United States of America v.  EFRAIN RODRIGUEZ, a/k/a Feratu Rodriguez

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4609 
EFRAIN RODRIGUEZ, a/k/a Feratu
Rodriguez,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-04-114)
Argued: December 2, 2005
Decided: January 3, 2006
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by published opinion. Judge King wrote the
opinion, in which Judge Traxler and Judge Duncan joined.
COUNSEL
ARGUED: Geremy Charles Kamens, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Beth Nicole Gibson, Special
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Frank W. Dunham, Jr., Federal Public Defender, Frances H.

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Pratt, Research and Writing Attorney, Alexandria, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Eugene J. Rossi,
Assistant United States Attorney, Alexandria, Virginia, for Appellee.
OPINION
KING, Circuit Judge:
Appellant Efrain Rodriguez seeks relief from the forty-six-month
sentence imposed upon him after his 2004 guilty plea and conviction
in the Eastern District of Virginia. Rodriguez was convicted of unlaw-
fully entering the United States after having been deported, following
an earlier conviction for an aggravated felony, in violation of 8 U.S.C.
§ 1326(a) and (b)(2). In calculating his sentencing range, the district
court found that Rodriguez had a prior conviction for a crime of vio-
lence and, pursuant to § 2L1.2(b)(1)(A)(ii) of the Sentencing Guide-
lines, applied a 16-level sentencing enhancement. Treating the
Guidelines as mandatory, the court sentenced Rodriguez at the bottom
of his 46-to-57-month sentencing range. Rodriguez objected to the
procedures utilized by the court, contending that they contravened the
Sixth Amendment principles enunciated in Blakely v. Washington,
542 U.S. 296 (2004).
On appeal, Rodriguez challenges his sentence by relying on United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), in which the
Supreme Court applied Blakely’s principles to the Guidelines and
decided that statutory error occurs when a sentencing court treats the
Guidelines as mandatory. As explained below, Rodriguez’s Booker
claim entitles him to relief, and we vacate and remand.
I.
On July 27, 2002, Rodriguez was convicted in the Circuit Court of
Prince William County, Virginia, on two counts of aggravated sexual
battery, in contravention of section 18.2-67.3 of the Virginia Code.
He was sentenced in state court to ten years in custody on each
offense, to be served concurrently, with eight years and eleven
months suspended. On January 13, 2004, following his release from
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state custody, Rodriguez was removed to Mexico. Fifteen days later,
on January 28, 2004, Rodriguez was found in Prince William County
and arrested.
On March 28, 2004, the federal grand jury returned a single count
indictment charging Rodriguez with violating 8 U.S.C. § 1326(a) and
(b)(2),1 by entering and being found in the United States following
deportation, "after having been convicted of an aggravated felony."
J.A. 6-7.2 Rodriguez pleaded guilty to this offense on April 20, 2004.
In connection with his plea, he executed a Statement of Facts, by
which he admitted entering the United States "after being removed
. . . subsequent to a conviction for the commission of an aggravated
felony." J.A. 18.
Rodriguez’s presentence report (the "PSR"), filed on June 3, 2004,
recommended a base offense level of 8, as provided for in § 2L1.2(a).
It further recommended a finding that Rodriguez had been convicted
of a crime of violence prior to his removal, and advised the court to
apply the 16-level enhancement provided for in § 2L1.2(b)(1)(A)(ii).3
The PSR also recommended granting Rodriguez a 3-level reduction
for acceptance of responsibility, yielding a total offense level of 21.
1Section 1326(a) of Title 8 provides for a sentence of up to two years
for an alien who, after being removed, enters the United States without
permission. Section 1326(b)(2) authorizes an enhanced sentence of up to
twenty years for an alien who contravenes § 1326(a) and "whose removal
was subsequent to a conviction for commission of an aggravated felony."
2Our citations to "J.A. ___" refer to the contents of the Joint Appendix
filed by the parties in this appeal.
3Section 2L1.2(b) of the Guidelines provides for various sentencing
enhancements based upon a defendant’s criminal history at the time of
his removal. Section 2L1.2(b)(1)(A)(ii) provides for a 16-level increase
if the defendant had a prior felony conviction for "a crime of violence,"
and § 2L1.2(b)(1)(C), an alternative provision, requires an 8-level
increase if the defendant had previously been convicted of an aggravated
felony. The Application Note to § 2L1.2(b), as relevant here, defines
"crime of violence" to include "forcible sex offenses, statutory rape, sex-
ual abuse of a minor, . . . or any offense . . . that has as an element the
use, attempted use, or threatened use of physical force against the person
of another." USSG § 2L1.2, comment. (n.1(B)(iii)).
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Calculating Rodriguez’s criminal history category as III, the PSR’s
recommended sentencing range was 46 to 57 months.
