United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-2871
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Louis F. Pirani,                         *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: March 9, 2005
                                  Filed: April 29, 2005 (Corrected: 05/09/05)
                                   ___________

Before LOKEN, Chief Judge, HEANEY, WOLLMAN, MORRIS SHEPPARD
      ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON,
      GRUENDER and BENTON, Circuit Judges, en banc.
                            ___________

LOKEN, Chief Judge.


       In this case, we apply the Supreme Court’s recent decision in United States v.
Booker, 543 U.S. --, 

(2005), to a sentencing error that defendant Louis
F. Pirani failed to preserve in the district court. Having carefully considered the
divergent analyses of our sister circuits, we follow decisions of the First, Fifth, and
Eleventh circuits1 in holding that a remand for resentencing is not required unless the
defendant meets his burden to demonstrate plain error prejudice under controlling
Supreme Court precedents, that is, a “reasonable probability” that the district court
would have imposed a more favorable sentence under the advisory sentencing
guidelines regime mandated by Booker. As Pirani has not met that burden, we affirm.

                                   I. Background

       During a federal investigation into allegations that Crittenden County deputy
sheriffs were stealing money seized at drug interdiction points, FBI and IRS agents
interviewed former deputy Louis F. Pirani. Pirani denied an ownership interest in a
ski boat and an airplane, assets the investigators doubted he could afford based on his
legitimate sources of income. When the investigation uncovered documentary
evidence that Pirani had an interest in both crafts, he was charged with two counts of
making materially false statements to federal investigators in violation of 18 U.S.C.
§ 1001(a). After a trial, the jury convicted him of both counts.

       At sentencing, the district court2 applied the then-mandatory United States
Sentencing Guidelines, using the November 1, 2000, Guidelines in effect when
Pirani’s offenses were committed. Pirani argued that his total offense level should
be 6, the base offense level under U.S.S.G. § 2F1.1 (2000), which governed most
§ 1001 fraud convictions. The court found, however, that upward adjustments for the
amount of loss ($114,000), more than minimal planning, and obstruction of justice
would increase the total offense level under § 2F1.1 to16, producing a guidelines


      1
       United States v. Antonakopoulos, 

(1st Cir. 2005); United States
v. Mares, 

(5th Cir. 2005); United States v. Rodriguez, 

(11th Cir. 2005).
      2
       The HONORABLE SUSAN WEBBER WRIGHT, Chief Judge, United States
District Court for the Eastern District of Arkansas.
                                         -2-
sentencing range of 21 to 27 months in prison, a range the court considered “too
high” for Pirani’s offenses. The court further found that “defendant’s conduct as
established at trial, which consisted of giving false statements to agents of the FBI
and IRS knowing that they were conducting an investigation,” established a violation
of 18 U.S.C. § 1505. Application note 14 to § 2F1.1 stated, “Where the indictment
or information setting forth the count of conviction . . . establishes an offense more
aptly covered by another guideline, apply that guideline rather than § 2F1.1.” The
court invoked this cross reference and assessed Pirani a total offense level of 12 under
U.S.S.G. § 2J1.2 (2000), the obstruction of justice provision governing violations of
18 U.S.C. § 1505. That produced a guidelines sentencing range of 10 to 16 months
in prison. The court imposed a ten-month sentence and “split” the sentence into five
months in prison and five months home detention. See U.S.S.G. § 5C1.1 (2000).

       Pirani appealed his conviction and sentence, arguing the district court
committed evidentiary errors at trial and erred in applying § 2J1.2 to determine his
offense level under the mandatory Guidelines. After oral argument to a panel of this
court, the Supreme Court issued its decision in Blakely v. Washington, 

(2004). Pirani moved to remand his case for re-sentencing, arguing that the
district court violated his Sixth Amendment rights under Blakely by finding that his
conduct as charged and proved at trial satisfied the elements of obstruction of justice.
The panel affirmed Pirani’s conviction but concluded that use of the § 2F1.1 cross-
reference violated his Sixth Amendment right to trial by jury and was plain error
requiring a remand for resentencing. The en banc court vacated the panel’s opinion
and granted rehearing en banc. After the Supreme Court issued its decision in
Booker, we requested supplemental briefing on the issue “whether the district court
committed sentencing error in light of [Booker], and if so, whether it is plain error
warranting relief under . . . United States v. Olano, 

, 732-37 (1993).”




                                          -3-
                               II. Sentencing Issues

       In Booker, the Supreme Court applied the core Sixth Amendment principle of
Blakely to enhancements imposed under the mandatory federal Sentencing Guidelines
-- “[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 

. Then, invoking its power to sever provisions
that render a statute unconstitutional, the Court “severed and excised” two provisions
of the Sentencing Reform Act of 1984: 18 U.S.C. § 3553(b)(1), the provision that
made the Guidelines mandatory; and 18 U.S.C. § 3742(e), the provision establishing
standards of appellate review which, as revised in 2003, “make Guidelines sentencing
even more mandatory than it had 

. The effect of this remedy
(assuming no responsive legislation by Congress) is an advisory Guidelines system
in which sentencing judges continue to “take account of the Guidelines together with
[the] other sentencing goals” enumerated in 18 U.S.C. § 3553(a), and courts of appeal
review sentences for 

.

        The advisory Guidelines mandated by Booker apply to all federal sentencings,
whether or not the defendant is subject to one of the enhancements that triggered the
Sixth Amendment issues that invalidated the mandatory Guidelines regime. The
Court in Booker confirmed that this profound change in federal sentencing applies
to all cases now on direct appeal. In determining how these diverse cases should be
resolved, the Court provided significant guidance to the courts of appeals:

      [The fact that this new rule applies to cases pending on direct review]
      does not mean that we believe that every sentence gives rise to a Sixth
      Amendment violation. Nor do we believe that every appeal will lead to
      a new sentencing hearing. That is because we expect reviewing courts
      to apply ordinary prudential doctrines, determining, for example,
      whether the issue was raised below and whether it fails the “plain-error”

                                         -4-
      test. It is also because, in cases not involving a Sixth Amendment
      violation, whether resentencing is warranted or whether it will instead
      be sufficient to review a sentence for unreasonableness may depend
      upon application of the harmless-error 

. Before turning to the question of plain error, we must consider two
preliminary issues raised by Pirani -- whether the district court misapplied the then-
mandatory Guidelines, an issue that is still important because the statute as excised
by Booker “requires judges to take account of the Guidelines together with other
sentencing 

; and whether Pirani preserved the issue of
Booker error in the district court, so that the plain error doctrine does not apply.

                                         A.

       Pirani argues that the district court misapplied the cross reference in U.S.S.G.
§ 2F1.1(2000) because, while his conduct as proved at trial might have constituted
a violation of 18 U.S.C. § 1505, the indictment did not establish that his offense was
more aptly covered by U.S.S.G. § 2J1.2, as application note 14 required. Like the
district court, we disagree. The two counts in question did not expressly allege
obstruction of justice or a violation of § 1505. But the facts alleged, including those
incorporated from a prior count, charged Pirani with making false statements to FBI
and IRS agents during the course of a government investigation at a time when Pirani,
himself in law enforcement, knew of the investigation. In these circumstances, the
district court did not clearly err in finding that the indictment established an offense
more aptly covered by another guideline, invoking the cross reference in § 2F1.1, and
sentencing Pirani in accordance with § 2J1.2. Accord United States v. Kurtz, 

(2d Cir. 2001).




                                          -5-
                                            B.

