sentence. 18 U.S.C. § 3553(c)(1). In any event, as
shown above, those reasons were given.)
      Here, in holding that Mudekunye’s substantial rights were affected, the
majority fails to consider his burden of persuasion (the majority correctly states
the rule, but ignores it, Maj. Opn. at 11). In essence, the majority attempts
improperly to satisfy Mudekunye’s burden for him. Defendant’s burden, under
the third prong, requires
            the defendant to show that the error actually did make
            a difference: if it is equally plausible that the error
            worked in favor of the defense, the defendant loses; if
            the effect of the error is uncertain so that we do not
            know which, if either, side it helped the defendant
            loses.
Mares, 402 F.3d at 521 (quoting United States v. Rodriguez, 398 F.3d 1291, 1299
(11th Cir. 2005)); see also United States v. Jones, 444 F.3d 430, 443 (5th Cir.
2006). “[A] defendant normally ‘must make a specific showing of prejudice’ in
order to obtain relief”. Puckett, 129 S. Ct. at 1433 (quoting Olano, 507 U.S. at
735). The majority has turned the defendant’s third-prong burden on its head.
Instead of addressing what defendant has shown in attempting to satisfy his
burden, the majority states only that, “where it is not apparent from the record
that the defendant would have received an above-Guidelines sentence [a
sentence above a correctly calculated advisory sentencing range], the imposed
sentence affects the defendant’s substantial rights” and then places the burden
on the Government to show support in the record for a sentence imposed above
the correct range. Maj. Opn. at 13 (citation and internal quotation marks
omitted). Thus, the majority has flipped the third-prong of plain-error review.

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                                    No. 09-10968

According to the majority, unless the Government can show otherwise, being
sentenced above the correct range constitutes error affecting defendant’s
substantial rights. Id. at 13-14.
      As for the majority’s attempting to satisfy Mudekunye’s burden for him,
his opening brief does not even begin to show his substantial rights were
affected. In an argument of just over one page, Mudekunye concedes the error
was not preserved in district court and asserts only that, nevertheless, “this
error must result in a new sentencing hearing”. Re-stated, his brief simply
asserts: he was sentenced under the wrong advisory Guidelines sentencing
range; and, therefore, he is entitled to resentencing.
      Moreover, Mudekunye did not file a reply brief. Accordingly, he did not
reply to the Government’s thorough briefing on why he failed to show reversible
plain error and why, even if he had, we should not exercise our discretion to
correct it.
      In short, it is the majority, not Mudekunye, who references the record
evidence: “It is not apparent from the record that Mudekunye would have
received an above-Guidelines sentence of 97 months if the district court had
calculated the Guidelines correctly”. Id. at 13. Along this line, Justice Cardozo
admonished that a judge “is not a knight-errant, roaming at will in pursuit of his
own ideal of beauty or of goodness”. BENJAMIN N. CARDOZO, THE NATURE OF THE
JUDICIAL PROCESS 141 (1921); see also United States v. John, 597 F.3d 263, 292
(5th Cir. 2010) (Smith, J., dissenting) (“Judges are not like pigs, hunting for
truffles . . . .” (citations and internal quotation marks omitted)). Simply put, our
role is not to satisfy Mudekunye’s affected-substantial-rights prong for him.
      Properly     placing   that   burden    upon    defendant—as      is   clearly
required—yields a different result.       Mudekunye shows only that he was
sentenced under an incorrect advisory Guidelines sentencing range; but, being


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                                  No. 09-10968

sentenced outside the correct range does not, ipso facto, affect his substantial
rights. Post-Booker, an advisory Guidelines sentencing-range calculation is just
“one factor that a district court must consider in its [18 U.S.C.] § 3553(a)
analysis . . . .” Davis, 602 F.3d at 649 n.9 (noting that, by itself, erroneous
Guidelines sentencing-range selection not necessarily sufficient for error to affect
substantial rights). And, as the majority admits, our precedent is unclear on
whether defendant’s substantial rights are affected where the correct and
incorrect sentencing ranges overlap and defendant is sentenced outside that
overlap:   “Mudekunye’s case does not neatly fall into either line of [our]
precedent”. Maj. Opn. at 12.
      A more complete (and proper) evaluation of the record shows that
Mudekunye has not met his heavy burden of persuasion. The majority either
glosses over or chooses to ignore: Mudekunye’s asking for a sentence at the
bottom of the (now incorrect) advisory sentencing range and the district court’s
instead deciding to sentence him at the top of that range; the court’s clear
statement treating the Guidelines as advisory only; the correct and incorrect
advisory ranges overlapping one another; the district court’s adopting the facts
and findings of the PSR; and the district court’s stating that Mudekunye’s
sentence “is the appropriate sentence in this case given all of the facts and
circumstances” and “[i]n addition . . . happens to be within the guideline range”.
(Emphasis added.)
      The majority at 13 considers “vague” these “appropriate sentence . . . given
all of the facts and circumstances” and “happens to be within the guideline
range” statements, because the district court did not add that it would impose
the same sentence even if it were not within a correct range. Id. But words have
meaning; and, as an appellate court, we must presume that the sentencing court
meant what it said. It would go beyond frustrating the purposes of the judicial


