United States v. Paladino, Robert D. , 401 F.3d 471 ( 2005 )

IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
________________________
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT D. PALADINO, et al.,
Defendants-Appellants.
__________________________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 852—William T. Hart, Judge.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RANDY VELLEFF ,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 398—Joan Humphrey Lefkow, Judge.
UNITED STATES OF AMERICA,
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 2
Plaintiff-Appellee,
v.
JOHN PEYTON ,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03 CR 10054—Joe Billy McDade, Judge.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARRELL TURNER,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:03–CR–22—Robert L. Miller, Jr., Chief Judge.
__________________________
Argued February 14, 2005—Decided February 25, 2005 *
__________________________
Before POSNER, WOOD, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. We have consolidated for decision
several criminal appeals, argued the same day, all of which
* This opinion is being released in typescript. A printed version will fol-
low.
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 3
present the key issue left open by the Supreme Court’s deci-
sion in Booker v. United States, 125 S. Ct. 738 (2005)—the
application of the plain-error doctrine to appeals from sen-
tences rendered under the federal sentencing guidelines be-
fore the Supreme Court ruled that they are advisory rather
than mandatory. Three of the cases present nonsentencing
issues as well, and we begin with them.
Paladino and his codefendants were convicted by a jury
of a variety of federal crimes arising out of a scheme to de-
fraud investors that succeeded in fleecing $11 million from
the victims. The scheme had two stages, but only the second,
which lasted from 1995 to 1997, generates nonsentencing is-
sues. Defendant Iles, whose function was to recruit the in-
vestors, to whom she promised absurd returns—more than
100 percent per week for at least 40 weeks—made a variety
of false representations. The one most significant to her ap-
peal is that she and James Wardell (who died before he could
be indicted) were reputable and experienced investment ad-
visors. In fact Iles had pleaded guilty to federal fraud
charges in 1988 and the following year had been banned by
the SEC from ever associating with members of the securi-
ties industry, while Wardell had been convicted in a state
court of theft by fraud in 1975, and in 1972 had consented to
an SEC order forbidding him to violate federal securities
laws in the offer and sale of stock in a corporation in which
he had been involved. The government was permitted to pre-
sent all these prior “bad acts” to the jury, and also to argue
that Iles knew about Wardell’s conviction and SEC bar order,
though all Wardell had told her, when she informed him of
her own SEC bar order, was that he, too, had had problems
with the SEC.
Rule 404(b) of the Federal Rules of Evidence forbids the
use of evidence of a defendant’s history of illegal or unethical
acts to prove that he is a person of bad character and likely
therefore to have committed the crime of which he is accused
in the present case, or perhaps some other, undetected crime
for which he should be punished. The government argues
that it presented the evidence of Iles’s and Wardell’s bad acts
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 4
for the innocent reason that those acts were so “inextricably
intertwined” with the conduct of which the defendants were
accused in this case that the jury needed to know the bad
acts in order to form a complete picture of that conduct.
United States v. Spaeni, 60 F.3d 313, 316 (7th Cir. 1995);
United States v. Ramirez, 45 F.3d 1096, 1102–03 (7th Cir.
1995). Such evidence can be proper to enable the jurors to
make sense of the evidence pertaining to the criminal activ-
ity of which the defendant is currently accused, United
States v. Gibson, 170 F.3d 673, 682 (7th Cir. 1999), and to
avoid puzzling them by making them think that facts impor-
tant to their understanding of the case are being concealed.
But those were not problems here. If the jurors never heard
anything about Iles’s and Wardell’s previous legal troubles, it
would not have occurred to them that they were missing
anything or have made any of the other evidence in the case
unintelligible.
The government’s fallback position is stronger—that
Iles’s failure to disclose Wardell’s and her histories was a
part of the scheme. But the government overreaches by arg u-
ing that anyone who solicits an investment is required, on
pain of criminal liability for failing to do so, to disclose any
previous conviction for fraud, or for that matter anything
else that might give an investor cold feet. If asked by the in-
vestor about such things, the solicitor would have to give a
truthful answer or be guilty of fraud. E.g., United States v.
Tadros, 310 F.3d 999, 1006 (7th Cir. 2002); United States v.
Ross, 77 F.3d 1525, 1543 (7th Cir. 1996); United States v.
Kinney, 211 F.3d 13, 17–19 (2d Cir. 2000). But to fail to vol-
unteer such information would be fraud only if potential in-
vestors would assume that someone soliciting an investment
would disclose such a history. We doubt that that would be a
reasonable assumption, and in any event the government
has made no effort to argue that it would be or to provide
cases that support its expansive notion of fraud.
It is true that a fiduciary (which Iles was, as we’ll see
when we come to the sentencing issues) is required to dis-
close facts material to his principal, e.g., Carr v. CIGNA Se-
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 5
curities, Inc., 95 F.3d 544, 547–48 (7th Cir. 1996); United
States v. Szur, 289 F.3d 200, 211–12 (2d Cir. 2002), and true
too that materiality implies merely that disclosure would
make a difference to the principal’s decision, Basic Inc. v.
Levinson, 485 U.S. 224, 231–32 (1988); TSC Industries, Inc.
v. Northway, Inc., 426 U.S. 438, 449 (1976); Castellano v.
Young & Rubicam, Inc., 257 F.3d 171, 180 (2d Cir. 2001),
and that most principals if they learned that their fiduciary
had been convicted of fraud would tell him to take a walk.
But pushed to its logical extreme, this reasoning would have
required Iles to preface every conversation with a customer
with a detailed recitation of everything in her personal his-
tory that might alarm or discourage him, on pain of criminal
punishment if she intentionally left something out. It would
also make a person who had ever been convicted of fraud a
leper in the investment business, even if she had not been
barred from the industry.
