AMENDED ORDER

                                   PUBLISHED

                                                   FILED:   August 12, 2014

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                 No. 10-6
                           (3:08-cr-00134-RJC-2)



UNITED STATES OF AMERICA,

             Plaintiff – Appellee,
    v.

ALEJANDRO ENRIQUE RAMIREZ UMANA, a/k/a Wizard, a/k/a Lobo,

             Defendant – Appellant.



                                   O R D E R


        The Court denies the petition for rehearing en banc.

        A requested poll of the Court failed to produce a majority

of judges in regular active service and not disqualified who

voted in favor of rehearing en banc. Judge Motz, Judge Gregory,

Judge    Keenan,   Judge   Wynn,    and   Judge   Thacker   voted   to   grant

rehearing en banc. Chief Judge Traxler, Judge Wilkinson, Judge

Niemeyer, Judge King, Judge Shedd, Judge Duncan, Judge Agee, and

Judge Floyd voted to deny rehearing en banc. Judge Diaz recused

himself and did not participate in the poll.
       Judge Wilkinson wrote an opinion concurring in the denial of

rehearing en banc, in which Judge Niemeyer joined. Judge Gregory

wrote an opinion dissenting from the denial of rehearing en

banc, in which Judge Wynn joined.

       Entered at the direction of Judge Niemeyer.


                                                 For the Court

                                            /s/ Patricia S. Connor, Clerk



WILKINSON, Circuit Judge, concurring in the denial of rehearing
en banc:

       Judge Niemeyer’s fine opinion for the court fully addresses

the points raised here by the dissent. United States v. Umaña,

(4th Cir. 2014). I agree with that opinion, and add

only these brief observations.

       Were we to renounce Williams v. New York, 

(1949), this court would ignore a clear and consistent directive

from    the    Supreme       Court   not        to     overturn     higher     precedent

preemptively.       In      Rodriguez      de        Quijas   v.    Shearson/American

Express, Inc., 

(1989), the court of appeals had

declined      to   follow    a   decades-old          Supreme     Court   case   on    the

enforceability       of   arbitration       agreements,         Wilko     v.   Swan,   

(1953), because in the view of the court of appeals,

the Court’s intervening decisions on the construction of related

federal statutes had reduced it to “obsolescence,” Rodriguez de


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Quijas v. Shearson/Lehman Bros., Inc., 

, 1299 (5th

Cir.    1988).        While      the     Court       finally   did     overrule     Wilko,

, its opinion is best remembered for

one sentence that is pure ice: “If a precedent of this Court has

direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals

should follow the case which directly controls, leaving to this

Court the prerogative of overruling its own decisions.” 

     leaves”       for   overruling        were    far    clearer    in

Shearson than they are in this case. But the practice of circuit

courts trying to anticipate, based on “trends,” what the Supreme

Court       would   do    with    an     actual      holding   has     not   only   raised

eyebrows upstairs but had heretofore met with disfavor on our

court. See, e.g., United States v. Danielczyk, 

, 615

(4th Cir. 2012) (“Thus, lower courts should not conclude that

the Supreme Court’s ‘more recent cases have, by implication,

overruled      [its]      earlier      precedent.’”       (alteration        in   original)

(quoting Agostini v. Felton, 

, 237 (1997))), cert.

denied, 

(2013). Because Williams controls this

case, I concur in the denial of the petition for rehearing en

banc.

       Williams examined which rules of evidence were applicable

to “the manner in which a judge may obtain information to guide

him    in    the    imposition      of    sentence      upon    an    already     convicted



                                                 3
defendant”       in    a    capital    murder         

.    In

rejecting        the       view     that        the     defendant       enjoyed       trial

confrontation rights at sentencing, the Court noted:

      In addition to the historical basis for different
      evidentiary rules governing trial and sentencing
      procedures there are sound practical reasons for the
      distinction. . . . A sentencing judge, however, is not
      confined to the narrow issue of guilt. His task within
      fixed   statutory   or  constitutional  limits   is   to
      determine the type and extent of punishment after the
      issue of guilt has been determined. Highly relevant—if
      not essential—to his selection of an appropriate
      sentence is the possession of the fullest information
      possible    concerning   the   defendant’s   life   and
      characteristics. . . . It is urged, however, that we
      should draw a constitutional distinction as to the
      procedure for obtaining information where the death
      sentence is imposed. We cannot accept the 

, 251.