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                                  No. 09-10968

process for our court to guess at what the sentencing court did, and did not,
“mean”. In the light of the foregoing, Mudekunye, at best, can show (and does
not even attempt to do so) only that the impact of the error is perhaps
uncertain—in which instance he has not established that the error affected his
substantial rights. See Jones, 444 F.3d at 443 (“At best, the record indicates
that it is equally plausible that the district court would have imposed the same
sentence as it is plausible that the court would not have.” (citing Mares, 402 F.3d
at 521)).
      As stated, the majority appears to conclude that, in this instance, remand
would not be required had the district court either: (1) been more explicit in its
desire to impose the 97-month sentence regardless of the advisory Guidelines;
or (2) calculated both the correct and incorrect sentencing ranges before
imposing sentence. Maj. Opn. at 13. In doing so, the majority cites United
States v. Lemus-Gonzalez, 563 F.3d 88, 91, 94 (5th Cir. 2009) (court considered
both correct and incorrect ranges and stated it would impose same sentence
“should it turn out that the court is wrong”) and United States v. Bonilla, 524
F.3d 647, 656-57 (5th Cir. 2008) (finding remand unnecessary where court
considered correct and incorrect ranges, imposed sentence, and stated: “this is
the sentence that I would impose in any event”).
      For starters, neither Bonilla nor Lemus-Gonzalez applied plain-error
review; in each instance, the issue was preserved in district court. Moreover, the
majority’s conclusions based upon these cases are non-sensical. First, I am at
a loss for what else the district court here could have meant in saying that the
sentence was appropriate “given all of the facts and circumstances” and
“happens to be within the guideline range”. Second, the majority essentially
requires a sentencing court to: (1) recognize its error sua sponte; and (2) create
two sentences—one desired and one conditional—with the conditional to be used


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                                   No. 09-10968

only if the desired sentence is not free from error. In my view, that places an
unnecessary and unrealistic burden upon the district court.
                                         2.
      Even assuming Mudekunye’s substantial rights were affected, his sentence
should not be vacated. As discussed, the fourth, and discretionary, prong of
plain-error review provides: even if defendant has satisfied the first three
prongs, we retain discretion to correct the error and should do so only if it
“seriously affects the fairness, integrity or public reputation of judicial
proceedings”. Olano, 507 U.S. at 736 (citation and internal quotation marks
omitted). As discussed supra, Olano did not expressly use the word “only” for
correcting a reversible plain error when it “seriously affects the fairness,
integrity or public reputation of judicial proceedings”. Id. Since then, however,
the Supreme Court has added “only” to the fourth prong: “An appellate court
should exercise its discretion to correct plain error only if it ‘seriously affect[s]
the fairness, integrity, or public reputation of judicial proceedings”. Jones v.
United States, 527 U.S. 373, 389 (1999) (emphasis added) (quoting Olano, 507
U.S. at 736). “The fourth prong is meant to be applied on a case-specific and
fact-intensive basis.” Puckett, 129 S. Ct. at 1433 (noting per se approach is
flawed and countervailing factors should be considered); see also United States
v. Calverley, 37 F.3d 160, 164 (5th Cir. 1994) (en banc) (“The appellate courts
must determine whether the facts of the particular case warrant remediation.”),
abrogated on other grounds by United States v. Dupre, 117 F.3d 810, 817 (5th
Cir. 1997); United States v. Rodriguez, 15 F.3d 408, 416 (5th Cir. 1994) (“the
ultimate decision whether . . . to take notice of an error not raised below must
depend on the facts of the particular case” (quoting United States v. Morales, 477
F.2d 1309, 1315 (5th Cir. 1973))).




