United States v. White, Mark A. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2875
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARK A. WHITE,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. IP-98-38-CR-M/F/-03—Larry J. McKinney, Chief Judge.
____________
SUBMITTED DECEMBER 30, 2003—DECIDED MAY 3, 2005
____________
Before RIPPLE, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. In this successive appeal we
consider the propriety of Mark A. White’s sentence on his
convictions for participating in a drug conspiracy and money
laundering. White contends that our remand order follow-
ing his initial appeal was limited in scope, solely permitting
the district court to recalculate his sentence without the
vacated murder cross-reference. Therefore, he reasons, the
district court exceeded its authority when it applied an
obstruction of justice enhancement to White’s sentencing
guideline calculation. White also asserts that the district
2 No. 03-2875
court’s findings of fact do not support the obstruction of jus-
tice enhancement, and that the imposition of the enhance-
ment was in violation of the Supreme Court’s recent decision
in United States v. Booker, 125 S. Ct. 738 (2005). Lastly, he
argues that his Due Process rights were violated based on
the lower prison sentence granted his codefendant. While
we find that our remand order allowed the district court to
consider the obstruction of justice enhancement, and that
the sentence did not violate due process, we nonetheless
remand White’s case to the district court for reconsideration
of his sentence consistent with this opinion and Booker.
I. BACKGROUND
We assume familiarity with the general facts of this case
as set forth in United States v. Thompson, 286 F.3d 950 (7th
Cir. 2002). As this appeal is limited to Mark A. White, we
will repeat only those facts pertinent to his conduct. A jury
convicted White of participating in a conspiracy to distrib-
ute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846, and
three counts of money laundering in violation of 18 U.S.C.
§ 1956(a)(1)(A)(i), (B)(i), and (h). During White’s first
sentencing hearing, the district court concluded, and we
agreed, that Marcus Willis, an undercover law enforcement
officer, was murdered in White’s vehicle, a white Yukon.
Thompson, 286 F.3d at 956-57. White aided in the cover-up
of Willis’s murder by lying to police officers about his where-
abouts on the morning of and after the murder. He restated
his lies under oath at his detention hearing, thereby actively
participating in the cover-up. Moreover, he attempted to
tamper with evidence of the murder by scheduling the Yukon
to be repaired before police could examine the vehicle for
evidence. Id. at 961 n.4. However, after the conspirators’
arrest but before the scheduled repair could take place, a
police inspection of the Yukon revealed that the front
passenger seat was removed, carpet from the front passen-
No. 03-2875 3
ger side was cut out, damage to the left side of the front
windshield was present, and Marcus Willis’s blood was in
the vehicle.
A. The Original Sentencing and First Appeal
At his original sentencing hearing, the district court
sentenced White to life imprisonment after concluding that
the conspiracy trafficked in more than five kilograms of
cocaine and that the United States Sentencing Guidelines
(U.S.S.G.) § 2D1.1(d)(1) murder cross-reference enhance-
ment was applicable. The Presentence Report (PSR) also
recommended increasing White’s base offense level by two
for obstruction of justice in accordance with U.S.S.G.
§ 3C1.1. The district court, however, chose not to apply the
obstruction of justice enhancement because the murder
cross- reference enhancement involved parallel relevant
conduct and application of both enhancements would have
amounted to double counting in violation of U.S.S.G. § 1B1.1.
In Thompson, 286 F.3d at 955, we affirmed White’s convic-
tions but remanded his case for resentencing. We held that
the district court’s factual findings did not sufficiently sup-
port the murder cross-reference enhancement because the
record did not reveal that White could reasonably foresee
that Willis could be killed with malice aforethought in fur-
therance of the conspiracy. Our remand language was general,
instructing the district court to resentence White “consistent
with our ruling.” Id. at 961.