      The three circuits to have addressed this issue have found

Williams    to    be       controlling     in       capital    sentencing       cases.     The

procedures or sentencing criteria may vary, but a sentencing

proceeding       remains      a   sentencing.         Its     purpose   of     providing     a

complete and rounded sense of the one to be sentenced does not

fluctuate with the identity of the sentencer or the severity of

the   sanction        to    be    imposed.      The    Seventh       Circuit    explicitly

stated that the “Confrontation Clause does not apply to capital

sentencing,” that “the Supreme Court . . . has never questioned

the precise holding of Williams v. New York,” and that it was

not free to revisit the Williams decision. Szabo v. Walls, 

, 398 (7th Cir. 2002). Likewise, the Eleventh Circuit



                                                4
considered         Williams       controlling           when     it    made      clear       that    a

defendant      has    a    right         to    rebut     before       the   jury       information

relevant to his character and record, but not to exercise full

confrontation         rights        as    to     hearsay        declarants.         Muhammad        v.

Sec’y,      Fla.    Dep’t      of   Corr.,        

,     1074       (11th     Cir.

2013).      Finally,       the      Fifth       Circuit        grounded      its       opinion      on

Williams and indicated that it also was not free to revisit that

decision. United States v. Fields, 

(5th Cir. 2007).

Granting rehearing en banc in this case not only would fail to

resolve a circuit split but in fact would risk creating one in

the face of controlling Supreme Court precedent.

       Unlike in Shearson, it is anything but clear here that the

Supreme Court will overrule Williams.                           Numerous factors support

Williams’s continuing vitality, even after the passage of the

Federal Death Penalty Act of 1994. Citing Williams, the Court

recently continued to differentiate between a trial’s guilt and

sentencing         phases        and          affirmed      the       broader          evidentiary

discretion attached to the latter. See Alleyne v. United States,

133    S.    Ct.     2151,       2163     n.6     (2013)        (”[J]udges        may       exercise

sentencing         discretion          through        ‘an   inquiry         broad      in     scope,

largely unlimited either as to the kind of information [they]

may    consider,          or     the      source        from     which      it     may       come.’”

(alteration in original) (quoting United States v. Tucker, 

,    446     (1972)));          

        and    since       the



                                                  5
American colonies became a nation, courts in this country and in

England practiced a policy under which a sentencing judge could

exercise a wide discretion in the sources and types of evidence

used   to    assist    him        in   determining     the     kind   and   extent     of

punishment      to     be    imposed      within       limits     fixed     by    law.’”

(alteration in original) (quoting Williams v. New York, 

, 246 (1949))). This position has been firm and consistent.

See United States v. Watts, 

, 154 (1997); Witte v.

United States, 

, 399-401 (1995); Nichols v. United

States, 

, 747-48 (1994). It is not just that an

“already convicted defendant,” 

, no

longer      benefits       from    the   presumption         of   innocence      in   the

sentencing      phase.       Practical        considerations       likewise      counsel

against formal constrictions that may not only impede the quest

for a full human picture in all of its complexity, but lay the

groundwork for additional sparring and sow the seeds for added

assignments of error.

       Circumscribing these rights does not leave the convicted

defendant      without       protection       from    unreliable      evidence.       Due

process requires that the broader range of evidence available

during      sentencing        still       possess       sufficient        indicia      of

reliability. United States v. Powell, 

, 393-94 (4th

Cir.     2011);      see     also      U.S.       Sentencing      Guidelines      Manual

§ 6A1.3(a) (2013). The defendant also retains the opportunity



                                              6
for rebuttal of adverse evidence. Gardner v. Florida, 

,    362    (1977);       see    also       U.S.       Sentencing        Guidelines       Manual

§ 6A1.3. Furthermore, the Supreme Court has identified certain

“structural errors” that “undermine the fairness of the entire

criminal       proceeding”         and    require          automatic        reversal.        United

States v. Davila, 

, 2142 (2013); see also Arizona

v. Fulminante, 

, 310 (1991).                           Among these structural

errors       are    violations       of    the       rights       to    counsel        and   to   an

unbiased judge, both of which are retained during sentencing.

;         

.

Confrontation         Clause       violations,        by     contrast,         are     subject    to

harmless error analysis. Delaware v. Van Arsdall, 

,

680, 684 (1986). The trial right to confrontation and cross-

examination         remains       part    of    our       imperishable          inheritance       of

liberty, see Crawford v. Washington, 

, 50-51 (2004),

but     it    is     not     among       the     constitutional             accoutrements         of

sentencing,         in     part    because       “Williams         shows        that    witnesses

providing information to the court after guilt is established

are     not    accusers       within       the       meaning       of     the      confrontation

clause,” United States v. Roche, 

, 618 (7th Cir.

2005).