We need not pursue this issue; for what is incontestable
is that Iles’s history is evidence that the representations she
made to potential investors really were misleading. She had
represented to them that she was both reputable and experi-
enced, and by doing so had implied that she had a clean re-
cord, and certainly that she had not been barred from the se-
curities business for life almost a decade earlier, after being
convicted of criminal fraud. What made the representation
misleading was precisely her history; that history was there-
fore direct evidence of guilt rather than evidence merely of
bad character. United States v. Polichemi, 219 F.3d 698,
709–10 (7th Cir. 2000).
The judge should not, however, have permitted the evi-
dence of Wardell’s legal troubles to come in without evidence
that Iles actually knew about them. All Wardell told her was
that he had had problems with the SEC. Many members of
the securities business have had problems with the SEC that
did not result in their being barred from the business. The
SEC does not bring remedial proceedings against everyone
whom it investigates and it does not prevail in all the pro-
ceedings that it does bring. Anyone who had to defend him-
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 6
self against the agency would acknowledge having had prob-
lems with it even if he had been exonerated. The judge’s er-
ror, however, was harmless, because the evidence against
Iles, especially in light of our conclusion that her own previ-
ous fraud judgments were properly placed before the jury,
was compelling.
Defendant Paladino complains that he was forced to take
the stand by an erroneous evidentiary ruling. He had been
deposed years earlier in an SEC proceeding, and in the
criminal trial the judge allowed the government to present a
severely cropped version of the deposition in an effort to
demonstrate his guilty knowledge. Some of the deletions
were required in order to protect the rights of the other de-
fendants, see Bruton v. United States, 391 U.S. 123 (1968),
but not all. An issue of great importance to Paladino’s guilt
or innocence was whether he knew that money in a certain
account was money of investors (“invested money” or “in-
vestment money”)—which as soon as it was received was
checked out to him and the other defendants without ever
being invested—or proceeds of legitimate transactions
(“trade money”). Asked at the deposition about his knowl-
edge of the invested money, he said: “I learned that this
money that’s been coming in was investment money, and I
was totally surprised because I assumed this whole time that
this was trade money.” The government put a period after
“investment money” and deleted the rest of Paladino’s an-
swer. The difference between “I learned” and “I was sur-
prised to learn” is subtle but potentially important; if Pala-
dino wasn’t surprised to learn that investor money was being
misapplied, this would suggest that he had previous knowl-
edge of the fraud, which he denied.
There were other harmful deletions. For example,
handed during his deposition a “secured investor program
agreement,” Paladino said it “looks familiar” but added that
he hadn’t seen it until after the scheme had ended and the
SEC had filed suit. The judge allowed the government to de-
lete the addition even though, since Paladino’s guilt de-
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 7
pended on what he knew when, the date on which he first
saw the document was crucial.
In permitting the government to make this and other
misleading deletions, the trial judge violated Fed. R. Evid.
106, which provides, so far as bears on this case, that when
one party introduces in evidence a part of a writing, his op-
ponent “may require the introduction…of any other
part…which ought in fairness to be considered contempora-
neously with it.” See United States v. Glover, 101 F.3d 1183,
1189 (7th Cir. 1996); United States v. Walker, 652 F.2d 708(7th Cir. 1981); United States v. Burns, 162 F.3d 840, 852–53
(5th Cir. 1998); United States v. Sutton, 801 F.2d 1346,
1368–70 (D.C. Cir. 1986). But the judge’s error cannot help
Paladino. He took the stand and could if he had wanted read
to the jury the parts of the deposition that the government
had suppressed. Cf. United States v. Haddad, 10 F.3d 1252,
1259 (7th Cir. 1993); United States v. Sweiss, 814 F.2d 1208,
1212 (7th Cir. 1987). He did not do this; instead he simply
testified to his understanding of the documents about which
the government had questioned him.
That was a tactical error. His testimony would have been
more effective—in part because it would have demonstrated
the government’s mendacity—had he exposed the govern-
ment’s misleading editing. But as he had an opportunity to
correct the record, he is left to argue only that he would not
have taken the stand had he not been compelled by the trial
judge’s erroneous ruling (and erroneous it was) to rectify the
government’s misleading editing; he concludes that the rul-
ing infringed his Fifth Amendment right not to be compelled
to testify. But the Supreme Court has held that there is no
compulsion in such a case, since the defendant has the option
of refusing to testify and instead, if he is convicted, of obtain-
ing appellate correction of the erroneous evidentiary ruling
and with it a new trial. Luce v. United States, 469 U.S. 38,
41–43 (1984); see also Ohler v. United States, 529 U.S. 753,
758–59 (2000); United States v. Saunders, 359 F.3d 874,
877–78 (7th Cir. 2004); United States v. Wilson, 307 F.3d 596(7th Cir. 2002); United States v. Burrell, 963 F.2d 976, 991–
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 8
92 (7th Cir. 1992); United States v. Doyle, 771 F.2d 250, 254–
55 (7th Cir. 1985); United States v. Bond, 87 F.3d 695, 700–
01 (5th Cir. 1996). The specific evidentiary error in Luce was
improper impeachment with a prior conviction, but the prin-
ciple is the same: “to raise and preserve for review the claim
of improper impeachment with a prior conviction, a defen-
dant must testify,” 469 U.S. at 43; for “claim of improper im-
peachment with a prior conviction” read “claim of violation of
Rule 106.”
This rule puts the defendant to a hard tactical choice.
But the alternative would be to give him two bites at the ap-
ple: testify, and try to win an acquittal; if that fails, appeal
and get a new trial on the basis of the judge’s ruling. Freytag
v. Commissioner, 501 U.S. 868, 895 (1991). The Supreme
Court prefers the first of these unsatisfactory resolutions to
the second, and we are bound.