       An error by the trial court, even one affecting a constitutional right, is forfeited
-- that is, not preserved for appeal -- “by the failure to make timely assertion of the
right.” United States v. Olano, 

, 731 (1993). To preserve an error for
appellate review, an objection must be timely and must “clearly stat[e] the grounds
for the objection.” United States v. Williams, 

, 1294 (8th Cir. 1993);
Fed. R. Crim. P. 51(b). Errors not properly preserved are reviewed only for plain
error under Rule 52(b) of the Federal Rules of Criminal Procedure, as construed in
Olano and its progeny. The plain error principle applies even when, as here, the error
results from a change in the law that occurred while the case was pending on appeal.
See Johnson v. United States, 

, 467-68 (1997).

       Pirani argues that the plain error doctrine does not apply in this case because
he preserved his Booker claim when he “raised numerous legal and factual objections
in the district court to the Presentence Report, challenging the proposed application
of various sentencing enhancements, including the cross reference.” However, these
objections did not allege Booker errors. Booker changed the legal significance of a
Guidelines enhancement -- from mandatory to advisory -- not whether the facts of a
particular case make the enhancement applicable. In this regard, we agree with the
First Circuit: “The argument that a Booker error occurred is preserved if the
defendant below argued Apprendi or Blakely error or that the Guidelines were
unconstitutional.” United States v. 

; see United
States v. Sayre, 400 F.3d.599, 602 (8th Cir. 2005) (Gruender, J., concurring).

      In United States v. Coffey, 

, 860-61 (8th Cir. 2005), reh’g en banc
granted, Nos. 04-2176/2247 (Apr. 1, 2005), a panel of this court held that an
objection at sentencing to the sufficiency of the government’s evidence of drug
quantity was sufficient to preserve a claim of Booker error on appeal. Other panels
have followed this ruling. See United States v. Selwyn, 

, 1066-67 (8th

                                           -6-
Cir. 2005); United States v. Sdoulam, 

, 995 (8th Cir. 2005); United
States v. Fox, 

, 1026-27 (8th Cir. 2005). These decisions are contrary
to this court’s unanimous en banc decision that a sufficiency-of-proof objection did
not preserve a claim of Apprendi error. United States v. Diaz, 

, 683 n.4
(8th Cir. 2002). To the extent these decisions are inconsistent with this opinion, they
are not controlling precedent.3

       Pirani further argues that he preserved his claim of Booker error at sentencing
when his attorney stated, in arguing that the court should not impose a two-level
enhancement for more than minimal planning, “when you talk about sending people
to prison, I believe the burden of proof should be beyond a reasonable doubt.” Many
defendants have urged courts to adopt this strict standard of proof in applying the
mandatory Guidelines. Because Pirani did not couple this statement with a specific
reference to Apprendi or Blakely or the Sixth Amendment, he did not preserve the
very different question of whether the district court committed Booker error in
construing the Guidelines as mandatory when invoking the cross-reference to § 2J1.2.
Thus, we review this question for plain error.

                                           C.

       Plain error review is governed by the four-part test of 

-
36, as articulated in 

:

      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.
      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, integrity, or public reputation of judicial
      proceedings.


      3
       We have granted the government’s petition for rehearing en banc in Coffey.
                                           -7-
The defendant has the burden of proving plain error, whereas the government has the
burden of proving harmless error. 

. “Appellate review
under the plain-error doctrine, of course, is circumscribed and we exercise our power
under Rule 52(b) sparingly.” Jones v. United States, 

, 389 (1999).

       It is undisputed that the first two Olano factors are satisfied here. The district
court (understandably) committed Booker error by applying the Guidelines as
mandatory, and the error is plain, that is, clear or obvious, at this time. “[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.”

. The crux of the inter-circuit conflict comes in the
application of the third and fourth Olano factors -- whether the Booker error affected
the defendant’s “substantial rights” in a manner that “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”

                                           1.

        The Fourth Circuit in a thorough opinion concluded that all pending appeals
in which the district court committed Sixth Amendment error by imposing a
mandatory, judge-found guidelines enhancement must be remanded because of plain
Booker error. United States v. Hughes, 

(4th Cir. 2005). Noting that “the
proper focus” of the plain error prejudice inquiry is on what happened at the original
sentencing proceeding, not what might happen on remand, the court criticized
contrary decisions in other circuits for considering the remedy mandated in Booker
because that approach “would essentially require us to disregard the Sixth
Amendment error altogether.” 

Having defined the Booker error in this
fashion, the court concluded that the defendant’s rights were substantially affected
if an enhancement increased the mandatory Guidelines sentence, and that satisfied the
fourth Olano factor because the defendant was sentenced to a longer prison term than

                                           -8-
“the maximum sentence authorized by the jury verdict.” 

The Sixth Circuit
and the Ninth Circuit have adopted similar approaches to the plain error issue. See
United States v. Oliver, 

, 379-80 (6th Cir. 2005); United States v.
Ameline, 

, 654 (9th Cir. 2005), reh’g en banc granted, 

(9th Cir. 2005).

       Like most other circuits, we disagree with the Fourth Circuit’s definition of the
plain error at issue. The error in Booker was not merely the enhancement of a
sentence on the basis of judge-found facts. The constitutional error arose from the
combination of the enhancement and a mandatory Guidelines regime. In Booker,
every Justice agreed that the Sixth Amendment would not be implicated “if the
Guidelines as currently written could be read as merely advisory provisions that
recommended, rather than required, the selection of particular sentences in response
to differing sets of 

(Stevens, J., for the Court); 

(Breyer, J., for the Court).

       In deciding whether a defendant has satisfied the third Olano factor, we agree
with the Fourth Circuit that the prejudice inquiry focuses on what sentence would
have been imposed absent the error. But the error as defined in Booker can be
excised in two different ways, either by limiting enhancements in a mandatory
guidelines regime to those consistent with the jury verdict, or by retaining
enhancements based upon judge-found facts but applying them in an advisory
guidelines regime.4 If the Court in Booker had not excised portions of the Sentencing
Reform Act, the latter option would not be available. But the Court did modify the
statute, meaning that the district court could have avoided Booker error by declaring
the Guidelines advisory (contrary to the plain meaning of the statute at that time),

      4
       Nothing in Booker suggests that sentencing judges are required to find
sentence-enhancing facts beyond a reasonable doubt under the advisory Guidelines
regime. See U.S.S.G. § 6A1.3, comment., prescribing the preponderance of the
evidence standard; accord 

& n.6.
                                          -9-
determining the guidelines sentencing range in the manner we have now upheld, and
then imposing a “reasonable” sentence. In these circumstances, we agree with the
First, Second, Fifth, Seventh, and Eleventh Circuits that the third Olano factor turns
on whether Pirani has demonstrated a reasonable probability that he would have
received a more favorable sentence with the Booker error eliminated by making the
Guidelines advisory.5 As Judge Posner explained in United States v. Paladino, “what
[Hughes] overlooked is that if the judge would have imposed the same sentence 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.” 

, 483 (7th
Cir. 2005).

      The Second Circuit has modified the prescribed plain error inquiry by
remanding Booker plain error cases to the district courts to “consider, based on the
circumstances at the time of the original sentence, whether to resentence, after
considering the currently applicable statutory requirements as explicated in Booker.”
United States v. Crosby, 

, 120 (2d Cir. 2005). The Seventh Circuit has
adopted this approach, except that it retains jurisdiction until the district court “states
on limited remand [whether] he would have imposed a different sentence had he
known the guidelines were merely advisory.” 

.