B. The Resentencing Hearing
Pursuant to our instructions, the district court resentenced
White on June 13, 2003. Prior to White’s resentencing, on
November 15, 2002, Dennis Jones, White’s co-conspirator,
was resentenced. He was found guilty of the same criminal
offenses as White and also lied to police about his where-
4 No. 03-2875
abouts and participated in the murder’s cover-up. At Jones’s
resentencing hearing, also done pursuant to this court’s
decision in Thompson, Chief Judge McKinney declined to
add the obstruction of justice enhancement, reasoning:
It is true that those statements that I found to sup-
port the foreseeability of the murder aren’t related
to the offense of conviction in one way, but in an-
other way they are. They are related to the ability
of this conspiracy to successfully pursue its ends. I
think it is a relatively difficult call to make at this
point, and it is my view that I will not add that
obstruction of justice at this point.
Despite Chief Judge McKinney’s leniency with Jones, his
analysis of the remand order and obstruction of justice en-
hancement led to a different result at White’s resentencing
hearing:
It seems to me that the remand is a narrow remand
and it is for me to resentence Mr. White without
the murder cross-reference. It is, I think, true that
the findings that I made at the time that supported
what I thought, or that I thought at the time sup-
ported a murder cross-reference are the same find-
ings that could possibly then have supported an
obstruction of justice . . . . I was concerned about it
then as double counting. And so the issue today is
on this remand, would it be permissible for the
Court to take the findings that the Appellate Court
determined did not support a murder cross-refer-
ence and use those same findings to support an
obstruction of justice addition because there isn’t
any question of double counting anymore. [. . .] I
think those findings made before do in fact support
an obstruction of justice conclusion. [ . . .] Again,
the issue is whether under this narrow remand I
No. 03-2875 5
can take that step. I don’t believe there’s anything
in that remand that requires that those facts no
longer be considered. And I will consider them.
Then, in agreement with the PSR’s recommendation and
the district court’s own findings of fact, Chief Judge
McKinney imposed the obstruction of justice enhancement,
sentencing White to 480 for the drug conspiracy charge and
to 240 months on each of the other three convictions, to be
served concurrently. Jones, however, as a result of the
court’s decision not to apply the obstruction of justice
enhancement, was sentenced to 350 months in prison.
II. DISCUSSION
White raises three issues on appeal. First, he asserts that
the district court lacked jurisdiction to consider whether
the obstruction of justice enhancement applies because it
was beyond the scope of our remand. Second, he submits
that even if the district court acted within the scope of
remand, it clearly erred as its factual findings are not sup-
ported by the record, and were made in contravention of
United States v. Booker, 125 S. Ct. 738 (2005). Lastly, he
claims that the disparity between his sentence and that of
his co-conspirator Jones violates his Due Process rights.
We address each of his arguments in turn.
A. Scope of Remand
White’s contention that the district court acted outside
the scope of the remand by adding the obstruction of justice
enhancement to his offense level calculation is a question
of law that we review de novo. United States v. Sumner,
325 F.3d 884, 888 (7th Cir. 2003); United States v. Hus-
band, 312 F.3d 247, 251 (7th Cir. 2002).
6 No. 03-2875
Title 28 U.S.C. § 2106 grants appellate courts flexibility
in determining the scope of remand.1 This Court has pre-
viously stated that in the sentencing context, “the statute
authorizes us to ‘limit a remand to specific issues or to order
complete resentencing.’ ” United States v. Young, 66 F.3d
830, 835 (7th Cir. 1995) (quoting United States v. Polland,
56 F.3d 776, 777 (7th Cir. 1995)). Both the law of the case
doctrine and the mandate rule require the district court to
adhere to the commands of this Court. See Husband, 312
F.3d at 250 n.3 (“ ‘law of the case’ generally requires the
district court to confine its discussion to the issues re-
manded”) (internal citation omitted); Polland, 56 F.3d at
777-78 (“mandate rule requires a lower court to adhere to
the commands of a higher court on remand”). The scope of
a district court’s power on remand is determined by the
language of the order of remand. United States v. Buckley,
251 F.3d 668, 669 (7th Cir. 2001). There is no formula for
determining its scope. See Husband, 312 F.3d at 251 (“The
court may explicitly remand certain issues exclusive of all
others; but the same result may also be accomplished im-
plicitly.”). But see Young, 66 F.3d at 836 (suggesting that
explicit language is required for a limited remand).