The only other nonsentencing issues in the appeal by
Paladino and his confederates have no possible merit. They
are Paladino’s complaint about a variance between indict-
ment and proof; his due process claim, which is based on an
instruction; and Law’s complaint about the judge’s refusal to
sever his trial from that of his codefendants. We move on,
therefore, to Peyton’s appeal. He was convicted by a jury of
being a felon in possession of a firearm, namely a revolver
found under the driver’s seat of his car. A police officer, testi-
fying as an expert witness on fingerprint evidence, said he’d
been unable to find any fingerprints on the gun that could be
used to identify who might have touched it. In answer to a
question by the prosecutor, he testified that it was common
to be unable to find usable fingerprints “at a crime scene or
on an object.” After the completion of the direct and cross-
examination of the officer, the judge asked him how many
times he’d tried to find fingerprints on handguns, and the
officer replied, “Over a hundred,” whereupon the judge re-
marked: “Okay. Contrary to what we might see on TV, is it
likely or not likely to find latent prints on handguns”—to
which the officer answered that it was unlikely.
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 9
What this line of inquiry had to do with Peyton’s guilt is
obscure. That there was no fingerprint evidence meant sim-
ply that there was no fingerprint evidence. Had Peyton’s fin-
gerprints been found on the gun, this would have helped the
government and if someone else’s fingerprints had been
found on the gun, this would have helped Peyton because he
testified that others had access to his car. Since no finger-
prints were found, neither side was helped; and we can’t see
what difference it makes whether failure to find fingerprints
on a gun is common or uncommon. In fact it is extremely
common: “successful development of latent prints on fire-
arms is difficult to achieve. In reality, very few identifiable
latent prints are found on firearms, a fact that has been dis-
cussed in both literature and the judicial system.” Clive A.
Barnum & Darrell R. Klasey, “Factors Affecting the Recovery
of Latent Prints on Firearms,” Prosecutor, Jan./Feb. 1998, p.
32.
The issue, rather, is whether by seeking to clarify, and in
fact reinforcing, the testimony of a government witness, the
district judge signaled to the jury that he thought the defen-
dant was guilty. Such signaling is improper. United States v.
Martin, 189 F.3d 547, 553 (7th Cir. 1999); Collins v. Kibort,
143 F.3d 331, 336 (7th Cir. 1998); United States v. Davis, 285
F.3d 378, 381–82 (5th Cir. 2002); United States v. Tilghman,
134 F.3d 414, 416 (D.C. Cir. 1998). But since the question
how often fingerprints are found on guns was of no actual
relevance to Peyton’s guilt, it is hard to believe that the jury
was swayed, gratuitous though the judge’s intervention was.
In any event, the evidence of Peyton’s guilt was conclusive,
so the judge’s error was harmless. Peyton admitted to the po-
lice that he had known the gun was in his car, and since he
was driving the car he was in possession of the gun. The fact
that, if he was believed, he had not placed the gun there was
irrelevant. If someone hands you a gun and you put it in
your pocket, you possess it; and it is the same here. See
United States v. Lane, 267 F.3d 715, 718–19 (7th Cir. 2001);
United States v. Wetwattana, 94 F.3d 280, 283–84 (7th Cir.
1996); United States v. Garrett, 903 F.2d 1105, 1110–11 (7th
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 10
Cir. 1990); United States v. Teemer, 394 F.3d 59, 64 (1st Cir.
2005).
Turner was charged with possessing a revolver on Janu-
ary 30, 2003, in furtherance of a drug crime, and also with
possessing a shotgun on the same day in furtherance of an-
other drug crime. He received separate, consecutive sen-
tences for the two crimes under 18 U.S.C. § 924(c), which
punishes using or carrying a firearm “during and in relation
to” a “crime of violence or drug trafficking crime.” United
States v. Cappas, 29 F.3d 1187, 1190–91 (7th Cir. 1994),
holds that the offense defined by that statute is actually the
use of one or more guns during or in relation to a drug of-
fense, so had Turner used two guns during one offense he
would have been guilty of only one violation of section 924(c).
See also United States v. White, 222 F.3d 363, 373–74 (7th
Cir. 2000); United States v. Taylor, 13 F.3d 986, 992–94 (6th
Cir. 1994); United States v. Lindsay, 985 F.2d 666, 674 (2d
Cir. 1993); United States v. Smith, 924 F.2d 889, 894–95 (9th
Cir. 1991). But he was charged with two separate drug
crimes, albeit committed on the same day, each involving a
gun (different guns, though that is of no significance). In the
morning, armed with a revolver, he sold crack to one person.
In the afternoon, armed with a shotgun, he sold crack to an-
other person. These were unquestionably separate drug of-
fenses, and therefore his carrying of a gun during each of
them constituted two violations of section 924(c). Compare
United States v. Cappas, supra, 29 F.3d at 1190; United
States v. Johnson, 977 F.2d 1360, 1376–77 (10th Cir. 1992);
United States v. Privette, 947 F.2d 1259, 1262–63 (5th Cir.
1991). He complains that the instructions did not clearly re-
quire the jury to tie each gun to a different drug transaction.
They indeed were unclear, but the evidence was unequivocal
and so any error in the instructions was harmless.
Velleff raises only sentencing issues; and so it is to the
sentencing issues presented by these consolidated appeals
that we now turn. We begin with Paladino and his codefen-
dants. He was sentenced to 72 months in prison and also or-
dered to pay restitution of $11–plus million, as were his co-
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 11
defendants. Iles was sentenced to 78 months, Law to 84, and
Benson and Peitz to 188. The government concedes that all
these sentences violated the Sixth Amendment right to trial
by jury in federal criminal cases, as interpreted in Booker,
because in all of them the judge had enhanced the sentences
(for such aggravating circumstances as being an organizer of
the fraudulent conspiracy or a supervisor of others involved
in it, or abusing a position of trust) on the basis of facts not
determined by the jury. The government contends, and we
agree, that under the guidelines regime overthrown by
Booker the sentences would have been lawful.
There are only two serious challenges to the enhance-
ments. One is by Peitz, who claims that his trial lawyer gave
him ineffective assistance by failing to argue that he should
not be responsible for acts committed by his coconspirators
within the scope of the conspiracy after he was expelled from
it. The claim is premature, because there is no affidavit or
other evidence from the lawyer indicating why he did not
make the argument. He may well have had good tactical rea-
sons. Without meaning to prejudice Peitz’s claim should he
choose to make it the basis of a motion under 28 U.S.C. §
2255, we remind him that a defendant who sets in motion a
train of events foreseeably inflicting losses that in fact mate-
rialize cannot escape responsibility by quitting, let alone by
being expelled from, the conspiracy. United States v. Patel,
879 F.2d 292, 294 (7th Cir. 1989); United States v. Schweihs,
971 F.2d 1302, 1323–24 (7th Cir. 1992); United States v.
Melvin, 91 F.3d 1218, 1226–27 (9th Cir. 1996).