       Though creative, we conclude that this approach violates the Supreme Court’s
command in Booker that courts of appeals apply “ordinary prudential doctrines,”
including “the ‘plain-error’ 

(emphasis added). Four times in
recent years, a unanimous or nearly unanimous Supreme Court has applied the plain
error test of Olano and concluded that an unpreserved error would not be reviewed

      5
       See 

; United States v. Williams, 

,
459& n.12 (2d Cir. 2005); 

; United States v. Paladino, 

, 483-84 (7th Cir. 2005); United States v. Rodriguez, 

, 1299-
1306 (11th Cir. 2005).
                                           -10-
because it either did not affect substantial rights or did not seriously affect the
fairness, integrity, or public reputation of judicial proceedings. United States v.
Benitez, 

(2004); United States v. Cotton, 

(2002) (Apprendi
error); United States v. Vonn, 

(2002); Johnson v. United States, 

, 467 (1997). The Court has repeatedly said that the “plain-error review is in the
discretion of the reviewing court.” 

. In addition to violating
this principle, delegating the plain error prejudice question to the district courts is
contrary to the intent of Congress to reduce sentencing disparity by expanding
appellate review. Thus, like the Fifth Circuit and the Eleventh Circuit, we reject the
limited remand approach as contrary to our obligation as an appellate court to apply
the third and fourth Olano factors based upon the existing record on appeal. See

; 

.

      The Supreme Court has instructed that proving plain error prejudice “should
not be too easy” and “demand[s] strenuous exertion to get relief.” 

. Accordingly, like the First, Fifth, and Eleventh circuits, we hold that, before
we may consider whether to exercise our discretion under the fourth Olano factor to
review a forfeited Booker error, the defendant must show a “reasonable probability,”
based on the appellate record as a whole, that but for the error he would have received
a more favorable sentence.

                                           2.

       In addressing the third Olano factor, Pirani’s supplemental brief and the amicus
briefs submitted in his support simply argue that all cases in which the Booker error
included a Sixth Amendment violation should be remanded under plain error review.
We reject that contention because it misperceives the nature of Booker error. All
sentences imposed by a district court that mistakenly (though understandably)
believed the Guidelines to be mandatory contain Booker error. Whether the resulting
sentence included what Pirani calls a Sixth Amendment violation, that is, an

                                         -11-
enhancement based upon judge-found facts, may affect the plain error prejudice
inquiry. But it does not, by itself, establish a reasonable probability that, but for
Booker error, the defendant would have received a more favorable sentence under an
advisory guidelines regime. That question is inherently more fact specific. See

.

       Pirani’s brief does not argue that the district court would have imposed a more
favorable sentence under the advisory guidelines regime mandated by Booker. In any
event, the record on appeal would not support this contention. The sentence imposed
was at the bottom of the obstruction-of-justice guidelines range. But sentencing at
the bottom of the range is the norm for many judges, so it is insufficient, without
more, to demonstrate a reasonable probability that the court would have imposed a
lesser sentence absent the Booker error. Here, the district court applied the cross-
reference to U.S.S.G. § 2J1.2, which avoided § 2F1.1 enhancements that would have
produced a mandatory guidelines sentence the court considered “too high.” The court
then exercised its discretion to impose the minimum sentence, noting that “[t]here
were factors that weighed against imposing the minimum sentence, but the Court
believes that the minimum sentence is appropriate.” The court further exercised its
discretion in a manner favorable to Pirani by satisfying the ten-month sentence in part
with home confinement.

      Pirani was convicted of an offense reflecting a serious breach of duty by a
public official sworn to uphold and enforce the law. Nothing in the record suggests
a reasonable probability that the district court would have imposed a more lenient
sentence absent Booker error.6 In these circumstances, Pirani has not carried his


      6
        During the lengthy sentencing hearing, the district court twice expressed her
dislike of the Guidelines. But that is not surprising given the complexity of applying
the Guidelines in this case. It would be relevant to plain error prejudice if the district
court had opined that the sentence produced by the mandatory Guidelines was
unreasonable. A court’s dislike of the Guidelines in general is not relevant.
                                          -12-
burden of demonstrating prejudicial plain error under Olano. As the Eleventh Circuit
said in Rodriguez, “where the effect of the error on the result in the district court is
uncertain or indeterminate -- where we would have to speculate -- the appellant has
not met his burden of showing a reasonable probability that the result would have
been different but for the 

.

       Because Pirani has failed to establish a reasonable probability of prejudice, we
need not consider the fourth Olano factor, whether to exercise our discretion to
review a plain error because it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” 

. In a number of cases,
we have granted plain error review when the district court applied the wrong
mandatory guidelines range because of clerical or other errors. See United States v.
Warren, 

, 1059 (8th Cir. 2004); United States v. Weaver, 

,
530 (8th Cir. 1998); United States v. Comstock, 

, 850 (8th Cir. 1998).
These decisions reflect proper concern that the fairness, integrity, and public
reputation of judicial proceedings are seriously affected when a defendant must spend
additional time in prison on account of an illegal sentence. Accord 

(“It is a miscarriage of justice [justifying remand] to give a person an
illegal sentence that increases his punishment, just as it is to convict an innocent
person.”).

        A Booker error, on the other hand, presents a different situation. If the
mandatory guidelines were properly applied, the sentence itself is not illegal under
the advisory regime mandated by Booker, only the process the district court used in
arriving at that sentence. In these circumstances, the fourth-factor inquiry seems
more akin to United States v. Cotton, where the Supreme Court refused to exercise
its discretion to review a plain Apprendi error -- failure to charge drug quantity in the
indictment and submit that issue to the petit jury -- because “[t]he real threat to the
‘fairness, integrity, and public reputation of judicial proceedings’ would be if
respondents, despite the overwhelming and uncontroverted evidence that they were

                                          -13-
involved in a vast drug conspiracy, were to receive a sentence prescribed for those
committing less substantial drug offenses because of an error that was never objected
to at 

. Thus, we do not foreclose the possibility that there may
be plain Booker errors that meet the third Olano factor but not the fourth. See United
States v. Bruce, 

, 719-20 (6th Cir. 2005).

                               III. Conviction Issues

       Pirani’s claims of trial error stem primarily from the government’s cross-
examination of defense witness Linda Graham. On direct exam, Graham opined as
to Pirani’s reputation for truthfulness in the community, buttressing her opinion by
stating that she knew her son “was in good hands” when he was with Pirani. On cross
exam, the prosecutor asked Graham a series of nine questions. Each question began,
“Would your opinion of Louis Pirani's reputation for truthfulness change if you
knew,” and ended with various instances of alleged misconduct addressed in the
government’s case in chief. Pirani did not object to these questions at trial but argues
plain error on appeal.

       Pirani first argues that it was plain error to allow the prosecutor to ask these
guilt-assuming questions, particularly one which assumed he was guilty of the
charged offenses. A number of courts have condemned prosecutor questions that
assume the defendant’s guilt of the offense being tried as contrary to the accused’s
presumption of innocence. See United States v. Guzman, 

, 1352 (11th
Cir. 1999). But the questions at issue here were not plain error. Only the last even
obliquely referenced the charge that Pirani knowingly lied about owning an aircraft
to federal authorities during an official investigation:

      Q. Would your opinion of Louis Pirani's reputation for truthfulness
      change if you knew that Louis Pirani has said that his brother, not he,
      was the sole owner of an airplane [when] Pirani's own records show that


                                         -14-
      he paid $9,300 in cash on the plane, not counting his half of the down
      payment?

The question is phrased in the abstract, without mention of an audience, a time, or a
place for the alleged statement. It takes the form of a hypothetical, not of a fact
known to the prosecution. Graham’s answer, “These are allegations that until I
receive something that convinced me that they were truthful, it just doesn’t add up,”
was consistent with the presumption of innocence and properly left the truth of the
matter to be determined by the jury. While we do not endorse the practice, and
suspect that a timely objection to this question would have been sustained, the issue
was forfeited at trial and does not cast doubt on the fairness, integrity, or public
reputation of that judicial proceeding.

