In U.S. v. Rodriguez, No. 04-12676 (Feb. 4, 2005), the Court (Carnes, Marcus, Fay) upheld a sentence against a Booker challenge on "plain error" review.
First addressing Rodriguez’ preserved error, the Court rejected the argument that the sentencing court erred in its calculation of drug quantity, finding that the court’s estimate was "anything but erroneous."
Turning to the Booker issue, the Court noted that to establish "plain error" a defendant had to show not only that there was "error," and that the error was "plain," but also that the error affected "substantial rights." The Court recognized that there was "error" and that the error was "plain" but noted that a substantial rights violation required showing that the error undermined confidence in the outcome. The Court noted that in Jones v. U.S., 527 U.S. 373 (1999), the Supreme Court had stated that where the effect of an alleged error in a faulty jury instruction’s effect on the jury is "uncertain," and one cannot say whether the error worked to the defendant’s detriment, the error does not affect a defendant’s substantial rights.
The Court further noted that since, post-Booker, the sentencing court could have imposed the now-invalid guideline drug enhancements based on its discretion to impose a sentence within the statutory range, it was uncertain whether the defendant was worse off as a result of the Sixth Amendment violation. The Guidelines remained an "important factor" for the Court’s decision.
The Court found that it did not know whether, in imposing sentencing under advisory Guidelines, a sentencing court would have imposed a lesser sentence on Rodriguez than the mid-guideline range of 109 months that it imposed. [Query: Is there a meaningful difference between uncertainty, as in Jones, over an event in the past, e.g. how a jury instruction affected a jury’s verdict, and an event in the future, as in Rodriguez, over how a changed sentencing regime might affect a resentencing? Is this the key difference between the past and the future: for the past, the doors have closed, but for the future, even when the situation objectively is hopeless, isn’t there always still room for hope?]. The Court found that it was not necessarily prejudicial error for a court to have believed that a sentence was mandatory, if the court could have imposed the same sentence under a discretionary regime. The Court recognized the conflict of its reasoning with decisions of the Second, Fourth and Sixth Circuit, but found these decisions unpersuasive.
