We commence with Circuit Judge Lynch's main opinion, wherein she states:
This sounds as if the guidelines range were presumptively correct. Was this not one of the examples where the First Circuit in Antonakopoulos would remand for resentencing, i.e., when the District Court expressed that it would have imposed a lesser sentence were it not for the mandatory nature of the guidelines?
We have recently set forth the applicable framework for review of unpreserved Booker claims in Antonakopoulos. Utilizing the four-prong test in United States v. Olano, 507 U.S. 725 (1993), there must be (1) an error (2) that is plain, and it (3) affects substantial rights and (4) seriously impairs the fairness, integrity, or public reputation of judicial proceedings. Antonakopoulos, 2005 WL 407365, at *4. The first two prongs of the plain error test are met whenever the district court treated the Guidelines as mandatory at the time of sentencing. Id. But to meet the third prong of the test, the defendant must persuade us that there is a "reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new 'advisory Guidelines' Booker regime." Id. "[I]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice under plain-error analysis." Id. at *6 (citations and internal quotation marks omitted).
Serrano relies upon the district judge's statement at the sentencing hearing: "I have to consider the fact that I cannot sentence him to 60 months. The lowest I can sentence him on that particular situation is 63." This statement, he argues, makes it "clear that the district court would have sentenced [Serrano] to 60 months in prison instead of 63 on count one." Not so. Given Serrano's criminal history category and his role as recruiter, and the amount of drugs involved, the court's statement was a simple statement of fact. The statutory minimum, without the enhancements, was 60 months. He was sentenced to 63 months, out of a possible range of 63 to 78 months. Serrano's argument amounts to an assertion that there was such a reasonable probability that the judge would have totally ignored Serrano's role in the offense and prior conviction and that our confidence in the outcome is undermined by the fact that the judge actually considered these two enhancements. Even post-Booker, the district court "must consult those Guidelines and take them into account when sentencing." Booker, 543 U.S. at __, 125 S. Ct. at 767. And so the court had to consider both role in the offense and his criminal history. Serrano has failed to meet his burden.
In a concurrence in Serrano-Beauvaix by Circuit Judge Kermit V. Lipez, joined by Circuit Judge Juan R. Torruella, while agreeing with much of Antonakopoulos, expresses disagreement with a critical part of Antonakopoulos: the requirement that in cases of unpreserved Booker errors defendant bear the burden of showing prejudice.
Judge Lipez then goes on to carefully explain why he favors this approach, and his explanation is certainly the more reasonable and convincing one to us. We hope that the approach urged by Judges Lipez and Torruella is adopted by the en banc Court sometime soon.
I do not believe that we should require defendants invoking unpreserved Booker error to make a specific showing of prejudice (the reasonable probability of a different outcome) to satisfy the third step of plain-error review. Rather, such error should entitle the defendant to a presumption of prejudice, which the government can then try to rebut. This approach, adopted by a panel of the Sixth Circuit in United States v. Barnett, No. 04- 5252, 2005 WL 357015 (6th Cir. Feb. 16, 2005), is well grounded in Supreme Court precedent and has been applied by our sister circuits in other contexts "where the inherent nature of the error made it exceptionally difficult for the defendant to demonstrate that the outcome of the lower court proceeding would have been different had the error not occurred." Id. at *9.