On June 24, 2004, as Rodriguez awaited sentencing, the Supreme
Court issued its decision in Blakely v. Washington, 542 U.S. 296
(2004), concluding that the State of Washington’s mandatory sentenc-
ing guidelines contravened the Sixth and Fourteenth Amendments.
On July 9, 2004, relying on Blakely, Rodriguez filed a written objec-
tion to the PSR, contending, inter alia, that application of the 16-level
enhancement for a crime of violence (provided for in § 2L1.2(b)(1)
(A)(ii)), rather than the 8-level enhancement (provided for in
§ 2L1.2(b)(1)(C)) for an aggravated felony (which he admitted in his
guilty plea), would contravene his rights under the Sixth Amend-
ment’s Jury Clause.4
At his sentencing hearing, conducted on July 26, 2004, Rodriguez
renewed his Blakely objection. Had the sentencing court applied the
8-level enhancement Rodriguez requested, instead of the 16-level
enhancement proposed by the PSR, Rodriguez’s total offense level
would have been 13, yielding a sentencing range of 18 to 24 months.
Adopting the PSR’s crime-of-violence recommendation, the court
found "the Guidelines factors to be properly assessed at a range of 46
to 57 months," and it sentenced Rodriguez under the then-mandatory
Guidelines to forty-six months in custody. J.A. 39.5 Rodriguez has
timely noted this appeal and we possess jurisdiction pursuant to 28
U.S.C. § 1291.
4The Jury Clause ensures that "[i]n all criminal prosecutions, the
accused shall enjoy the right to . . . trial, by an impartial jury." U.S.
Const. amend. VI.
5Rodriguez was sentenced prior to our decision in United States v.
Hammoud, 381 F.3d 316 (4th Cir. 2004) (en banc), vacated, 125 S. Ct.
1051 (2005), and the sentencing court did not announce an alternative
sentence, see Hammoud, 381 F.3d at 353 (recommending in wake of
Blakely that sentencing courts announce alternative sentences pursuant to
18 U.S.C. § 3553(a), treating Guidelines as advisory).
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II.
There are, as a general proposition, two types of Booker errors.
First, a sentencing court commits Sixth Amendment error if it
enhances a sentence beyond the maximum authorized by facts found
by a jury beyond a reasonable doubt or admitted by the defendant. See
Booker, 125 S. Ct. at 756; United States v. White, 405 F.3d 208, 215
(4th Cir. 2005). Second, a court commits statutory error if it treats the
Guidelines as mandatory, rather than as advisory ("statutory Booker
error"). See Booker, 125 S. Ct. at 757; White, 405 F.3d at 215. In this
case, the sentencing court committed statutory Booker error in treat-
ing the Guidelines as mandatory.
A.
We must begin our analysis of Rodriguez’s claim of statutory
Booker error by assessing the scope of our review, i.e., whether our
review is for plain error or harmless error.6 Where a defendant has
raised an issue for the first time on appeal, our review is for plain
error only. See Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 731-32 (1993). A defendant seeking to overturn a ruling
under the plain-error test bears the burden of showing (1) that an error
occurred, (2) that it was plain, and (3) that the error affected his sub-
stantial rights. Olano, 507 U.S. at 732. In any event, the correction of
a plain error lies within our discretion, which we "should not exercise
. . . unless the error seriously affects the fairness, integrity or public
6At oral argument, the Government conceded that Rodriguez is entitled
to resentencing due to statutory Booker error. This concession does not
end our inquiry, however, as we are not at liberty to vacate and remand
for resentencing on the Government’s concession of error alone. See
Orloff v. Willoughby, 345 U.S. 83, 87 (1953) ("This Court, of course, is
not bound to accept the Government’s concession that the courts below
erred on a question of law. [Those courts] accepted the Government’s
argument as then made and, if they were right, we should affirm."); 5
C.J.S. Appeal and Error § 748 ("[C]oncession of a point on appeal is by
no means dispositive of a legal issue."); see also Roberts v. Galen of Vir-
ginia, Inc., 525 U.S. 249, 253 (1999) (per curiam) ("Although the con-
cession of a point on appeal by respondent is by no means dispositive of
a legal issue, we take it as further indication of the correctness of our
decision today . . . .").
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reputation of judicial proceedings." Id. (internal quotation marks and
alteration omitted).
In White, we applied plain error analysis to an unpreserved claim
of statutory Booker error, concluding that such an error was not
within the class of errors for which prejudice is presumed, and also
deciding that such an error was not a structural error which should be
noticed regardless of its effect. See 405 F.3d at 221-22. Accordingly,
in order to obtain relief for an unpreserved statutory Booker error, a
defendant is obliged to satisfy the standard enunciated in Kotteakos
v. United States, 328 U.S. 750, 765 (1946), by showing that, "after
pondering all that happened without stripping the erroneous action
from the whole, the judgment was substantially swayed by the error."