Our case law has characterized the scope of the remand
issue using two analogies: (1) that upon remand the district
court is presented with a “clean slate” or (2) the district
court may “unbundle the sentencing package.” There is no
meaningful distinction in this phraseology. In United States
1
28 U.S.C. § 2106 states:
The Supreme Court or any other court of appellate
jurisdiction may affirm, modify, vacate, set aside or re-
verse any judgment, decree, or order of a court lawfully
brought before it for review, and may remand the cause
and direct the entry of such appropriate judgment, de-
cree, or order, or require such further proceedings to be
had as may be just under the circumstances.
No. 03-2875 7
v. Smith, 103 F.3d 531, 534 (7th Cir. 1996), we held that
the sentencing guidelines provide lower courts with the
authority to restructure sentences when part of a sentence
is vacated. We opined:
If a multicount sentence is a package—and we
think it is—then severing part of the total sentence
usually will unbundle it. And we do not think it
matters what means are used to bring resentencing
proceedings before the district court. Under the sen-
tencing package concept, when a defendant raises
a sentencing issue he attacks the bottom line.
Id.; see also United States v. Noble, 299 F.3d 907, 910 (7th
Cir. 2002) (“[I]t is settled that after the appellate court
vacates the sentence on a particular count, the district court
on remand may adjust the entire sentencing ‘package.’ ”);
United States v. Binford, 108 F.3d 723, 729 (7th Cir. 1997)
(holding that package concept is applicable in the collateral
attack context).
Likewise, in Polland, we explained, “the vacation of a sen-
tence results in a ‘clean slate’ and allows the district court
to start from scratch.” 56 F.3d at 777 (citing United States
v. Atkinson, 979 F.2d 1219, 1223 (7th Cir. 1992) (instruct-
ing trial court to write on a “clean slate” after vacating the
original sentence)); see also United States v. Barnes, 948
F.2d 325, 330 (7th Cir. 1991) (stating that the effect of a
vacated sentence is to provide the trial judge with a “clean
slate as far as sentencing [is] concerned”). In Polland, we
further clarified that vacation of a sentence does not mean
“we must always order, and the district court must always
engage in, complete resentencing,” 56 F.3d at 779; rather
the calculus is a practical one. We recognize that in a sen-
tencing determination potential enhancements are inter-
connected and the district court’s original sentencing intent
may be undermined by altering one portion of the calculus.
Furthermore, vacated aspects of a sentence may change the
8 No. 03-2875
form of the sentence. We have ruled that “[a] court may
increase a sentence on an unchallenged count without vio-
lating the Double Jeopardy Clause so long as the new sen-
tence is lawful.” Smith, 103 F.3d at 535 (citing Pennsylvania
v. Goldhammer, 474 U.S. 28 (1985)). Additionally, the district
court should be “invited to resentence the defendant on all
counts in order to achieve a rational, coherent structure
in light of the remaining convictions.” United States v.
Martenson, 178 F.3d 457, 465 (7th Cir. 1999).
In Thompson, we found that the district court erred in
applying the murder cross-reference enhancement to White’s
offense level calculation. Further, we directed that “we
remand for resentencing consistent with our ruling.” Taken
as a whole, the remand order did not implicitly or explicitly
suggest that the district court only eliminate the murder
cross-reference enhancement.
White incorrectly asserts that the sentence was not
vacated because we did not explicitly use the word “vacate”
in our remand order, and therefore did not provide the
district court with a “clean slate” or “unbundled package.”
Our decision sufficiently altered the sentence to have the
effect of vacating his sentence. As we have held, “when there
is an alteration in the components of a sentence, the entire
sentence is altered. If the alteration contains within itself
potential for permeating the whole sentence, the entire
sentence can be revisited . . . .” Martenson, 178 F.3d at 463(quoting Smith, 103 F.3d at 535 (affirming a trial court’s
complete resentencing after vacating one of defendant’s
three convictions)). Here, the elimination of the murder cross-
reference enhancement similarly permeated the entire sen-
tence because it eliminated the life sentence imposed by
the district court, leaving White’s sentence at 240 months,
thereby sufficiently disturbing the district court’s sentenc-
ing intent.