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      As noted, this is a discretionary, not mandatory, prong, and informs our
court that remand “should be employed in those circumstances in which a
miscarriage of justice would otherwise result”. Olano, 507 U.S. at 735-36
(citation and internal quotation marks omitted) (stating this prong is
“permissive” and “the court of appeals has authority to order correction, but is
not required to do so”). Without an exacting and limited application of this
prong, it becomes “illusory”. Id. at 737. In short, “[m]eeting all four prongs is
difficult, as it should be”. Puckett, 129 S. Ct. at 1429 (citation and internal
quotation marks omitted).
      In addressing the fourth prong, the majority notes our court’s discretion
to correct reversible plain error, and then states: “The substantial disparity
between the imposed sentence and the applicable Guidelines range warrants the
exercise of our discretion to correct the error”. Maj. Opn. at 14. It states no
more, other than citing United States v. Gonzalez-Terrazas, 529 F.3d 293, 298-99
(5th Cir. 2008), in which defendant was sentenced at the bottom of an incorrect
advisory sentencing range; the imposed sentence was 33 months above the
bottom of the correct, and lower, range.
      Here, the majority utterly fails to conduct any sort of fact-intensive
inquiry. See Puckett at 1433. Instead, it assumes that, because there is a
“substantial disparity” between the imposed sentence and the correct sentencing
range, our court must, ipso facto, use its discretion and remand for resentencing.
Maj. Opn. at 14 (“The substantial disparity between the imposed sentence and
the applicable Guidelines range warrants the exercise of our discretion to correct
the error.”). In so ruling, the majority has folded the fourth-prong of our plain-
error review inquiry into the third prong, thereby making the fourth prong—just
as Olano warned—“illusory”. Olano, 507 U.S. at 736; John, 597 F.3d at 290
(Smith, J., dissenting) (“By such reasoning, the fourth prong is collapsed into the


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third, further weakening the test.”); see also Davis, 602 F.3d at 651 n.12 (noting
that only under a mandatory-Guidelines regime is remand required whenever
error clearly affected defendant’s sentence and cautioning that United States v.
Price, 516 F.3d 285 (2008), does not categorically require remand wherever a
probability of a lesser sentence is found).
      A more thorough (and, in my view, correct) review of the record mandates
that, under our discretion, resentencing is not required. See Young, 470 U.S. at
16 (“Especially when addressing plain error, a reviewing court cannot properly
evaluate a case except by viewing such a claim against the entire record.”) For
example, Muyaba filed false tax returns from 2005 until late 2008, for an IRS
tax loss of $2,661,060; Mudekunye did so from 2003 until late 2008 with an IRS
tax loss of $3,426,916 (“conservative estimate”). Nevertheless, Mudekunye’s
challenged 97-month sentence is substantially less than Muyaba’s for 120
months.    Mudekunye’s activities, however, were essentially the same as
Muyaba’s: unlike Mudekunye, Muyaba had a leadership role at Efficient; but,
unlike Muyaba, Mudekunye was convicted of two counts of identify theft, and,
as noted, was responsible for a considerably higher tax loss than Muyaba.
      In the light of Mudekunye’s criminal conduct, this is not the appropriate
instance for us to exercise our discretion and require resentencing; in the light
of the entire record, the district court’s error did not rise to the level of being
“particularly egregious”. Frady, 456 U.S. at 163. Therefore, even assuming
reversible plain error, it falls far short of seriously affecting the fairness,
integrity, or public reputation of judicial proceedings. See John, 597 F.3d at 290
(Smith, J., dissenting).
      Regardless, the point remains: in failing to conduct a fact-intensive
inquiry, the majority fails to conduct plain-error review. See also id. at 291
(Smith, J., dissenting) (“[G]ranting relief under the fourth prong is wholly


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                                  No. 09-10968