The issue is not whether reporting the conspiracy to the
authorities is the only way of withdrawing from a conspiracy;
it is merely one way. United States v. Pandiello, 184 F.3d
682, 687 (7th Cir. 1999); United States v. Patel, 879 F.2d 292(7th Cir. 1989); United States v. Borelli, 336 F.2d 376, 388
(2d Cir. 1964) (Friendly, J.). The issue is the form of with-
drawal that will limit a conspirator’s liability for losses that
his own activity made more probable. As we explained in the
Patel case, “having set in motion a criminal scheme, a con-
spirator will not be permitted by the law to limit his respon-
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 12
sibility for its consequences by ceasing, however definitively,
to participate. Such cessation may or may not be effective
withdrawal in a lay sense, but this is one of those places
where the law uses a word in a special sense. You do not ab-
solve yourself of guilt of bombing by walking away from the
ticking bomb. And similarly the law will not let you wash
your hands of a dangerous scheme that you have set in mo-
tion and that can continue to operate and cause great harm
without your continued participation.” 879 F.2d at 294. By
communicating his withdrawal to the other members of the
conspiracy, a conspirator might so weaken the conspiracy, or
so frighten his conspirators with the prospect that he might
go to the authorities in an effort to reduce his own liability,
as to undermine the conspiracy. Peitz neither informed on
the conspiracy so that the government could apprehend the
other conspirators and by doing so prevent it from inflicting
the losses that his own conduct had set the stage for, nor
took any other measure to weaken the conspiracy; and so he
remained liable for foreseeable losses inflicted by the con-
spiracy after his expulsion.
The other challenge to an enhancement is by Iles, who
challenges the finding that she abused a position of trust.
The finding is based on evidence that she invited potential
investors to entrust her with their money, assuring them
that it would be safe in her hands. By establishing a fiduci-
ary relationship with them she acquired a position of trust
that she abused, as in United States v. Frykholm, 267 F.3d
604, 612–13 (7th Cir. 2001).
Peyton was sentenced to 180 months in prison, the statu-
tory minimum because of his recidivist status as determined
by the trial judge. His only challenge to the sentence is that
the facts underlying the determination of that status were
found by the judge rather than by the jury, and the challenge
fails under Harris v. United States, 536 U.S. 545 (2002); cf.
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
The government cross-appealed, complaining about the
judge’s departing downward from the guidelines range of 235
to 293 months to the statutory minimum, but it later moved
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 13
to withdraw the appeal and we granted the motion. The dis-
trict judge had departed downward on two grounds: that
Peyton had provided impressive evidence of rehabilitation,
during the year in which he was free on bail prior to his sen-
tencing, by abstaining from alcohol, living amicably with his
wife, holding a steady job, and counseling his children to
avoid following in his criminal footsteps, and also that his
criminal history overstated his recidivist proclivities because
most of his prior crimes had been committed during a single
spree. The government argued in its cross-appeal that the
facts did not justify such a departure from the guidelines
range, and this may be correct (we need not decide) under
the rules that prevailed when the guidelines were manda-
tory. But now we know that the guidelines are advisory, and
so the question is whether, if the judge again resentenced
Peyton to 180 months on the same ground on which he based
the original sentence, we would reverse on the ground that
the 180-month sentence was unreasonable. Under the new
sentencing regime the judge must justify departing from the
guidelines, and the justification has to be reasonable, but we
cannot think on what basis a 15-year sentence for Peyton,
who was 34 years old when sentenced, could be thought un-
reasonably short. The issue is academic, since the cross-
appeal has been dismissed. But for future reference it is
worth noting that there are cases 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 advi-
sory.
Turner was sentenced to 613 months in prison. A sub-
stantial portion of the sentence was based on findings by the
judge, but not the jury, regarding the quantity of crack that
he had sold and other circumstances of his crime. Velleff was
sentenced to 430 months for robbery and for drug and gun
offenses. Some of the time was due to a recidivist enhance-
ment not affected by Booker, which did not overrule Almen-
darez-Torres, but some was based on mandatory provisions
of the sentencing guidelines.
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 14
Had the judgments become final before the Supreme
Court decided Booker, the defendants would be out of luck,
because Booker is not retroactive. McReynolds v. United
States, 2005 WL 237642 (7th Cir. Feb. 2, 2005); see also
Green v. United States, 2005 WL 237204, at *1 (2d Cir. Feb.
2, 2005) (per curiam); In re Anderson, 2005 WL 123923, at
*3–4 (11th Cir. Jan. 21, 2005). Had the defendants raised a
Booker issue in the district court, we would review the reso-
lution of the issue in the ordinary way. But because they
failed to do so, and acknowledge that our review is for “plain
error” only, we must decide whether the sentencing errors of
which they complain were indeed “plain.”
Since all the sentences were within the sentencing range
that Congress had created for these defendants’ conduct, the
district judge could give them identical sentences without
violating the Sixth Amendment. The government argues
that, since the defendants cannot prove otherwise, the
judges’ error in thinking themselves bound by the guidelines
was not a plain error, and so we should affirm the sentences.
An error is plain, first of all, if it is clearly an error, and
that criterion is satisfied in cases such as these after Booker.
But it must also affect the defendant’s “substantial rights”
and, in addition, “seriously affect[] the fairness, integrity, or
public reputation of judicial proceedings.” Johnson v. United
States, 520 U.S. 461, 466–67 (1997); see also United States v.