Most importantly, the guidelines explicitly preclude the
imposition of two enhancements which are based on the
same relevant conduct. See U.S.S.G. § 1B1.1 (“Where two
No. 03-2875 9
or more guideline provisions appear equally applicable, but
the guidelines authorize the application of only one such
provision, use the provision that results in the greater of-
fense level.”); see United States v. Szakacs, 212 F.3d 344,
353 (7th Cir. 2000) (double counting exists when enhance-
ments are premised on identical facts) (quoting United States
v. Haines, 32 F.3d 290, 293 (7th Cir. 1994)); United States
v. Austin, 54 F.3d 394, 403 (7th Cir. 1995) (same). There-
fore, once the district court chose to apply the murder cross-
reference, it was no longer empowered to consider the ob-
struction of justice enhancement. The district court based
the imposition of the murder cross-reference enhancement
on the findings that White lied to police officers and parti-
cipated in the cover-up of Willis’s murder—the same findings
of fact used for the obstruction of justice enhancement.
Our decision remanding stated that the district court’s
initial decision to apply the murder cross-reference was not
supported by sufficient factual findings. Thus, without a
remand order to the contrary, the district court was free to
determine whether an enhancement that it was previously
precluded from applying based on double counting implica-
tions could now be supported by the record.2
B. Application of Obstruction of Justice
Enhancement
White raises two challenges to the district court’s appli-
cation of the obstruction of justice enhancement to his sen-
tence. First he argues that the district court’s findings of
fact do not support the enhancement because they fail to
2
The district court properly resentenced White based on the
existing record consistent with the this court’s decision in
United States v. Wyss, 147 F.3d 631, 633 (7th Cir. 1998), which
holds that “the government [is] entitled to only one opportunity to
present evidence” on an issue for which it carries the burden of
proof at sentencing.
10 No. 03-2875
meet the requisite burden of persuasion. Second, he chal-
lenges the propriety of the very method through which those
facts were found.
1. Meeting Burden of Persuasion
The guidelines provide that an obstruction of justice
enhancement should be applied:
If (A) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the admini-
stration of justice during the course of the investi-
gation, prosecution, or sentencing of the instant
offense of conviction, and (B) the obstructive conduct
related to (i) the defendant’s 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.
Our prior opinion approved the district court’s finding
that White lied to authorities about his whereabouts on the
morning of and after the murder of the undercover in-
formant (Willis). Thompson, 286 F.3d at 960-61. We also
noted that the district court properly concluded that “White
participated in the cover-up because he often used the
name ‘Demarco,’ the same name used by the party who
scheduled the appointment to have the vehicle [in which
the murder took place] repaired at Mobile Jamzz” before it
could be examined by the police for evidence. Id. at 961 n.4.
Based upon this evidence, the district court upon remand
found that White had impeded law enforcement’s investiga-
tion, and applied the obstruction of justice enhancement
accordingly.
White argues that this evidence is insufficient to support
the obstruction of justice enhancement. However, if prop-
erly found, evidence establishing that White participated
in a cover-up of an undercover informant’s murder by both
No. 03-2875 11
lying under oath during his detention hearing about his
whereabouts the night of the murder, and assisting in the
attempted destruction of evidence, would certainly qualify
him for the obstruction of justice enhancement. Indeed,
White’s perjury alone—if properly found—may be sufficient
to warrant the enhancement. See United States v. White,
240 F.3d 656, 661 (7th Cir. 2001) (affirming obstruction of
justice enhancement when witness committed perjury by
flatly denying involvement in insurance fraud scheme);
United States v. Hickok, 77 F.3d 992, 1006 (7th Cir. 1996)
(“Perjury is a well-established example of conduct that war-
rants an enhancement for obstruction of justice.”) (internal
citations omitted).
Moreover, a legitimate finding that White had assisted in
the attempted destruction of evidence would also be inde-
pendently sufficient for the obstruction of justice enhance-
ment, as the application note highlights. U.S.S.G. § 3C1.1,
App. Note 4(d) (noting that “destroying or concealing or
directing or procuring another person to destroy or conceal
evidence that is material to an official investigation or
judicial proceeding” is an example of obstructive conduct).
White’s perjury coupled with his participation in the mur-
der’s cover-up would—if properly found—more than suf-
ficiently demonstrate that the district court did not clearly
err in applying the obstruction of justice enhancement.