discretionary and . . . must be done on a case-by-case basis . . . [;] we are not
tethered to what other panels of this court have done in deciding whether to
exercise their discretion in other cases, similar or not”.).
                                        C.
      Because the majority vacates Mudekunye’s sentence due to the district
court’s erroneous application of two enhancements, instead of one, it does not
address Mudekunye’s contending, in the alternative, that the sentence is greater
than necessary. Maj. Opn. at 14 n.2. Because Mudekunye’s first challenge to his
sentence fails, it is necessary to address his second: that his sentence was
procedurally unreasonable because the district court, according to Mudekunye,
treated his advisory sentencing range as mandatory and ignored mitigating
factors—his history and characteristics.
      Mudekunye contends he preserved this second procedural challenge at
sentencing by, as noted supra, requesting a below-range sentence. That, however,
does not constitute the contention presented here. United States v. Garcia-
Bahena, No. 10-10355, 2010 WL 4740317, at *1 (5th Cir. 23 Nov. 2010); United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009) (defendant must
raise procedural objection in district court so it may correct itself). Therefore,
plain-error review again applies. E.g., United States v. Peltier, 505 F.3d 389, 391-
92 (5th Cir. 2007).
      The record reflects that the district court expressly treated the Guidelines
as advisory and considered, inter alia, defendant’s history and characteristics.
Accordingly, Mudekunye does not get past the first prong of plain-error review:
he fails to show error by the court in its consideration of § 3553(a). See United
States v. Smith, 440 F.3d 704, 707-08 (5th Cir. 2006).
                                        D.
      This is yet another instance revealing the confused status and application
of our circuit’s precedent for plain-error review. See Davis, 602 F.3d at 651

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(noting case law unsettled as to whether “precedent requires remand whenever
an appellant can show a reasonable probability that an unpreserved error
affected the sentence”); John, 597 F.3d at 290 (Smith, J., dissenting) (“question
that this circuit has not definitively resolved, which is the extent of the deviation
from the proper guideline range necessary for [a sentencing] error to ‘affect
substantial rights’”); United States v. Ellis, 564 F.3d 370, 378 (5th Cir. 2009)
(“we are not convinced that the case law on this point is settled or as categorical
as language in some cases might make it seem”); Price, 516 F.3d at 289 n.28
(noting “the potential conflict between pre- and post-Booker decisions addressing
the question of ‘affecting substantial rights’”). And our circuit is not alone in this
regard. See United States v. Langford, 516 F.3d 205, 222-24 (3d Cir. 2008)
(Weis, J., dissenting) (noting problems in post-Booker line of cases between
Guidelines-calculation errors and reasonable sentences under plain-error
review).
      The following provides a vivid example of our confused precedent. As
noted, in Price (2008), our pre-Booker line of cases applied an objective test for
whether defendant’s substantial rights were affected by a misapplication of a
sentencing-Guidelines enhancement: if, on remand, “the judge could reinstate
the sentence, we held, we would find no [third-prong] prejudice under plain error
review”. Price, 516 F.3d at 289 n.28 (emphasis in original). Price noted that,
under our post-Booker line of cases, however, that test has become more
subjective: “‘whether the defendant can show a reasonable probability that, but
for the district court’s misapplication of the Guidelines, [the defendant] would
have received a lesser sentence’”. Id. (quoting Villegas (2005), 404 F.3d at 364).
Price noted that our court would eventually have to address the potential conflict
between the subjective versus objective inquiries when faced with “a closer
question of ‘substantial rights’”. Id.; see also Jones (2006), 444 F.3d at 438 (“We
need not resolve whether the two can be harmonized or which standard governs

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because a remand is not required under either.”) Davis (2010) noted that,
although the substantial-rights standard from Villegas was written post-Booker,
it concerned a pre-Booker sentencing, under then-mandatory Guidelines. Davis,
602 F.3d at 651 n.12. The Villegas standard is cited in United States v. Blocker,
612 F.3d 413, 416-17 (5th Cir. 2010), which is, in turn, cited by the majority at
11-12.
      As recent opinions show, our court has become increasingly “generous with
remand” in addressing sentencing errors under plain-error review. As Ellis
reminded and cautioned:
            Not every error that increases a sentence need be
            corrected by a call upon plain error doctrine. It bears
            emphasis that all defendants’ appeals challenging a
            sentence rest on the practical premise that the sentence
            should be less. The doctrine of plain error serves
            powerful institutional interests, including securing the
            role of the United States District Court as the court of
            first instance, as opposed to a body charged to make
            recommendations to appellate courts. And even if an
            increase in a sentence be seen as inevitably ‘substantial’
            in one sense it does not inevitably affect the fairness,
            integrity, or public reputation of judicial process and
            proceedings. To conclude that not correcting the error
            claimed here casts doubt upon the fairness, integrity, or
            public reputation of the proceeding drains all content
            from the doctrine of plain error.
Ellis, 564 F.3d at 378-79.
      In the sentencing context, plain-error review has been watered down by
years of, in my view, incorrect application. Post-Booker, our court has, as
discussed by the majority, applied at least two per se rules with respect to
sentencing errors and our review under the plain-error standard. The first is:
when defendant’s sentence falls within an incorrect advisory Guidelines
sentencing range that is higher than the correct range, and there is no overlap
between the two, defendant has shown a reasonable probability that he would