Young, 470 U.S. 1, 15–16 (1985); United States v. Esterman,
324 F.3d 565, 569–73 (7th Cir. 2003); United States v. Nance,
236 F.3d 820, 825–26 (7th Cir. 2000); United States v. Bren-
nan, 395 F.3d 59, 71 (2d Cir. 2005). This last criterion is
usually equated to causing a “miscarriage of justice,” United
States v. Frady, 456 U.S. 152, 163 n. 14 (1982); United States
v. Allen, 390 F.3d 944, 947–48 (7th Cir. 2004); United States
v. Lechuga, 994 F.2d 346, 351 (7th Cir. 1993) (en banc);
United States v. Bradley, 390 F.3d 145, 152 (1st Cir. 2004),
that is (in the context of the guilt phase of the criminal pro-
ceeding), to creating a substantial risk of convicting an inno-
cent person, since such a conviction certainly challenges the
fairness, integrity, and public reputation of judicial proceed-
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 15
ings. The reason for the heavier burden of overturning a con-
viction or sentence when the defendant failed to advance the
ground for his challenge in the district court is the prejudice
to the government from having been deprived of an opportu-
nity to meet the challenge, and the additional work piled on
the district court of conducting further proceedings that
would have been unnecessary had the defendant advanced
his objection to conviction or sentence in a timely fashion.
The question is how much heavier the burden of over-
turning is. The difference between the “substantial rights”
and “fairness, integrity, or public reputation” elements of the
plain-error standard is not entirely clear. One possibility,
suggested by United States v. Olano, 507 U.S. 725, 734–35
(1993), and the numerous cases that speak in terms of “mis-
carriage of justice,” is that the first element merely requires
prejudice, in the sense that the verdict might have been dif-
ferent, whereas the second requires confidence that if the er-
ror is not corrected the result will be intolerable, such as the
conviction of an innocent person or subjecting a guilty person
to an illegally long sentence. An error can be prejudicial
without being intolerable, because it might be apparent that
a retrial or a resentencing would lead to the same result.
Johnson v. United States, supra, 520 U.S. at 468–70, the ca-
nonical modern statement of the plain-error standard, sug-
gests that “substantial rights” may mean simply important
rather than merely technical rights and that “fairness, integ-
rity, and public reputation” may refer simply to prejudice,
that is, the likelihood that the verdict, or sentence, chal-
lenged on appeal was actually affected by the error. Yet
United States v. Dominguez Benitez, 124 S.Ct. 2333, 2339–41
(2004), tacks back toward the Olano approach. This differ-
ence in understandings of the plain-error standard, if more
than verbal, might be important in some cases, but not in the
cases before us, for there may have been plain error here
even under the more stringent reading, which requires proof
of a miscarriage of justice in the sense that we have indi-
cated.
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 16
We do not have a question of guilt or innocence; the de-
fendants are guilty. The issue is the meaning of plain error
in the context of an illegal sentence. The government’s basic
position is that if a sentence was legal before Booker, it can-
not be plainly erroneous; because the guidelines remain
valid, albeit demoted to being merely advisory, a sentence
that complies with them would be very unlikely to be re-
versed. The argument rests on a misunderstanding of the
difference between the guilt phase of a case and the punish-
ment phase. Guilt is either-or; the defendant is either guilty
or innocent. If an error is committed and the defendant is
convicted, the appellate court has only to consider whether
the defendant would probably have been acquitted had the
error not occurred. If so—if the error may well have precipi-
tated a miscarriage of justice (which the conviction of an in-
nocent person is)—it is a plain error and the defendant is en-
titled to a new trial. But sentencing is not either-or; it is the
choice of a point within a range established by Congress, and
normally the range is a broad one. There are exceptions, no-
tably where the choice is between death and prison; then, as
in Jones v. United States, 527 U.S. 373, 402–05 (1999), it
may be feasible for the appellate court to determine that de-
spite the error the choice would have been the same. Cf.
United States v. Cotton, 535 U.S. 625, 633–34 (2002). That is
not true here; here, unless any of the judges in the cases be-
fore us had said in sentencing a defendant pre-Booker that
he would have given the same sentence even if the guidelines
were merely advisory (which none of the judges did say), it is
impossible for a reviewing court to determine—without con-
sulting the sentencing judge (a pregnant qualification, as we
are about to see)—whether the judge would have done that.
The government argues that if, as happened in several of
the cases, the judge imposed a sentence higher than the
guideline minimum, this shows that he wouldn’t have im-
posed a lighter sentence even if he had known the guidelines
were merely advisory. United States v. Bruce, 2005 WL
241254, at *18 (6th Cir. Feb. 3, 2005). We disagree. A consci-
entious judge—one who took the guidelines seriously what-
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 17
ever his private views—would pick a sentence relative to the
guideline range. If he thought the defendant a more serious
offender than an offender at the bottom of the range, he
would give him a higher sentence even if he thought the en-
tire range too high.
Even in cases in which there is a broad sentencing range,
it may sometimes be possible for an appellate court to be con-
fident that the sentencing judge would have given the sen-
tence he did even if he had not misunderstood the legal effect
of the guidelines. It would be the mirror image of Peyton’s
case, where we expressed confidence that the judge would
not have imposed a heavier sentence had he known the
guidelines were not binding; for he gave Peyton a term of
imprisonment that was not only four and a half years below
the lowest point in the applicable guideline range but was
the lightest sentence that the applicable statute permitted
him to give. Similarly, if a judge were to impose a sentence
at the statutory maximum and say that if he could he would
have imposed an even longer sentence, there would be no ba-
sis for thinking that if he had known that the sentencing
guidelines are merely advisory he would have given the de-
fendant a lighter sentence.
But if as in the cases before us the sentencing judge
might well have decided to impose a lighter sentence than
dictated by the guidelines had he not thought himself bound
by them, his error in having thought himself bound may
have precipitated a miscarriage of justice. 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); United States v. Newman, 965 F.2d 206, 213 (7th Cir.
1992); United States v. Syme, 276 F.3d 131, 158 (3d Cir.