       Pirani further argues that the district court committed plain error in allowing
the prosecutor to question Graham, a reputation witness, about her opinion of Pirani's
character. The contention is based on a false premise. Although defense counsel may
have asked questions about Pirani’s general reputation, Graham’s answers offered her
opinion of Pirani's character -- someone she could trust to take care of her son. When
an accused offers evidence of a character trait, the government may rebut with cross
examination inquiring into “relevant specific instances of conduct.” Fed. R. Evid.
404(a)(1), 405(a); see United States v. Monteleone, 

, 1090 (8th Cir.
1996). Pirani acknowledges this principle but criticizes the district court for failing
to conduct a sidebar or preliminary proceeding to be sure the prosecutor had a
sufficient factual basis for the misconduct implied or assumed in the questions. We
urged use of this procedure in United States v. Krapp, 

, 1186 (8th Cir.
1987). However, as in United States v. Bruguier, 

, 1149-50 (8th Cir.
1998), there was no plain error in failing to employ it because the questions dealt with
events addressed in the government’s case-in-chief, and we have no reason to think
that government counsel had no factual basis for his implied assertions.



                                         -15-
       Finally, Pirani argues that the district court abused its discretion when it
admitted into evidence a tape-recorded conversation in which Pirani stated to a
cooperating officer that he had read about the investigation in the newspaper, knew
officers who had been questioned and searched, but had no reason to be concerned.
We review the district court’s evidentiary rulings for clear abuse of discretion. See
United States v. Montano-Gudino, 

, 505 (8th Cir. 2002).

       Pirani first argues that the evidence was irrelevant because, while the taped
conversation tended to show he knew of the investigation, that fact was not an
element of the charged offense, the unlawful making of false statements. Like the
district court, we disagree. To meet its burden of proof, the government had to prove
that Pirani knowingly made a false material statement. At a minimum, the recorded
conversation tended to prove that Pirani knew his false statements to the interviewing
agents were material to a government investigation.

       Pirani next argues that the tape should have been excluded because its
probative value was substantially outweighed by the risk of unfair prejudice. See
Fed. R. Evid. 403. The tape includes Pirani and others swearing expressively during
a casual conversation among officers, culminating in Pirani’s declaration that he had
no reason to worry about the investigation. We doubt Pirani's profane bravado came
as a surprise to the jury, much less colored its view of whether he had committed the
offenses charged. In any event, the profanities did not create a risk of unfair
prejudice that substantially outweighed the tape's probative value. There was no
abuse of the district court’s substantial evidentiary discretion.

       The judgment of the district court is AFFIRMED. Let this court’s mandate
issue forthwith.




                                        -16-
HEANEY, Circuit Judge, dissenting.

       This is not a plain error case – one in which the defendant failed to preserve a
Sixth Amendment sentencing error.7 Rather, the defendant here preserved the error
by way of objections he lodged with the district court. It follows that under United
States v. Booker, 

(2005), we have no alternative but to remand this
matter for resentencing under a regime that passes constitutional muster.

       Louis F. Pirani, a former Crittenden County Sheriff’s Deputy, was charged with
and convicted of making false statements to federal authorities8 who were
investigating allegations that Crittenden deputies were keeping seized drug money
for personal use. The United States Sentencing Guidelines (hereinafter Guidelines)
mandated a base offense level of 6 for false statement convictions. The Guidelines
also contained a cross-reference provision that required the sentencing court to apply
another, higher guideline offense level if the facts of the crime more aptly fit another
guideline. Based on the facts adduced at trial (but not proven to a jury), the district
court determined that Pirani’s false statement conviction was more akin to obstruction
of justice. Thus, employing the cross-reference provision, the district court applied
the obstruction of justice Guidelines offense level of 12 and effectively increased
Pirani’s sentencing range from 0 to 6 months to 10 to 16 months.

      At sentencing, there was extended discussion of whether cross-reference to the
obstruction of justice guideline was proper. First, Pirani objected to the district court
sentencing him for obstruction of justice because that crime was not alleged in the
indictment. (Sent. Tr. at 16-17.) The government responded by stating that the facts
necessary to convict Pirani of obstructing justice, in violation of 18 U.S.C. § 1505,


      7
       If this were a plain error case, I would concur without reservation in Judge
Bye’s thoughtful dissent.
      8
       18 U.S.C. § 1001(a).
                                          -17-
were in the indictment, even though that substantive crime was not charged.9 (Id. at
24-25.) Pirani maintained that he could not have been convicted of obstruction of
justice based on the facts in the indictment. (Id. at 30.) The court then determined
that it would use the obstruction of justice cross-reference, and stated that “all
objections are preserved for purposes of appeal.” (Id. at 33.) Pirani then reiterated
his objection to being sentenced as if he were convicted of the substantive crime of
obstruction of justice, specifically arguing that “the elements [of § 1505] have not
been met.” (Id. at 35.)

       At another point in the sentencing proceeding, the district court was pondering
the application of certain sentence enhancements. Pirani acknowledged that, pursuant
to the Guidelines, the district court was required to use the preponderance-of-the-
evidence standard in determining the factual predicate for enhancements. He
nonetheless asked the court to employ the beyond-a-reasonable-doubt standard for
any determinations that would result in the imposition of a prison sentence. (Id. at
21.)

       This court has consistently held that a defendant preserves his Sixth
Amendment issue for review by objecting to the factual predicate for Guidelines
enhancements. In United States v. Coffey, 

(8th Cir. 2005), the
defendant was convicted of conspiracy to distribute or possess with intent to
distribute 50 or more grams of crack. His presentence report recommended
increasing his offense level (and thus, his mandatory sentencing range) as if he were
responsible for 2.7 kilograms of crack. The jury did not find him responsible for this
higher amount, nor did he admit responsibility for it. He objected to the presentence
report’s drug quantity calculation, arguing that “there was insufficient evidence to

      9
       Of course, this argument would fail post-Booker, as the Supreme Court has
now made clear that facts alleged in the indictment but not proven to a jury beyond
a reasonable doubt are not sufficient to support a sentence enhancement under a
mandatory guidelines system. See 

.
                                        -18-
calculate any quantity of drugs for his offense.” 

We held that this
objection sufficiently preserved the issue for appellate review. 

       In United States v. Fox, 

(8th Cir. 2005), the defendant was
convicted of conspiracy to distribute methamphetamine. The jury found him
responsible for between 50 and 500 grams of methamphetamine, but the presentence
report attributed roughly 1.8 kilograms to him. He “filed an objection to this
recommendation and argued the objection during the sentencing hearing before the
district court.” 

The Fox court did not question the specificity of the
defendant’s objection,10 nor did it cite to Coffey.11 Nonetheless, it found that the
defendant’s objection to the quantity determination “preserved this sentencing issue,
and pursuant to Booker, [the defendant] is entitled to a new sentencing proceeding.”

. Similarly, in United States v. Fellers, 

(8th Cir.
2005), the defendant was found guilty of conspiracy to distribute and possess with
intent to distribute between 50 and 500 grams of methamphetamine. Again, the
presentence report suggested increasing the defendant’s Guidelines offense level
based on a drug amount higher than the jury finding, and the defendant objected. Our
court remanded the case for resentencing “because Fellers raised this issue at
sentencing,” 

but provided no further elucidation on the nature of his
objection.

      10
         Although not contained in the appellate court decision, a review of the district
court sentencing transcript in Fox reveals that the defendant objected to use of the
preponderance-of-the-evidence standard for drug quantity determinations and
questioned the veracity of the witnesses supporting a drug quantity larger than the
jury’s finding.
      11
         The majority states that the Fox and other panels have “followed” the decision
in Coffey. Ante at 6. This is technically true, but may be misinterpreted. Fox
followed Coffey, in the sense that it was issued after Coffey. Nothing in Fox,
however, suggests that the decision was based on Coffey; indeed, there is not a single
citation to Coffey or any other case (save Booker itself) in support of the Fox panel’s
preservation-of-error analysis.
                                          -19-
       United States v. Selwyn, 

(8th Cir. 2005), and United States v.
Sdoulam, 

(8th Cir. 2005), followed with similar results. The defendant
in Selwyn was convicted of a drug offense, but “[n]o drug quantity was stated in the
indictment or found by the jury.” 