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have received a lesser sentence absent additional evidence to the contrary. Maj.
Opn. at 12; see, e.g., John, 597 F.3d at 284-85. The second is: “when the correct
and incorrect ranges overlap and the defendant is sentenced within the overlap,
we do not assume, in the absence of additional evidence, that the sentence
affects a defendant’s substantial rights”. Maj. Opn. at 12 (emphasis, citation,
and internal question marks omitted). Yet, the Supreme Court has specifically
rejected using per se rules under the plain-error standard. Puckett, 129 S. Ct.
at 1433 (“We have emphasized that a ‘per se approach to plain-error review is
flawed.’” (quoting Young, 470 U.S. at 17)). “‘The plain error rule is not a run-of-
the-mill remedy.’” Frady, 456 U.S. at 163 n.14 (quoting Gerald, 624 F.2d at
1299).
      Along those lines, in applying plain-error review post-Booker, our court has
generated significant variance in measuring the severity of a sentence-increase
necessary to affect defendant’s substantial rights where the Guidelines were
erroneously applied. See, e.g., Blocker, 612 F.3d at 417 (defendant’s substantial
rights not affected after receiving erroneous two-point increase to criminal-
history score); United States v. Sandlin, 589 F.3d 749, 757-58 (5th Cir. 2009)
(following downward departure, defendant’s substantial rights affected because
of erroneous 17-level increase to offense level); United States v. Sanchez, 527
F.3d 463, 466 (5th Cir. 2008) (substantial rights affected because sentence more
than double the correct range); Price, 516 F.3d at 289 n.28 (substantial rights
affected because of 18-month disparity between the bottom of the correct and
incorrect ranges); John, 597 F.3d at 285 (substantial rights affected because
defendant’s 108-month sentence exceeded top of correct range by 21 months);
United States v. Gonzalez, 253 F. App’x 387, 388 (5th Cir. 2007) (substantial
rights not affected where sentence exceeded correct range by 12 months); United
States v. Jones, 489 F.3d 679, 682 (5th Cir. 2007) (regardless of third-prong
analysis, defendant’s receiving sentence 23 months above erroneous sentencing

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                                   No. 09-10968

range did not affect fairness, integrity, or public reputation of judicial
proceedings); United States v. Severin, 221 F. App’x 299, 303 (5th Cir. 2006)
(substantial rights affected because defendant’s sentence three months in excess
of correct range); Jones, 444 F.3d at 438-39 (based on the record, substantial
rights not affected where district court could reasonably impose maximum
statutory sentence, 63 months greater than top of range); United States v.
Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005) (defendant’s substantial rights
affected by erroneous 16-level increase to offense level).
      Here, the majority effectively maintains that any sentence erroneously
outside the correct advisory Guidelines sentencing range affects defendant’s
substantial rights. That position will hamstring our court’s discretionary role
in future sentencing cases under plain-error review, thus guaranteeing that the
fourth prong will be “illusory”.
      Moreover, the majority’s interpretation of plain-error review in this
instance puts an unnecessary and excessive burden upon district courts. As
noted, in setting a low threshold for reversible plain error, the majority
undermines a basic premise of plain-error review: “to induce the timely raising
of claims and objections, which gives the district court the opportunity to
consider and resolve them”. Puckett, 129 S. Ct. at 1428. That contemporaneous-
objection rule is intended to prevent defendants from “sandbagging” the district
court so that it can correct errors as they occur. John, 597 F.3d at 292 (Smith,
J., dissenting) (quoting Puckett, 129 S. Ct. at 1429). Today’s ruling, however,
encourages “defendants to refrain from noticing sentencing error in the district
court, secure in the knowledge that any forfeited error that arguably lengthens
a sentence will be corrected on appeal, resulting in resentencing and a second
bite at the apple”. Id. It is axiomatic that forfeiting an objection has serious
consequences, but the majority chooses to ignore them. Defendants should not
appear on a sentencing or re-sentencing merry-go-round before the district

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courts; given the high volume of sentencings those courts face, they “should be
able to count on this court faithfully to apply the strict plain-error standard to
forfeited error”. Id. Again, meeting all four plain-error prongs is supposed to be
difficult. See Puckett, 129 S. Ct. at 1429.
                                       III.
      For these reasons, I respectfully dissent from Mudekunye’s being
resentenced and urge our court to consider en banc the proper (more simple and
flexible) application of post-Olano and post-Booker plain-error review.




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