2. Propriety of the Factual Findings—United States
v. Booker
However, as the repeated caveats above suggest, the ulti-
mate propriety of applying the obstruction of justice en-
hancement here turns on the legitimacy of the method in
which the facts supporting the enhancement were found.
Toward this end, White argues that the district court’s
application of the obstruction of justice enhancement to his
sentence violated his rights as interpreted in United States
12 No. 03-2875
v. Booker, 125 S. Ct. 738 (2005). Because he did not raise this
challenge before the district court (nor any related chal-
lenge invoking the Sixth Amendment, the since decided
Blakely v. Washington, 124 S. Ct. 2531 (2004), or Apprendi
v. New Jersey, 530 U.S. 466 (2000)), we review for plain
error. See United States v. Paladino, 401 F.3d 471, 481 (7th
Cir. 2005); United States v. Olano, 507 U.S. 725, 731 (1993).
“Under [the plain error] test, before an appellate court
can correct an error not raised at trial, there must be (1)
‘error,’ (2) that is ‘plain,’ and (3) that ‘affects substantial
rights.’ ” United States v. Cotton, 535 U.S. 625, 631 (2002)
(quoting Johnson v. United States, 520 U.S. 461, 466-67
(1997)). “If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error,
but only if (4) the error ‘seriously affects the fairness, in-
tegrity, or public reputation of judicial proceedings.’ ” Id.(quoting Johnson, 520 U.S. at 467).
We begin by assessing error. One error that White may
argue is that the district court violated his Sixth Amendment
right to a jury trial by increasing his sentence—via the
obstruction of justice enhancement—based on facts neither
admitted by himself nor proven to his jury beyond a reason-
able doubt. In United States v. Booker, the Supreme Court
made clear that “the Sixth Amendment as construed in
Blakely does apply to the Sentencing Guidelines.” 125 S.
Ct. at 746. Accordingly, under the formerly mandatory re-
gime, “[a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a
jury verdict must be admitted by the defendant or proved
to a jury beyond a reasonable doubt.” Id. at 756.
Indeed, both of the facts upon which the district court
justified the obstruction of justice enhancement—namely,
that White had (1) lied under oath during his detention
hearing about his whereabouts on the night of the murder
No. 03-2875 13
of the undercover informant; and (2) assisted in the at-
tempted destruction of evidence by scheduling an appoint-
ment to have the vehicle in which the murder took place
(the Yukon) repaired before it could be examined by the
police for evidence—were found solely by the district court.
Such sentencing in reliance on supplemental facts neither
admitted by White nor proven to his jury beyond a reason-
able doubt squarely violates our new understanding of the
Sixth Amendment as divined by Booker, and thereby
constitutes error.
The procedural posture of this case, however, presents an
interesting wrinkle in assessing the propriety of the facts
upon which the enhancement was based. The matter before
us is a successive appeal. As noted above, we have already
visited the findings upon which the district court based its
imposition of the obstruction enhancement in our prior
opinion. Thompson, 286 F.3d at 960-61 & n.4. While the
issue of the propriety of the facts found was before this
court on prior appeal, White did not raise a Sixth Amendment
challenge akin to that raised today.
We need not decide today, however, whether our prior
decision precludes our ability to assess today a Sixth
Amendment challenge to the propriety of these since settled
facts. Increasing sentence under the mandatory scheme
based on solely judge found facts is not the only error con-
templated by Booker. As the government concedes, the
mere mandatory application of the Guidelines—the district
court’s belief that it was required to impose a Guidelines
sentence—constitutes error. See Booker, 125 S. Ct. at 769
(holding that parties in respondent Fanfan’s case “may
seek resentencing under the system set forth in [Booker]”
though “Fanfan’s sentence d[id] not violate the Sixth
Amendment”); Paladino, 401 F.3d at 480 (finding Booker
error where a portion of defendant Velleff’s sentence “was
based on mandatory provisions of the sentencing guide-
lines”); United States v. Labastida-Segura, 396 F.3d 1140,
14 No. 03-2875
1142 (10th Cir. 2005) (“We must apply the remedial hold-
ing of Booker to [defendant’s] direct appeal even though his
sentence does not involve a Sixth Amendment violation.”).