2002); United States v. Portillo-Mendoza, 273 F.3d 1224,
1228 (9th Cir. 2001); compare United States v. Moyer, 282
F.3d 1311, 1319 (10th Cir. 2002). As we said in Pawlinski,
“the entry of an illegal sentence is a serious error routinely
corrected on plain-error review.” 374 F.3d at 541. To tell a
defendant we know your sentence would have been 60
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 18
months shorter had the district judge known the guidelines
were merely advisory, because he’s told us it would have
been—but that is your tough luck and you’ll just have to
stew in prison for 60 additional months because of an ac-
knowledged violation of the Constitution—would undermine
the fairness, the integrity, and the public repute of the fed-
eral judicial process. United States v. Davis, 2005 WL
334370, at *8 (3rd Cir. Feb. 11, 2005); United States v.
Ameline, 2005 U.S. App. LEXIS 2032, at *18-20 (9th Cir.
Feb. 9, 2005), amended, 2005 U.S. App. LEXIS 2178 (9th Cir.
Feb. 10, 2005); United States v. Oliver, 2005 WL 233779, at
*8 (6th Cir. Feb. 2, 2005); United States v. Hughes, 396 F.3d
374, 381 (4th Cir. 2005). The sentencing phase of a prosecu-
tion is not to be taken lightly, as we know from Glover v.
United States, 531 U.S. 198 (2001), where the Supreme
Court rejected this court’s holding in Durrive v. United
States, 4 F.3d 548, 550–51 (7th Cir. 1993), that an error by
counsel that resulted in a higher sentence for his client did
not violate the right to effective assistance of counsel unless
the higher sentence was unfair. See also United States v.
Adams, 252 F.3d 276, 282–89 (3d Cir. 2001).
The equal and opposite error is to assume that every sen-
tence imposed in violation of the Sixth Amendment and
therefore of Booker is plainly erroneous and thus automati-
cally entitles the defendant to be resentenced. That is the er-
ror committed by the Sixth Circuit in United States v. Oliver,
supra, at *8, and the Fourth Circuit in United States v.
Hughes, supra, 396 F.3d at 380–81. What these courts over-
looked is that if the judge would have imposed the same sen-
tence even if he had thought the guidelines merely advisory
(in which event there would have been no Sixth Amendment
violation), and the sentence would be lawful under the post-
Booker regime, there is no prejudice to the defendant.
The only practical way (and it happens also to be the
shortest, the easiest, the quickest, and the surest way) to de-
termine whether the kind of plain error argued in these
cases has actually occurred is to ask the district judge. We
agree, therefore, with the Second Circuit’s ruling in United
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 19
States v. Crosby, 2005 WL 240916, at *11 (2d Cir. Feb. 2,
2005), that what an appellate court should do in Booker
cases in which it is difficult for us to determine whether the
error was prejudicial is, while retaining jurisdiction of the
appeal, order a limited remand to permit the sentencing
judge to determine whether he would (if required to resen-
tence) reimpose his original sentence. See also United States
v. Williams, 2005 WL 425212 (2d Cir. Feb. 23, 2005). If so,
we will affirm the original sentence against a plain-error
challenge provided that the sentence is reasonable, the stan-
dard of appellate review prescribed by Booker. 125 S. Ct. at
765. The proviso is important; the mere reimposition of the
original sentence does not insulate it from appellate review
under the new standard.
If, on the other hand, the judge states on limited remand
that he would have imposed a different sentence had he
known the guidelines were merely advisory, we will vacate
the original sentence and remand for resentencing. In formu-
lating the statement (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 presence of the Defendant,
see Fed.R.Crim.P. 43(b)(3). Upon reaching its decision (with
or without a hearing) whether to resentence, the District
Court should either place on the record a decision not to re-
sentence, with an appropriate explanation,” United States v.
Crosby, supra, at *13, or inform this court of its desire to re-
sentence the defendant. (By “should” in the quoted passage
we understand “must.”) We will then vacate the sentence
and, “with the Defendant present, [the district court shall]
resentence [the defendant] in conformity with the SRA [and]
Booker/Fanfan,…including an appropriate explanation, see §
3553(c).” Id. Our procedure is not identical to that set forth
in Crosby, though it is very close. Crosby envisages the dis-
trict judge as vacating the original sentence if the judge
wants to resentence the defendant. Under our procedure,
since we retain jurisdiction throughout the limited remand,
we shall vacate the sentence upon being notified by the judge
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 20
that he would not have imposed it had he known that the
guidelines were merely advisory.
The Sixth Circuit, in United States v. Milan, 2005 WL
309934 (6th Cir. Feb. 10, 2005), rejected Crosby on the
ground that the Supreme Court in Booker had remanded the
case for resentencing. But in so ruling the Sixth Circuit over-
looked the fact that the government had waived the argu-
ment that Booker’s appeal was governed by the plain-error
standard, as we had noted in our decision in Booker, which
the Supreme Court affirmed. United States v. Booker, 375
F.3d 508, 515 (7th Cir. 2004). The Supreme Court made no
ruling, express or implied, on the proper standard of plain-
error analysis in cases such as this.
The Eleventh Circuit, while agreeing with the Second
that it is impossible for a reviewing court to know what sen-
tence a district judge would have given had he known the
guidelines were merely advisory, concluded that this means
that a defendant in such a case cannot show that his sub-
stantial rights have been affected; cannot, therefore, estab-
lish plain error. United States v. Rodriguez, 2005 WL 272952(11th Cir. Feb. 4, 2005). Given the alternative of simply ask-
ing the district judge to tell us whether he would have given
a different sentence, and thus dispelling the epistemic fog,
we cannot fathom why the Eleventh Circuit wants to con-
demn some unknown fraction of criminal defendants to serve
an illegal sentence. Crosby is the middle way between plac-
ing on the defendant the impossible burden of proving that
the sentencing judge would have imposed a different sen-
tence had the judge not thought the guidelines mandatory
and requiring that all defendants whose cases were pending
when Booker was decided are entitled to be resentenced,
even when it is clear that the judge would impose the same
sentence and the court of appeals would affirm.