. He objected to the basis
for the district court’s drug quantity findings, which we held preserved the Sixth
Amendment issue for appeal. 

In Sdoulam, a defendant convicted of two
methamphetamine-related offenses objected to the district court’s calculation of
pseudoephedrine quantity. Citing Coffey and Fox, the court remanded the case for
resentencing, noting that the “circuit has held that when a defendant objects to a
District Court’s determination of drug quantity at sentencing, the defendant preserves
a Booker-based challenge to his sentence and is entitled to a new sentencing
proceeding.” 

.

       The majority now disregards what I and several other judges on the court
believe to be settled law in this circuit, and asserts that cases such as Coffey and Fox
are “inconsistent with” a footnote in United States v. Diaz, 

, 683 n.4 (8th
Cir. 2002) (en banc), and thus “they are not controlling precedent.” Ante at 7. This
comes as somewhat of a surprise. The court en banc can alter the state of our circuit
law and overturn prior decisions, but we ought not rely on a footnote to accomplish
this.

       The majority contends that Diaz held that “a sufficiency-of-proof objection did
not preserve a claim of Apprendi error.” Ante at 7 (citing 

n.4).
In Diaz, the defendants were charged with and convicted of several offenses related
to a drug conspiracy. The jury did not make any findings as to drug quantity, yet the
district court sentenced the defendants to terms that were beyond the statutory
maximum,12 which the defendants contended violated Apprendi’s rule that “any fact

      12
       After the Supreme Court’s decision in Blakely v. Washington, 

(2004), the term “statutory maximum” took on something of a different
meaning: the maximum guideline sentence authorized by jury-proven or admitted
                                         -20-
that increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New
Jersey, 

, 490 (2000). Because the defendants did not raise their Sixth
Amendment claims before the district court, our court’s review was limited to plain
error. Diaz asserted that he had raised the issue before the district court, but in a
footnote our court disagreed:

      Diaz contends that he did in fact raise Apprendi issues before the district
      court at sentencing, thus entitling him to de novo review. It appears to
      us, however, that his contention in the district court was not an
      Apprendi-style claim, but rather a claim that the government did not
      prove all the elements of the crime listed in the indictment.

n.4 (second emphasis added).

      Obviously, a claim that the government has failed in proving the elements of
an offense is quite different than a defendant’s challenge to his sentence. Drug
quantity typically is not an “element of the crime” that the government is required to
prove to a jury, and was not one in Diaz. See, e.g., United States v. Serrano-Lopez,

, 638 (8th Cir. 2004) (“It is the statute, not the indictment, that sets the
elements of the offense that must be proven beyond a reasonable doubt. As we have
explained, drug quantity is not such an element unless the quantity can and does lead
to the imposition of a sentence greater than the otherwise applicable statutory
maximum.”); Diaz, 

(2002), Gov’t Br. at 45, available at 2001
WL34096384 (affirming that there was no jury finding with respect to drug quantity
in Diaz’s case). Thus, when the appellate court described Diaz’s objection as a
challenge to the government’s proof regarding the elements of the offense, his
objection before the district court must have involved a matter different from the



conduct. 

. In Diaz, the issue involved the maximum
sentence authorized by the statutes of conviction. 

.
                                         -21-
Sixth Amendment argument he pursued on appeal, as that issue was rooted in the
district court’s drug quantity findings. Footnote 4 in Diaz does not stand as a broad
prohibition on preserving Sixth Amendment sentencing claims by way of an objection
to the government’s proof at sentencing. It has not been cited for that proposition in
our circuit or any other, and the majority’s characterization as such today is error.13

       The defendants in Coffey, Fox, Fellers, Selwyn, and Sdoulam all consistently
challenged the proof related to the district court’s drug quantity calculations and the
resultant increase in their sentences.14 In so doing, these defendants apprised the
district court that it could not increase their sentences on the basis of admitted drug-


      13
         In United States v. Palmer, 

(8th Cir. 2002), a defendant
attempted to raise an Apprendi claim in his second appeal, and claimed he had
preserved the issue by arguing in his first appeal that the district court erred in its
drug quantity determinations. While our court disagreed, I do not believe Palmer
stands for the proposition that an evidentiary challenge is insufficient to preserve a
Sixth Amendment sentencing claim. First, the issue in Palmer was waiver, rather than
forfeiture, of a claim. More importantly, though, in the defendant’s first appeal, we
limited our remand to resentencing without the imposition of an erroneously applied
enhancement that was unrelated to drug quantity. See United States v. Jones, 

, 482-83 (8th Cir. 1998) (remanding the Palmer defendant’s case for
resentencing without the imposition of a role-in-the-offense enhancement). Thus, the
Apprendi issue the defendant attempted to raise in his second appeal was not
available for review. See, e.g., United States v. Behler, 

, 776-77 (8th
Cir. 1999) (refusing to consider the defendant’s challenge to his sentence when issues
related to it were not within the scope of the court’s remand).
      14
         United States v. Sayre, 

, 600-01 & n.3 (8th Cir. 2005), has no
impact on Pirani’s case because the panel did not decide any matters related to what
type of objection preserves Sixth Amendment sentencing issues. In contrast, each of
these cases, like Pirani’s, involved Sixth Amendment sentencing error: increases in
the defendant’s sentence based on conduct that was neither admitted nor proven to
a jury. I express no opinion here on whether the result would be the same if the error
was simply that the district court sentenced the defendant under the belief that the
Guidelines were mandatory, but imposed no enhancements.
                                         -22-
related conduct. An objection to a presentence report’s basis for a sentence
enhancement informs the court that it must “rule on the dispute.” Fed. R. Crim. P.
32(i)(3)(B). When that objection challenges the evidence supporting an
enhancement, it is incumbent upon the district court to rule on whether the disputed
evidence is sufficient to support the enhancement. To my mind, such an objection
notifies the district court that it is then required to make sentencing determinations
in a manner that comports with the law; that is, not imposing sentence enhancements
except where the defendant admits to the enhancement’s factual basis or the
government proves the facts supporting the enhancement to a jury beyond a
reasonable doubt.

       I am not alone in suggesting that a challenge to the basis for a sentence
enhancement preserves the Sixth Amendment sentencing issue for appeal. In United
States v. Akpan, ___ F.3d ___, 

(5th Cir. Apr. 14, 2005), the Fifth
Circuit was faced with a similar issue in a case involving a defendant, Okoro, who
was convicted of mail fraud, healthcare fraud, and filing false tax returns. Okoro
argued that his sentence violated Booker. The government contended that Okoro had
failed to preserve the issue through a sufficient objection in the district court. The
Fifth Circuit disagreed with the government:

      Okoro did not . . . fail to preserve his Booker challenge to the district
      court’s loss calculation. Our review of Okoro’s pre-sentencing
      objections to the Presentence Investigation Report (“PSR”) and his
      objections during his sentencing reveal that Okoro repeatedly objected
      to the district court’s determination of a range of financial loss between
      five and ten million dollars on the ground that that figure had not been
      proven at trial. Okoro also consistently urged that the district court
      confine its determination of loss to the amount alleged in the indictment.
      Although Okoro never explicitly mentioned the Sixth Amendment,
      Apprendi, or Blakely until his [Federal Rule of Appellate Procedure]
      28(j) letter, we are satisfied that his objections adequately apprised the
      district court that Okoro was raising a Sixth Amendment objection to the
      loss calculation because the government did not prove to the jury
                                        -23-
      beyond a reasonable doubt that the loss was between five to ten million
      dollars.