What’s more, that error is plain. Olano, 507 U.S. at 734(“ ‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvi-
ous.’ ”); Johnson v. United States, 520 U.S. 461, 468 (1997)
(“[W]here the law at the time of trial was settled and clearly
contrary to the law at the time of appeal[,] it is enough that
an error be ‘plain’ at the time of appellate consideration.”)
(emphasis added).
In turning to the third and fourth prongs of the plain
error standard, we note that the difference between the two
elements “is not entirely clear.” Paladino, 401 F.3d at 481.
Under Paladino’s application of the plain error test in the
Booker context, the third element—providing that the error
must “affect substantial rights”—requires the error to have
been “prejudicial,” id., in that it “affected the outcome of
the district court proceedings,” Olano, 507 U.S. at 734. The
fourth element, on the other hand, by limiting reviewable
error to those which “seriously affect the fairness, integrity,
or public reputation of judicial proceedings,” requires that the
uncorrected error be “intolerable,” or result in a “miscarriage
of justice,” Paladino,401 F.3d at 481 (citing cases). While
an error cannot be intolerable without being prejudicial,
“[a]n error can be prejudicial without being intolerable, be-
cause it might be apparent that a retrial or a resentencing
would lead to the same result.” Id. “Here we can and have
predetermined that if the defendant has been prejudiced
by an illegal sentence, then allowing that illegal sentence to
stand would constitute a miscarriage of justice.” United States
v. Macedo, Nos. 02-3563 et al., 2005 WL 851501 (7th Cir.
Apr. 14, 2005); see also Paladino, 401 F.3d at 483 (“It is a
miscarriage of justice to give a person an illegal sentence
that increases his punishment, just as it is to convict an
innocent person.”); United States v. Pawlinski, 374 F.3d 536,
540-41 (7th Cir. 2004) (“[T]he entry of an illegal sentence is
No. 03-2875 15
a serious error routinely corrected on plain-error review.”).
What remains uncertain at this stage of our review, however,
is whether the district court, operating under it newfound
post-Booker discretion, would have sentenced the defendant
any differently.
This is not a “case[ ] in which one can be certain that the
judge would not have given a different sentence even if he
had realized that the guidelines were merely advisory.”
Paladino, 401 F.3d at 480. There are no “indicators” here
that might dissipate the “fog” that surrounds our un-
derstanding of “what the district judge would have done
with additional discretion.” Cf. United States v. Lee, 399
F.3d 864, 866 (7th Cir. 2005) (listing several indicators that
would suggest that the district court, notwithstanding its
broader, post-Booker discretion, would not sentence
differently). Here, with a final offense level of 42 and a
criminal history category II, White’s sentencing range was
360 months to life. The district court sentenced him to 460
months. That the sentencing judge imposed a sentence
higher than the guideline minimum tells us nothing, for “[a]
conscientious judge—one who took the guidelines seriously
whatever his private views—would pick a sentence relative
to the guideline range.” Paladino, 401 F.3d at 482 (empha-
sis added). Vested with broader discretion, district courts
may today find once mandated ranges wholly inapt, inex-
orably corrupting any sentence imposed relative to them.
Accordingly, so that we might complete our plain error
analysis, we, “while retaining jurisdiction of the appeal,
order a limited remand to permit the sentencing judge to
determine whether he would (if required to resentence)
reimpose his original sentence.” Id. at 484. Before reaching
this decision on remand,
(whether the judge’s conclusion is that he would, or
would not, adhere to the original sentence), ‘the
District Court should obtain the views of counsel,
at least in writing, but ‘need not’ require the pre-
16 No. 03-2875
sence of the Defendant, see Fed.R.Crim.P. 43(b)(3).
Upon reaching its decision (with or without a hear-
ing) whether to resentence, the District Court
should either place on the record a decision not to
resentence, with an appropriate explanation,’
United States v. Crosby, supra, at *13, or inform
this court of its desire to resentence the defendant.
(By ‘should’ in the quoted passage, we understand
‘must.’).