       It     is     not     our     office          to     create      a      circuit       split,

preemptively         overturn       Supreme      Court       holdings,         and     attempt    to

force    the       Court’s    hand.      It    bears       note    that      the     hierarchical



                                                 7
nature    of    the     judicial      system       lends    to    law   a    stability        and

consistency that would be lost if, for example, district courts

treated our rulings in the fashion urged by those with a more

aggressive       view    of    the    intermediate          appellate        role.        Society

lives by law. When courts, convened in their roles as guardians

of law, set the example of abiding by law, society as a whole

will replenish its faith in our most cherished institutions.

       Judge Niemeyer joins me in this opinion.



GREGORY, Circuit Judge, dissenting from the denial of rehearing
en banc:

       The   government       used     unconfronted          accusations          from     police

informants to send a man to his death.                       I strongly believe that

this    violated      Mr.     Umaña’s       Sixth    Amendment      rights.           My    full

reasoning is set out in my dissent.                    United States v. Umaña, 

, 360–70 (4th Cir. 2014).                          With all due respect, I

consider our refusal to rehear this case en banc to be a grave

mistake.        However, I write today to explain why I believe that

Supreme Court review of Mr. Umaña’s argument is warranted.

       I believe Supreme Court review is vital because this Court

and the district court misread the past five decades of Supreme

Court     jurisprudence        on     the     Sixth        Amendment        and     the    death

penalty.        Further, I believe this misreading is the difference

between Mr. Umaña living and dying.                        The conviction supporting

the     death    sentence       was     a    gang-related          double         murder    that

occurred after an argument in a bar.                             Though this crime was

                                               8
appalling, it is unlikely that it alone would have supported a

death sentence, given Mr. Umaña’s lack of previous convictions.

Rather, the reason Mr. Umaña now faces execution is that the

prosecutor was able to introduce out-of-court accusations from

police     informants          that     accused       Umaña        of     several       previous

murders.     An examination of the government’s summation argument

at    sentencing        demonstrates       this:          nearly        every    page      of   the

transcript references these past murders.                               

    (collecting       references          to     past     murders)          (Gregory,       J.,

dissenting).           For     the    reasons       set   out   in      my   dissent,       these

accusers were not tenable witnesses:                        they would likely not have

withstood    the       scrutiny       of   cross-examination.                Mr.     Umaña      was

never     given        this     chance,       however.             Instead,          the    court

substituted a reliability finding for Umaña’s Sixth Amendment

rights, and the result was that the jury sentenced Umaña to

death.

       As Justice Scalia writes, “[d]ispensing with confrontation

because testimony is obviously reliable is akin to dispensing

with jury trial because a defendant is obviously guilty.”                                       See

Crawford v. Washington, 

, 62 (2004).                                  “This is not

what the Sixth Amendment prescribes.”                        

my view is that this constitutional violation occurred during a

Federal Death Penalty Act trial, in which a jury is required to

make    factual       findings       before    a    death     sentence          is   within     the

permissible           range     of    punishments.              18       U.S.C.       § 3593(e)

(requiring        a     jury     to     find        the     existence        of      enumerated

                                                9
aggravating        factors,    any   additional      aggravating       factors,    and

that    all      aggravating   factors   outweigh      all    mitigating     factors

before death is permissible).                Even in sentencing proceedings,

certain Sixth Amendment rights apply for factfinding that can

increase the range of punishments.                  Ring v. Arizona, 

, 589 (2002).          “[A]ll facts essential to imposition of the

level of punishment that the defendant receives -- whether the

statute calls them elements of the offense, sentencing factors,

or Mary Jane -- must be found by the jury beyond a reasonable

doubt.”       

(Scalia, J., concurring).              Thus, the primary

reason that I believe Supreme Court review is necessary in this

case is because the district court’s decision, and our panel

opinion affirming it, do not heed the clear trend that Crawford

and Ring represent.

       However, even if my view on the reach of the Confrontation

Clause      is   incorrect,    Supreme   Court      review    is   still   vital    in

order to resolve the tension in current death penalty doctrine

and    to    achieve    uniformity     across      federal    prosecutions.        The

panel’s decision is driven in large part by the Supreme Court’s

ruling in Williams v. New York.               

(1949).         That case

held that under the Due Process Clause, the defendant did not

have a right to confront his accusers during New York’s death

sentencing procedure, in which a judge had discretion to reject

a jury-imposed life sentence for a death sentence.                         