Akpan, ___ F.3d at ___, 

, at *11 (footnote omitted); accord United
States v. McDaniel, 

, 546-47 (6th Cir. 2005) (noting that a defendant
may preserve a Sixth Amendment sentencing issue by objecting to application of
“various sentencing enhancements”); United States v. Kosinski, 

,
at *8 (6th Cir. Mar. 22, 2005) (unpublished decision) (“Although Kosinski did not
raise a Sixth Amendment objection in the sentencing court, he did object to the
factual determinations made by the judge. Before this court, he filed briefs with Sixth
Amendment arguments based first on Blakely v. Washington, 

(2004),
and then on Booker, as those cases were decided. We are satisfied that the objection
below to judicial fact-finding preserved the Sixth Amendment issue for review.”);
United States v. Story, 

, at *6-*7 (6th Cir. Mar. 9, 2005)
(unpublished decision) (finding a defendant’s argument that a Guidelines
enhancement for possession of a firearm should not apply because it was based on
unreliable trial testimony was sufficient to preserve the Sixth Amendment sentencing
issue); cf. United States v. Garcia, ___ F.3d ___, 

(11th Cir. Apr. 13,
2005) (holding that a defendant adequately preserved Sixth Amendment sentencing
claim by objecting to the district court’s determination of a drug quantity larger than
the jury finding).

       In short, Coffey, Fox, and their progeny are correctly decided because the Sixth
Amendment sentencing error was preserved in each case. It was also preserved here.
After being convicted of making false statements, Pirani objected to being sentenced
as if he were convicted of obstructing justice because that crime was not alleged in
the indictment. He further argued that the district court should employ the beyond-a-
reasonable-doubt standard at sentencing, and finally asserted that the government had
not met its burden of proving the elements of obstruction of justice. What more could
Pirani have done? He challenged the increase in his sentence based on uncharged
conduct, and implored the district court not to send him to prison based on facts not
                                         -24-
proven beyond a reasonable doubt. Even the Fifth and Eleventh Circuits, which the
majority sees fit to follow in its plain-error analysis of Booker, would likely have
found Pirani’s objections sufficient to preserve the matter for review. See United
States v. Akpan, ___ F.3d ___, 

, at *11 (5th Cir. Apr. 14, 2005)
(finding objections to the district court’s loss calculation were sufficient to preserve
a Booker claim despite no mention of Apprendi, Blakely, or the Sixth Amendment
before the district court); United States v. Dowling, ___ F.3d ___, 

,
at *3 (11th Cir. Mar. 23, 2005) (holding that a defendant may preserve his Sixth
Amendment sentencing issue by objecting to the imposition of a sentence based on
evidence not proven to a jury beyond a reasonable doubt).

       The majority accepts my assessment of the record with respect to Pirani’s
objections, but finds them insufficient “[b]ecause Pirani did not couple this statement
with a specific reference to Apprendi or Booker or the Sixth Amendment.” Ante at
7. Nothing in Booker suggests that magic words must be used; the substance of the
objection is what is important. Certainly, we could not have expected Pirani to lodge
an objection based on Blakely or Booker with the district court, as neither of those
cases were decided when Pirani was sentenced. Moreover, at that time, the law of our
circuit was that Apprendi did not require enhancements in a mandatory guidelines
system to be proven to a jury beyond a reasonable doubt. See 

(“Use of judicially determined drug quantity as a basis for sentencing is permissible,
however, so long as the defendant’s sentence does not exceed the statutory maximum
sentence available for an indeterminate quantity of the drug, the offense
simpliciter.”); see also United States v. Alvarez, 

, 766-67 (8th Cir. 2003)
(noting that Diaz “squarely rejected” the view that Apprendi required facts that
increase a defendant’s guideline range to be proven to a jury beyond a reasonable
doubt). Particularly with regard to Pirani’s request to be sentenced on the basis of
facts found beyond a reasonable doubt and his objection to being sentenced on the




                                         -25-
basis of a crime not charged in the indictment,15 this is entirely consistent with
Federal Rule of Criminal Procedure 51(b)’s statement that “[a] party may preserve a
claim of error by informing the court . . . of the action the party wishes the court to
take.”

        The majority seems to feel that by strictly requiring defendants to assert Sixth
Amendment sentencing objections with technical precision, it is staying true to
Booker’s requirement that reviewing courts must apply “ordinary prudential
doctrines, determining, for example, whether the issue was raised below, and whether
it fails the ‘plain-error’ test.” 

. I doubt this approach will
have the desired effect, at least at the district court level.

      The more stringent prerequisites imposed by [the plain error rule], as
      compared to [the harmless error rule] are designed to encourage a
      defendant to raise objections during the proceeding where they might be
      corrected, rather than strategically withhold an objection as a basis of
      appeal. By contrast, to require a defendant to raise all possible
      objections at trial despite settled law to the contrary would encourage
      frivolous arguments, impeding the proceeding and wasting judicial
      resources.

United States v. Baumgardner, 

, 1308-09 (8th Cir. 1996) (citation
omitted); see also United States v. Gonzalez-Huerta, 

, 

,
at *19 (10th Cir. 2005) (en banc) (Briscoe, J., concurring in part and dissenting in
part) (characterizing as “disingenuous” and “unfair” the practice of applying plain
error review to Booker claims because it was “unreasonable in my view to conclude
that Gonzalez-Huerta could and should have raised the issue below”).



      15
        At oral argument, counsel for the government agreed with my suggestion that
an objection to being sentenced for matters not charged in the indictment is a Sixth
Amendment argument.
                                         -26-
       The stated goal of the Guidelines was to create “a system that diminishes
sentencing disparity.”16 

. This goal is undermined when
circuits apply different standards in determining whether a defendant sufficiently
preserved his Sixth Amendment sentencing challenge in the district court, and is
further undermined when circuits differ on the question of how to deal with Booker
claims on plain error review. Hopefully, the Supreme Court will promptly resolve
these differences, and do so in a manner true to the essence of Booker’s concern for
basic rights of the defendant under the Sixth Amendment.

MORRIS SHEPPARD ARNOLD, Circuit Judge, with whom SMITH, Circuit Judge,
joins, dissenting.

      I concur in all of the court's opinion except the portion of it that holds that
Mr. Pirani is not entitled to plain error relief.

       I believe that the court misses an opportunity in not adopting the highly
practical resolution reached in United States v. Paladino, 

(7th Cir.
2005), where the court remanded the case to allow the sentencing judge to certify
whether he would have given a different sentence had he treated the guidelines
merely as advisory. Our court rejects this solution as an improper delegation of its
authority, but this characterization misses the mark. A remand in the instant
circumstances is not a delegation of anything; it is simply a device to gather facts
relevant to determining the answer to a question that it is our duty to answer. That


      16
        I have noted on several occasions my personal view that while the Guidelines
may have led to greater sentencing uniformity among district judges, they have not
accounted for the significant disparities that exist in the charging, prosecuting, and
sentencing decisions made by the executive branch of our criminal justice system.
See generally Gerald W. Heaney, The Reality of Guidelines Sentencing, 44 St. Louis
L.J. 293 (Spring 2000); Gerald W. Heaney, The Reality of Guidelines Sentencing: No
End To Disparity, 28 Am. Crim. L.R. 161 (1991).
                                        -27-
question is whether the district court would have given a different sentence had it
been prescient enough to foresee Booker. The answer to that question is hard to
divine on the present record. Why not find out? In responding to that question, the
district court would not be doing our job; its response would enable us to do our job.