Paladino, 401 F.3d at 484. If the district court determines
that it would nonetheless reimpose the original sentence if
required to resentence, we will affirm the original sentence,
provided that the sentence is reasonable. Id. If the district
court determines that it would, with its greater discretion,
sentence White differently, we will vacate White’s original
sentence and remand his case for resentencing. Id.C. Due Process Claim
Finally, White argues that his Due Process rights were
violated by the district court’s decision to apply the ob-
struction of justice enhancement to his sentence and not
that of his co-defendant, Jones, when the district court found
that they both engaged in substantially identical conduct.
Jones was sentenced to 350 months in prison and White
was sentenced to 480 months. This court has explicitly re-
jected similar arguments. We have repeatedly stated, “a dis-
parity among co-defendants’ sentences is not a valid basis
to challenge a guideline sentence otherwise correctly calc-
ulated.” United States v. Simpson, 337 F.3d 905, 909 (7th Cir.
2003) (quoting United States v. Simmons, 218 F.3d 692, 696
(7th Cir. 2000)). White’s sentence was correctly calculated
and falls within the guidelines’ range of 360 months to life.
The propriety of Jones’s sentence is not relevant to White’s
appeal. We will not disturb the appealing defendant’s sen-
tence even when a co-conspirator’s sentence is lenient. See
No. 03-2875 17
United States v. McMutuary, 217 F.3d 477, 489-90 (7th Cir.
2000). The only time we will disturb a sentence based on an
unjustifiable disparity between co-defendants is if it
“actually creates a disparity between the length of the ap-
pellant defendant’s sentence and all other similar sentences
imposed nationwide.” Simpson, 337 F.3d at 909 (quoting
McMutuary, 217 F.3d at 490). White neither asserts nor
presents evidence that his sentence creates such a national
disparity. Therefore, he has not met his burden.
III. CONCLUSION
For the reasons stated above, we direct a limited REMAND
of White’s case in accordance with the procedure set forth
in this opinion, thus retaining appellate jurisdiction.
This opinion was circulated to the entire court before
issuance. All but one member of the court in regular active
service voted not to hear the case en banc.
Judge Easterbrook voted to hear it en banc.
EASTERBROOK, Circuit Judge, dissenting from the deci-
sion not to hear these appeals rehearing en banc. These
cases pose one of the transition problems in implementing
United States v. Booker, 125 S. Ct. 738 (2005). What hap-
pens when there has not been a violation of the sixth
amendment—because, for example, the only consideration
that raised the sentence is a prior conviction, see
Almendarez-Torres v. United States, 523 U.S. 224 (1998), or
the defendant has waived his right to submit any dispute
18 No. 03-2875
to the jury, see Shepard v. United States, 125 S. Ct. 1254,
1263 n.5 (2005); Blakely v. Washington, 124 S. Ct. 2531, 2541
(2004)—but the district judge treated the Guidelines as
conclusive? Booker knocks out 18 U.S.C. §3553(b)(1), which
makes the system mandatory, for all prosecutions, not just
those in which there is a constitutional problem. See 125 S.
Ct. at 768-69. This holding applies to all cases on direct
appeal. The opinions in Castillo and White put these pro-
positions together and hold that cases in which there is no
sixth amendment problem (and no misapplication of the
Guidelines either) should be treated just like those in
which the Constitution has been violated.
Yet one element of plain-error analysis is whether the
shortcoming seriously impairs the fairness, integrity, or
public reputation of judicial proceedings. United States v.
Olano, 507 U.S. 725, 734-37 (1993); Johnson v. United States,
520 U.S. 461, 468-69 (1997); Jones v. United States, 527
U.S. 373, 394-95 (1999); United States v. Vonn, 535 U.S. 55,
62-63 (2002); United States v. Cotton, 535 U.S. 625, 631-33
(2002); United States v. Dominguez Benitez, 124 S. Ct.
2333, 2339-40 (2004). This condition is not satisfied when
the district judge complied with all requirements of the
Constitution, statutes, and rules. See United States v.
Gonzalez-Huerta, 2005 U.S. App. LEXIS 5705 *21-32 (10th
Cir. Apr. 8, 2005) (en banc).