To summarize, we affirm all the convictions and Peyton’s
sentence; we direct a limited remand of the remaining sen-
tences in accordance with the procedure set forth above, thus
retaining appellate jurisdiction.
Nos. 03–2296, 03–2383–2386, 04–1951, 04–2339, 04–2378 21
Because this opinion establishes a new rule for the cir-
cuit, it was circulated to the entire court before issuance. 7th
Cir. R. 40(e). All but two members of the court in regular ac-
tive service voted not to hear the case en banc. Judges Ripple
and Kanne voted to hear it en banc.
Nos. 03-2296, 03-2383–03-2386, 04-1951, 04-2339, 04-2378 22
RIPPLE , Circuit Judge, dissenting from the denial of
rehearing en banc. In the few short weeks since the Supreme
Court’s decision in United States v. Booker, 125 S. Ct. 738(2005), the courts of appeals across the Country have produced a
significant number of opinions setting forth a broad spectrum of
approaches designed to implement the Supreme Court’s
decision. The panel opinion before us sets forth the holdings of
the first generation of those various cases and then presents a
variation of one. Today’s panel opinion thus initiates the second
generation of post-Booker opinions, variations on the themes set
forth in the first generation of opinions. No doubt, before the
vernal equinox arrives, these second generation opinions will
produce a further variation and a third generation of opinions
will be upon us. Complexity will complicate complexity. The
companies that produce the reports of our opinions will be
delighted; the notes and comments editors of the Nation’s law
reviews will have sufficient fodder for all of next year’s crop of
aspiring editors--and the federal courts will raise serious doubts
about their capacity to govern.
Is this the course that the Supreme Court expected
would follow its pronouncement in Booker? Are we to attribute
to the Court a desire that the Nation’s intermediate courts of
appeals develop elaborate and diverse approaches to Booker’s
holding. There are, no doubt, times when a Supreme Court
decision is intended to encourage intermediate appellate courts
to address unresolved issues and for the intermediate courts’
resolution of those issues to percolate to the Supreme Court.
But the situation presented by Booker is hardly one. The entire
federal criminal justice system came to a standstill in
anticipation of the Court’s decision in Booker. Now that the
Court has ruled, it is time to implement its decision--
immediately and forthrightly.
As a threshold matter, then, we ought to pause and
reflect on the reason for this plethora of diverse approaches,
churned out by the courts at a pace that obviously has precluded
Nos. 03-2296, 03-2383–03-2386, 04-1951, 04-2339, 04-2378 23
the sort of reflection and open collegial consultation that ought
to be part and parcel of the process of deciding an appellate
case.
One possible reason for such a judicial behavior pattern
would be the novelty of the Supreme Court’s decision.
However, we are not confronted with such a once-in-a-century
situation. The situation before us is not unique: We simply
must implement a decision that holds that the sentencing
procedure employed in the federal courts is unconstitutional
because it denies the right to a jury trial. We are asked to see
that individuals illegally sentenced to prison are relieved of the
burden of serving a sentence imposed under such an
unconstitutional system.
In my view, the approach formulated by the panel suffers
from two basic infirmities. First, as Judge Kanne convincingly
points out, the abbreviated “quick look” required of a district
court is hardly a substitute for the sentencing process that the
Supreme Court now has said is mandated by our Constitution.
Until the district court undertakes a new sentencing process--
cognizant of the freedom to impose any sentence it deems
appropriate as long as the applicable guidelines range and the
18 U.S.C. § 3553(a) factors are considered–-the district court
cannot accurately assess whether and how its discretion ought
to be exercised. The panel’s holding requires the court to pre-
judge and to pre-evaluate evidence it has not heard. Sentencing
after Booker will raise subtle issues as to how much emphasis
ought to be given to particular facts and circumstances. This
task can be accomplished competently only after hearing
witnesses and seeing the evidence. In short, what the panel
substitutes for the usual judicial reaction to an
unconstitutionally-imposed sentence is a process that simply is
inadequate to the task.
In all too many instances, the process scripted by the
panel will serve as an invitation for the district court to give
Nos. 03-2296, 03-2383–03-2386, 04-1951, 04-2339, 04-2378 24
only a superficial look at the earlier unconstitutionally-imposed
sentence. The constitutional right at stake hardly is vindicated
by a looks-all-right-to-me assessment by a busy district court.
Indeed, if we wanted to drag our collective judicial feet and
ensure that the Supreme Court’s decision had minimal impact
(a motivation I certainly do not attribute to my colleagues), it
would be difficult to come up with a better device than the one
crafted by the panel opinion.1
In addition to mandating an enfeebled mechanism for
the correcting of the unconstitutional process identified by the
Supreme Court, the panel opinion also has introduced into our
decisions a new rigidity with respect to our formulation of the
plain error doctrine--a rigidity that I fear my colleagues will
regret long after the “Booker cases” are a faded memory.
The Supreme Court has recognized that “[n]ormally,
although perhaps not in every case, the defendant must make a
specific showing of prejudice to satisfy the ‘affecting substantial
rights’ prong of Rule 52(b).” United States v. Olano, 507 U.S.
722, 735 (1993) (emphasis supplied). However, we have never
required this specific showing of prejudice in circumstances in
which the error has denied the defendant a constitutionally-
mandated process and when the outcome of that process cannot
be known until the process actually takes place. Rather, in such
contexts, we have ordered resentencing when a distinct
possibility exists that the error influenced the district court’s
selection of a particular sentence. For instance, we have
remanded sentences that fell in the overlap of an erroneously
applied sentencing range and the correct guidelines range,
“‘unless we have reason to believe that the error did not affect
the district court’s selection of a particular sentence.’” Emezuo
1
Cf. United States v. Williams, No. 04-2882, slip op. at
16 (2d Cir. Feb. 23, 2005) (defending a truncated procedure
partially on the ground that it avoids administrative burdens).