I respectfully disagree with the majority opinion is that

since       Williams,   several      lines    of    Supreme    Court    cases     have

                                         10
created    a     sea      change    in     death     penalty     procedure        and       Sixth

Amendment      doctrine.            See    Crawford,     

   (overruling

precedent to find that reliability finding cannot substitute for

cross-examination); Ring, 

(overruling precedent to

find that Sixth Amendment can apply during sentencing); Furman

v.    Georgia,      

   (1972)     (holding      that    death      penalty

cannot be imposed using sentencing procedures that create a risk

of arbitrary and discriminatory enforcement).                         In fact, Williams

was decided before it was even accepted that the Sixth Amendment

applied    to       state     sentencing       procedures      in    the    first          place.

Thus, while the majority and I disagree on the reach of the

Confrontation          Clause,      it    is   clear    that     there     is    tension       in

Supreme Court case law.                   Ring and Crawford suggest a broader

understanding of Sixth Amendment rights and Furman creates more

muscular requirements for death sentencing procedure, and these

developments postdate the Williams decision.                         While Williams has

not    been    overruled,          this    tension     suggests      that       it    must     be

revisited      in     light    of    our    modern     understanding        of       the    Sixth

Amendment       and     the    quality         of    procedure      necessary         for    the

government to take a man’s life.

       More importantly, this tension in Supreme Court case law

has fostered a lack of uniformity in federal death sentencing

procedure that creates intolerable unfairness.                             The end result

is that a defendant’s constitutional rights depend on the whims

or strategic maneuvering of the prosecutor.                          In the absence of

Supreme Court guidance, district courts across the country have

                                                11
reached conflicting views on whether the Confrontation Clause

applies throughout a Federal Death Penalty Act trial, with some

courts adopting my view and others adopting the majority’s view

that       the    rights    only    apply    to    the   initial        stage    of    capital

sentencing.             Compare United States v. Umaña, 

, 633 (W.D.N.C. 2010) (finding Confrontation Clause rights in

first stage of federal capital sentencing but not the second

stage), with United States v. Stitt, 

, 581-82

(E.D. Va. 2010) (finding Confrontation Clause rights in both

stages       of    federal    capital       sentencing),     and        United    States    v.

Sablan, 

(D. Colo. 2007) (same).                                   Circuit

court judges, too, have disagreed on this precise issue. *                                 The

result is that in federal capital trials – the most important

possible proceeding of a defendant’s life -- the scope of a

defendant’s Sixth Amendment rights depends on the district in

which the case is brought.                   See, e.g., 

   (“Absent         guidance    from     the   Supreme      Court     or     the   Fourth

Circuit,          the    district    courts        are   left      to     determine      this

issue.”); United States v. Mills, 

, 1122

(C.D.      Cal.     2006)    (noting    its    struggle      “to    apply       the    Supreme

Court’s decision in Crawford” and lamenting that “recent Supreme
       *
      See Muhammad v. Sec’y, Fla. Dep’t of Corr., 

(11th   Cir.   2013)  (divided   panel  opinion   finding  that
Confrontation Clause does not apply to capital cases after
guilty verdict); United States v. Fields, 

, 324–338
(5th Cir. 2007) (same); Proffitt v. Wainwright, 

,
1252–53 (11th Cir. 1982) (finding a right to cross examine the
author of a psychiatric report under the Sixth Amendment during
sentencing) modified, 

(expressly limiting case to
psychiatric reports).
                                              12
Court decisions complicate the matter”).                         Thus, even if my view

is wrong, Supreme Court review is necessary to ensure fairness

and    uniformity         in        federal    death     cases.         The     scope       of     a

defendant’s        Sixth           Amendment   rights    should      not    depend      on       the

venue in which a case is brought.

       Justice Scalia has lamented that “the repeated spectacle of

a     man’s   going           to    his   death”      without     the      Sixth     Amendment

protection         of    jury        factfinding      “accelerate[s]”         the    “perilous

decline” of “our people’s traditional belief in the right of

trial by jury.”               

(Scalia, J., concurring).

He argues that “we render ourselves callous to the need for that

protection by regularly imposing the death penalty without it.”

believe that these words are as true for the

Confrontation Clause of the Sixth Amendment as they are for the

jury clause.            There is no doubt that Mr. Umaña is being sent to

his death in large part based on accusations of murder for which

he was never charged, much less convicted.                              There is no doubt

that the basis for these accusations was weak and would have

withered      under       the        scorching     sunlight     of      cross-examination.

Mr. Umaña was never given this opportunity, however.                                   For the

Framers       of        the        Constitution,       this     state      of       facts        was

unacceptable when they occurred in England in the infamous Sir

Walter Raleigh trial.                 

, 62.                 I consider

it just as unacceptable today. Accordingly, I dissent.

       Judge Wynn joins in this dissent.



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