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005),
says that a sentence lengthened because of a constitutional
violation meets the plain-error standard; more time in pris-
on, caused by a constitutional wrong, is unjust. One cannot
say the same when there has been no violation of the
Constitution (or, indeed, of any other legal norm). The
Sentencing Guidelines are not themselves an engine of
wrong. They emphasize candor and consistency in sen-
tencing and have been applied about a million times since
1987. Schriro v. Summerlin, 124 S. Ct. 2519 (2004), holds
that sentences imposed in violation of another rule derived
No. 03-2875 19
from Apprendi v. New Jersey, 530 U.S. 466 (2000), are not
so likely to be unjust that the new rule must apply retroac-
tively on collateral review, and we held in McReynolds v.
United States, 397 F.3d 479 (7th Cir. 2005), that Booker
likewise does not govern on collateral review. If this is so
when the sixth amendment has been violated, what can be
the source of injustice when it has been obeyed?
Although the plain-error standard differs from the stand-
ard for retroactive application, whether an error gravely
undermines the reliability of the outcome is common to the
two inquiries. Given Schriro and opinions such as Edwards
v. United States, 523 U.S. 511 (1998), and United States v.
Watts, 519 U.S. 148 (1997), it would be unsound to assert
that applying the Guidelines is so problematic that relief is
apt under the plain-error standard. When every statute has
been enforced accurately and constitutionally, the fairness,
integrity, and public reputation of judicial proceedings are
unimpaired.
The disposition of United States v. Fanfan, which was
consolidated with Booker, does not bear on this issue. The
remedial majority’s penultimate paragraph says, in part:
In respondent Fanfan’s case, the District Court
held Blakely applicable to the Guidelines. It then
imposed a sentence that was authorized by the jury’s
verdict—a sentence lower than the sentence author-
ized by the Guidelines as written. Thus, Fanfan’s
sentence does not violate the Sixth Amendment.
Nonetheless, the Government (and the defendant
should he so choose) may seek resentencing under
the system set forth in today’s opinions.
125 S. Ct. at 769. This does not mean that applying the
Guidelines is wrongful even when the judge does not re-
solve any factual dispute. Quite the contrary. The reason
that Fanfan’s sentence did not violate the sixth amendment
was precisely that it did violate the Sentencing Reform Act
20 No. 03-2875
of 1984 and the Sentencing Guidelines. The jury found that
Fanfan had distributed 500 or more grams of cocaine. How
much more? The judge concluded (on a preponderance of
the evidence) that Fanfan was culpable for 2.5 kilograms of
powder cocaine plus 262 grams of crack. The top of the
Guideline range for 500 grams was 78 months; the range
for Fanfan’s relevant conduct (including his role as a leader
of a criminal organization) was 188 to 235 months. To
avoid any constitutional problem, the judge sentenced
Fanfan to 78 months’ imprisonment. The United States
appealed to the first circuit and filed a petition for certio-
rari before judgment, which the Court granted. So the case
was before the Court on the prosecutor’s complaint, not
Fanfan’s; the remand occurred because the sentence was
too low, not because it might have been too high; plain-
error review played no role in the decision.
Applying Paladino to no-constitutional-error situations
is inconsistent with the reason the remedial opinion in
Booker made the Guidelines advisory across the board. The
alternative was asymmetric: defendants would have been
free to argue for less time in every case, but when the top
of the Guideline range was favorable defendants could have
waived their sixth amendment rights and preserved that
benefit. The Court stated that Congress would have been
unlikely to adopt a one-sided approach. 125 S. Ct. at 768.
Yet the approach taken in Castillo and White implements
only the defendant-favoring portion of the Court’s remedy.
No defendant is placed at risk of a higher sentence by a lim-
ited Paladino remand. (It would be anachronistic to reply
that the prosecutor, too, could have appealed. Recall that
this is plain-error review, which is to say that neither side
noticed this issue until after the time for filing a notice of
appeal had expired. Until Booker a prosecutor would have
had no reason—and no statutory authority—to appeal from
a sentence that fell within a properly calculated Guideline
range. See 18 U.S.C. §3742(b).) That both sides have
No. 03-2875 21
enjoyed the even-handed application of a symmetric
Guidelines system is still another reason to say that no
injustice has occurred.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-3-05