       The court's reluctance to remand is especially difficult to understand in this
case, since, as the court itself points out, the district court twice expressed its dislike
of the sentencing guidelines, remarked that an alternative sentencing possibility was
"too high," and sentenced Mr. Pirani to the lowest guideline sentence available. It
might even be that this record by itself creates a sufficient likelihood that the court
would have given Mr. Pirani a lower sentence under the Booker regime that a remand
for resentencing is warranted under our previous cases. See, e.g., United States v.
Warren, 

, 1059 (8th Cir. 2004). At the very least, the record supports
a short delay to ask the district court whether it would have imposed a different
sentence.

       A harder question for me is whether Mr. Pirani will suffer a miscarriage of
justice here if the district court would have given him a shorter sentence had it been
fully aware of the requirements of Booker. It might reasonably be argued that since
the sentence that was imposed is not unreasonable under Booker, it could hardly be
a miscarriage of justice. But we have given plain error relief under the former regime
where a district court applied the wrong guideline, see, e.g., United States v. Weaver,

, 530 (8th Cir. 1998), and I think that the present case is sufficiently
similar to these cases that it falls within their rule. To put it simply, it is unjust for a
person to be deprived for a substantial time of his most prized right, his liberty,
because of a fundamental misapprehension of law by a court of the United States.

       I therefore respectfully dissent.




                                           -28-
BYE, Circuit Judge, concurring in part, dissenting in part.

       I dissent from section II of the majority opinion, in all other respects I concur.
The phrase “three-ring circus” (referring to the three-way circuit split) has been used
to describe the federal circuits’ disparate handling of Booker pipeline cases. Such a
phrase is descriptive, nonetheless, it is probably more appropriate to characterize the
split as a three-ring circus with twelve unique acts each attempting to dazzle us with
its compelling logic. Yet, despite the unique nature of each act, like the conspicuous
facial hair on the bearded lady, one common theme prevails–the undeniable difficulty
in assessing the prejudice suffered by any particular defendant. See United States v.
Shelton, 

, 1332 (1st Cir. 2005); United States v. Crosby, 

,
117-18 (2d Cir. 2005); United States v. Hughes, 

, 381 n.8 (4th Cir.
2005), amended on rehearing by, 

(4th Cir. 2005); United States v.
Mares, 

, 522 (5th Cir. 2005); United States v. Oliver, 

, 379
n.3 (6th Cir. 2005); United States v. Paladino, 

, 482 (7th Cir. 2005);
United States v. Dazey, No.03-6187, 

, at *20 (10th Cir. April 13,
2005); United States v. Rodriguez, 

, 1301 (11th Cir. 2005); United
States v. Coles, No. 03-3113, 

, at *6 (D.C. Cir. Apr. 8, 2005).

      When faced with such difficulty the Supreme Court informs us in certain
instances an error should be presumed prejudicial.17 United States v. Olano, 

, 735 (1993). The Court left undetermined the bounds of which errors should and
should not be considered presumptively prejudicial, 

and it has not been
presented with an opportunity to elaborate on the bounds of the presumption.
However, the lack of such an opportunity does not affect the validity of the

      17
        The Olano court recognized three separate categories of plain error: (1) a
category where the defendant must make a specific showing of prejudice; (2) a
special category of errors that can be corrected regardless of their effect on the
outcome; and (3) a category of errors that should be presumed prejudicial if the
defendant cannot make a specific showing of 

.

                                          -29-
presumption, as the lower courts have the power and duty to address such bounds.
Indeed, in response to this duty the lower courts have begun to carve a niche for the
presumption. See United States v. Serrano-Beauvaix, 

, 59 (1st Cir. 2005)
(Lipez, J., concurring) (discussing situations where “[c]ourts have presumed prejudice
for errors that, by their very nature, make a demonstration of prejudice exceptionally
difficult”). These courts have found a presumption of prejudice appropriate “in cases
where the inherent nature of the error [make] it exceptionally difficult for the
defendant to demonstrate that the outcome of the lower proceeding would [be]
different had the error not occurred.” United States v. Barnett, 

, 526-27
(6th Cir. 2005) (citing United States v. Reyna, 

, 351-52 (5th Cir. 2004)
(en banc); United States v. Adams, 

, 287 (3d Cir. 2001); United States
v. Riascos-Suarez, 

, 627 (6th Cir. 1996)).

        Our court, for example, applied a presumption of prejudice to a plain error
situation in Rush v. Smith, 

(8th Cir. 1995) (en banc). There, Timothy
Rush, an African-American, appealed from an adverse jury verdict on his civil rights
action against two police officers whom he claimed used excessive force against him.

The appeal revolved around the dismissal of the only African-American
juror, who the court dismissed after a snowstorm caused her to be unable to attend
trial. 

In attempting to explain the juror’s absence to the remainder of the
jury, the court made some ill-advised comments regarding racial solidarity. 

Applying Olano’s plain error standard, our court sitting en banc determined on
the particular facts of the case the potential for prejudice in the minds of the jurors
was so great that no specific showing of actual prejudice was required. 

The court reached this holding “[b]ecause of the impracticality of determining what,
if any, effect this racially-divisive remark had on the jury. . . .” 

impracticality of determining the prejudice actually suffered when a
trial judge makes racially divisive remarks to the jury, it is impractical, if not
impossible, to gauge the prejudice actually suffered by a defendant sentenced under
a mandatory as opposed to an advisory guideline regime. The duty of showing
                                         -30-
prejudice which the majority seeks to bestow on a defendant is like asking a
defendant to prove the existence of a divine-being or the existence of life on a planet
other than our own. The evidence either does not exist or is beyond the defendant’s
mere human capabilities, thus any attempt to explain how a defendant may meet this
showing, without an explicit statement on the record by the sentencing judge, is
nothing more than an empty exercise in casuistry.

       Admittedly, plain error review often requires an appellate court to speculate,
but this judicial conjecture is at least based upon concrete evidentiary considerations.
In a situation such as the present, set up by the dramatic change in the federal
sentencing framework, we have very little in the way of concrete and reliable
indicators of how a defendant was prejudiced by a judge’s mistaken mandatory
application of the guidelines. Some have suggested we can tell how a judge will
sentence under an advisory regime by looking to where the defendant’s sentence fell
within the guideline range available to the district court under the mandatory regime.
In other words, those espousing this viewpoint suggest a judge is unlikely to give a
defendant a reduced sentence if his sentence fell in the middle to upper ends of the
guideline range. However, even though a judge may have declined to exercise
discretion to select a lower sentence under the mandatory regime, this does not
necessarily imply the judge would duplicate the sentence under the advisory regime,
for two reasons. First, because a judge strictly applying the mandatory guidelines in
a case falling within an offense’s heartland, regardless of the jurist's private views on
the adequacy of the guideline range, would pick a sentence relative to the other
defendants falling within such range. 

. Thus, the fact a
judge applied the guidelines in the manner Congress and the Sentencing Commission
intended cannot be viewed as an implicit acquiescence to a sentence within the
guideline range under an advisory regime. Second, the position where a sentence fell
under the mandatory regime is not a reliable indicator of the prejudice suffered by a
defendant seeking resentencing under an advisory regime because it overlooks the
fact a defendant’s sentence will now be affected by a judge’s greater discretion to
consider the other factors under 18 U.S.C. § 3553(a). 