Nos. 03-2296, 03-2383–03-2386, 04-1951, 04-2339, 04-2378 25
v. United States, 357 F.3d 703, 711 (7th Cir. 2004) (quoting
United States v. Wallace, 32 F.3d 1171 (7th Cir. 1994); see
United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002)
(relaxing the otherwise rigorous plain error review standards to
correct unobjected error because the error related to sentencing
and the defendant lacked prior knowledge that the erroneous
sentencing condition would be imposed); United States v. Plaza-
Garcia, 914 F.2d 345, 347-48 (1st Cir. 1990) (vacating sentence
under the plain error doctrine that fell within incorrect and
correct guidelines range because the sentence “may well have
been influenced by the [erroneous] sentencing
recommendation”); see also United States v. Reyna, 358 F.3d
344, 351 (5th Cir. 2004) (presuming prejudice when the district
court failed to allow defendant to allocute, because of the nature
of the right and the difficulty of proving the violation affected a
specific sentence); United States v. Adams, 252 F.3d 276 (3d Cir.
2001) (same).
The panel decision today offers a superficially pragmatic,
but not a principled, basis for adopting its novel approach to
plain error analysis. Particularly troubling, in terms of its long-
term impact, is the delegation to the district court of our judicial
responsibility to evaluate plain error on an independent basis.
See United States v. Domiguez Benitez, 124 S. Ct. 2333, 2340
(2004) (“A defendant must thus satisfy the judgment of the
reviewing court . . . .”). Indeed, even when viewed as a
“pragmatic” response to Booker’s mandate, the panel’s hastily
constructed procedure falls on its own sword. The panel never
tells us what it plans to do with cases in which retirement,
disability or death has made impossible consultation with the
district judge who imposed the unconstitutional sentence. Even
when such consultation is possible, our case tracking computer
programs will get quite a workout, and we certainly shall see
another New Year come and go before this situation no longer
impedes our regular work. The Supreme Court has told us that
one of the reasons for plain error review is to reduce the burden
on the judicial system. See Johnson v. United States, 520 U.S.
Nos. 03-2296, 03-2383–03-2386, 04-1951, 04-2339, 04-2378 26
461, 468 (1997). It is indeed difficult to see how the odyssey on
which the panel now sends us will do anything other than tie us
in knots.2
Booker requires a simple, direct remedy to those harmed
by the unconstitutional procedure of former times. We would
best serve justice by implementing the Supreme Court’s
mandate quickly and efficiently. I respectfully dissent.
2
Cf. Williams, slip op. at 20 n.15 (criticizing the
procedure scripted by the panel opinion as introducing a
“needless yo-yoing between the appellate court and the district
court”).
Nos. 03-2296, 03-2383–03-2386, 04-1951, 04-2339, 04-2378 27
KANNE, Circuit Judge, dissenting from the denial of
rehearing en banc. I concur with all aspects of the panel’s
opinion issued today—except for the proposed mechanism to
remedy the unconstitutionally imposed sentences. I believe that
the sentences must be vacated and remanded to the district
courts for resentencing in light of Booker.
In Booker, the Supreme Court stated that enhancements
resulting from judge-found (rather than jury-found or admitted)
facts violate the Sixth Amendment. 125 S. Ct. at 755-56.
Importantly, Booker’s companion petitioner, Fanfan, had
received a sentence that did not violate the Sixth Amendment
but was nonetheless deemed unconstitutional because it was
imposed under a mandatory Guidelines regime. Id. at 768. Any
sentence handed down under a mandatory guideline regime is
unconstitutional. The solution selected by the panel (a limited
remand, simply asking the district judge whether there was a
“miscarriage of justice”) does not fully rectify this problem.
In the post-Booker world, sentencing judges have
discretion to weigh a multitude of factors that were not
ordinarily relevant or appropriate to consider under the
previous regime. See, e.g., U.S.S.G. § 5H1 (specific offender
characteristics including age, family ties and responsibilities,
and employment record). These are the very factors that might
convince a judge to resentence. The panel’s limited remand
leaves open the possibility that these factors might come to
light in a hearing conducted by the district court, but there is
no guarantee that such a hearing will be held—and if we retain
jurisdiction as the panel would have it, it is unclear that a
district judge could even compel such a hearing.
Certainly, we can anticipate that some district judges
will opt not to have a hearing and simply choose not to
resentence, at which point we may be required to review the
standing sentence for reasonableness. But surely reasonableness
depends not only on the length of the sentence but on the
Nos. 03-2296, 03-2383–03-2386, 04-1951, 04-2339, 04-2378 28
process by which it is imposed. The record in the case in which
there was no resentencing (or hearing on the issue) will be
impossible for us to review for reasonableness, if reasonableness
is to be determined with regard to all of the “the numerous
factors that guide sentencing.” See Booker, 125 S. Ct. at 765-66.
We know now that the universe of factors that guides
sentencing is larger than it was pre-Booker, and defendants
should have the opportunity to argue these factors in a full
resentencing hearing and have them reflected in the record. It is
the only way to know whether a different sentence would have
been imposed under advisory guidelines. To deny defendants
this opportunity is a “miscarriage of justice” and thus is
necessarily plain error.
Therefore, the necessary approach is to vacate all the
sentences so that new ones are imposed in accord with
Booker—constitutionally, under an advisory Guideline
system—that would allow the judge to exercise discretion in
sentencing. This is the approach that has been adopted by the
Fourth, Sixth, and Ninth Circuits. United States v. Hughes, 396
F.3d 374 (4th Cir. 2005); United States v. Ameline, No. 02-
30326, 2005 WL 350811 (9th Cir. Feb. 10, 2005); United Sates v.
Milan, No. 02-6245, 2005 WL 309934 (6th Cir. Feb. 10, 2005). I
read the panel’s approach as an ad hoc procedure through
which the district court can elect not to exercise its sentencing
discretion as Booker requires. It is hard to see how, without a
hearing and briefing tantamount to resentencing by normal
vacatur and remand procedures, a district court could ever give
“an appropriate explanation” for its decision not to resentence.
If a district judge chooses not to resentence (especially without
a hearing), that judge is effectively letting stand a sentence
imposed under an unconstitutional regime.