.
                                          -31-
      Pre-Booker, the Supreme Court made clear the correctly calculated guideline
range trumped all other factors under 18 U.S.C. § 3553(a). United States v. Booker,

, 750 (2005) (citing Mistretta v. United States, 

, 391
(1989)). Post-Booker, the correctly calculated guideline range presumably carries
equal weight with the other § 3553(a) factors. See United States v. Ranum, 353 F.
Supp. 2d 984, 985-86 (E.D. Wis. 2005) (finding the guidelines are just one of a
number of sentencing factors to be considered). But see United States v. Wilson, 

, 911 (D. Utah 2005) (stating the guidelines should be given
considerable weight and followed in all but the most unusual circumstances). Thus,
in addition to consideration of the guideline range the court must give equal
consideration to sentencing factors such as just punishment, deterrence,
incapacitation, rehabilitation, and the need for the sentence to reflect the nature and
circumstances of the offense and the history and characteristics of the defendant. See
§ 3553(a).

       In assessing the history and characteristics of the defendant there is no
limitation on the information concerning the background, character, and conduct of
a person which a court may consider for the purposes of imposing an appropriate
sentence. 

(citing 18 U.S.C. § 3661). Accordingly, factors
previously deemed ordinarily irrelevant to sentencing under Chapter 5H of the
guidelines such as the defendant’s age, education and vocational skills, mental and
emotional conditions, physical condition, employment record, family ties and
responsibilities, and charitable service are now valid considerations for a court in
imposing a sentence. 

. We cannot know how
consideration of factors such as these will affect a defendant’s sentence and to
speculate is tantamount to performing the sentencing function at the appellate level.
See Williams v. United States, 

, 205 (1992) (“[I]t is not the role of an
appellate court to substitute its judgment for that of the sentencing court as to the
appropriateness of a particular sentence.”).



                                         -32-
       Perhaps the only reliable indicator of the prejudice actually suffered by the
defendant would be unambiguous remarks on the record by the sentencing judge
indicating she would give him a lower sentence had she the discretion to do so.
Relief from error, however, should not depend on the vocal nature of the sentencing
judge, United States v. Antonakopoulos, 

, 81 (1st Cir. 2005), because, for
one thing, prior to Blakely there was no reason to provide such information. Rarely,
for instance, is a sentencing judge as vocal as the court in United States v. Dyck, 

(D. N.D. 2003) (dissenting upon imposition of sentence). In fact,
in light of the prevailing political climate many district judges would have been
reluctant to vocalize any criticism of a guideline sentence. See United States v.
Heldeman, No. 04-1915, 

, at *3 (1st Cir. Mar. 29, 2005)
(recognizing a district judge may well not have expressed his or her reservations
because the guidelines made them hopeless); see also Douglas A. Kelley, Minnesota
Federal Judge Caught in a Constitutional Crossfire, 27 Hamline L. Rev. 427 (2004)
(discussing the plight of the Honorable James M. Rosenbaum, Chief Judge, United
States District Court for the District of Minnesota). The futility of expressing a desire
to deviate downward from guideline range is even more pronounced in light of our
pre-Blakely sentencing law, in which we overturned twenty-three out of twenty-five
downward departures and affirmed forty-four out of forty-six upward departures. See
United States v. Yirkovsky, 

, 945 (8th Cir. 2003) (Heaney J., dissenting)
(highlighting statistics from May 2000 to July 2003). Therefore, while a district
court’s unambiguous statements may affirmatively establish prejudice, the absence
of comment does not establish the antithesis. In fact, in the absence of reasoned
deliberation of the other § 3553(a) factors, not even the sentencing judge herself may
be able to predict the term of imprisonment she would impose upon resentencing.
Because of this uncertainty, in the absence of proof to the contrary, we must presume
the defendant was prejudiced by the error, as this approach best promotes the policies
which underpin Rule 52(b).

      The policies underlying plain error “encourage timely objections and reduce
wasteful reversals by demanding strenuous exertion to get relief for unpreserved
                                          -33-
error.” United States v. Dominguez Benitez, 

, 

, 2340
(2004). In this regard, the plain-error standard attempts to strike a balance between
“the proper functioning of the adversary system, efficiency in managing litigation,
and the demands of justice.” United States v. Barnett, 

, 532 (6th Cir.
2005) (Gwin, J., concurring) (internal quotation omitted). “If every error resulted in
reversal, trial courts would spend inordinate amounts of time re-trying cases that
involved insubstantial errors.” 

rule that never considered errors
unless there had been a trial objection ‘would result in counsel’s inevitably making
a long laundry list of objections to rulings that were plainly supported by existing
precedent.’” 

v. United States, 

, 468 (1997)). I am
concerned the unnecessarily rigid plain error standard championed by the majority
disrupts this balance. To preserve error for a client, a conscientious lawyer, under a
fair reading of the majority opinion, must now raise a laundry list of objections before
the district court, even to those issues deemed by all appellate courts to be well-
settled.

       As a matter of fact, the issue necessitating our plain error discussion was once
well-settled. See, e,g., United States v. Guevara, 

, 120 n.4 (2d Cir.
2001) (listing circuits that held Apprendi did not apply to the guidelines). While we
should concern ourselves about the policies underlying Rule 52(b), we must not
forget that any objection to what we now consider Booker or Blakely error was
discouraged by doctrine equally pervasive as plain error, namely the prohibition
against frivolous arguments. In actuality, a pre-Blakely demand by defendants to
have a jury find facts applicable to sentencing beyond a reasonable doubt would face
a cold reception. While some judges may have simply dismissed the argument, other
judges would have rejected it as ridiculous, while still others would have admonished
the lawyer for wasting the court’s time. When so much of a lawyer's effectiveness is
based upon his or her reputation and credibility, why would any advocate risk diluting
any meritorious arguments with something the overwhelming majority of judges
would have deemed frivolous. The majority now sets out to punish defendants for
failing to burden the court with objections deemed frivolous only a matter of months
                                         -34-
ago. “Frankly, ‘it seems unfair to fault [the defendant] for failing to raise at
[sentencing] an objection based upon a rule that was not announced until after the
[sentencing] was concluded.’” United States v. Serrano-Beauvaix, 

, 60
(1st Cir. 2005) (Lipez, J., concurring) (quoting United States v. Barone, 

, 1294 (1st Cir. 1997)).

       It would therefore appear the presumed prejudice exception to the prejudice
requirement of the third prong of plain error review was tailor-made for Booker-type
errors. Thus, in contrast to the majority which adopts the approach of the First, Fifth
and Eleventh Circuits, I would adopt the approach thoroughly articulated by the Sixth
Circuit in Barnett. Applying this approach to Pirani, the government on this record
cannot overcome the presumption of prejudice.

       In regard to the fourth prong of plain error review, which allows the court to
exercise its discretion to correct a plain error if it seriously affects the fairness,
integrity, or public reputation of the judicial proceedings, the majority compares the
situation here to United States v. Cotton, 

(2002). Such a comparison
is undeserved. In Cotton, the Supreme Court declined to exercise its discretion under
the fourth prong of plain error review where the government failed to present
evidence of drug quantity to a grand jury in violation of the rule expressed in
Apprendi v. New Jersey, 

(2000). 

. The Court
stated the fairness and integrity of criminal justice system was not threatened by this
error because the evidence of drug quantity was overwhelming and essentially
uncontroverted, thus a grand jury surely would have found the requisite amount. 

Thus, in Cotton, had the drug quantity been properly presented to the
grand jury and alleged in the indictment the outcome would have mirrored what
actually happened in the original proceeding.

       The same cannot be said with any certainty in the present case. The outcome
of Pirani’s sentence absent the district court’s erroneous application of the mandatory
guidelines would not necessarily mirror what happened at the original sentencing
                                         -35-
because the sentencing process has changed allowing the district court to consider
factors previously deemed irrelevant. Therefore, unlike Cotton, we do not know what
the outcome would be, and such uncertainty strikes at the heart of the fairness,
integrity and public reputation of the judicial system. 

(“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.”). I would therefore exercise
our discretion to vacate Pirani’s sentence and remand to the district court for
resentencing.
                        ______________________________




                                        -36-