White, 405 F.3d at 223 (internal quotation marks and alterations omit-
ted). Relying on the absence of any statement by the sentencing court
"that it wished to sentence White below the guideline range but that
the guidelines prevented it from doing so," there was "no nonspecula-
tive basis" for finding prejudice, and we affirmed White’s sentence.
Id. at 223-24.
Rodriguez’s sentencing proceedings similarly lack any indication
that the court would have imposed a different sentence under an advi-
sory Guidelines regime. If plain error analysis controlled our review,
we would thus be constrained to conclude that the sentencing court
did not reversibly err in treating the Guidelines as mandatory (the
Government’s concession notwithstanding).
We conclude, however, that Rodriguez properly preserved his
claim of statutory Booker error by raising a timely Blakely objection
at sentencing. We are therefore obliged to review his preserved claim
of statutory Booker error for harmless error. Our position on this issue
is consistent with the unanimous view of the nine courts of appeals
to have considered the question.7 See United States v. Geames, 427
F.3d 1333, 1339 (10th Cir. 2005) (concluding that statutory Booker
7As of now, the First, Second, Fifth, Sixth, Seventh, Eighth, Ninth,
Tenth, and Eleventh Circuits have addressed the issue of whether a
Blakely objection is sufficient to preserve a claim of statutory Booker
error. Each of them, as spelled out above, has concluded that a Blakely
objection suffices to preserve such a claim.
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error was preserved by Blakely objection); United States v. Oates, 427
F.3d 1086, 1091 (8th Cir. 2005) (same); United States v. Burke, 425
F.3d 400, 416-17 (7th Cir. 2005) (same); United States v. Mathenia,
409 F.3d 1289, 1291 (11th Cir. 2005) (per curiam) (same); United
States v. Fagans, 406 F.3d 138, 141 n.1 (2d Cir. 2005) (same); United
States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005) (same); see
also United States v. Vialpando, No. 04-50955, 2005 WL 2600130,
at *1 (5th Cir. Oct. 13, 2005) (unpublished per curiam) (concluding
that statutory Booker error was preserved by Blakely objection);
United States v. Thomas, 138 Fed. Appx. 759, 762 (6th Cir. July 12,
2005) (unpublished) (same); United States v. Mitchell, 133 Fed.
Appx. 449, 450 (9th Cir. June 7, 2005) (unpublished memorandum)
(same).
Although a Blakely objection could, as the Second Circuit recently
observed, "be viewed as limited to preserving only a Sixth Amend-
ment objection," a defendant raising such an objection has "suffi-
ciently alerted the [sentencing court] to his claim that it was unlawful
to use the Guidelines in a compulsory manner." See Fagans, 406 F.3d
at 141 n.1. As the Fagans court further explained, "we now know that
the compulsory use of the Guidelines . . . constitutes error, whether
the error is considered punishment without due process of valid law
or statutory error." See id. By interposing a Blakely objection, Rodri-
guez plainly notified the court of his position that he was being sen-
tenced illegally, and he identified the line of Supreme Court precedent
upon which he now relies. Accordingly, his claim of statutory Booker
error is properly preserved, and we review it for harmless error.
B.
Pursuant to Rule 52(a) of the Federal Rules of Criminal Procedure,
"[a]ny error . . . that does not affect substantial rights must be disre-
garded." In reviewing for harmless error, a defendant is thus entitled
to relief if an error has affected his substantial rights. The prejudice
inquiry under harmless error review differs from the inquiry under
plain error review in that, under harmless error, the burden is on the
Government to show that such an error did not affect the defendant’s
substantial rights. See Olano, 507 U.S. at 734.
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Applying harmless error review in this appeal, Rodriguez is clearly
entitled to be resentenced. The sentencing court erred in treating the
Guidelines as mandatory, see White, 405 F.3d at 217, and such error
prejudiced Rodriguez. As in White, the court offered no indication of
whether it might have imposed a different sentence had it considered
the § 3553(a) factors under an advisory Guidelines regime. This case
differs from White, however, in that Rodriguez raised and preserved
his legal point in a timely manner. The prejudice burden therefore
falls on the Government, and the sentencing court’s silence must be
interpreted in favor of Rodriguez. Accordingly, we must conclude
that Rodriguez was prejudiced when the court treated the Guidelines
as mandatory. We are thus obliged to vacate Rodriguez’s sentence
and remand for further proceedings.8
III.
Pursuant to the foregoing, we vacate Rodriguez’s sentence and
remand for such other and further proceedings as may be appropriate.
VACATED AND REMANDED
8Because we vacate Rodriguez’s sentence for statutory Booker error,
we need not decide whether, as Rodriguez also contends, the sentencing
court committed Sixth Amendment error in concluding that he had been
convicted of a crime of violence. The Government, however, represented
at oral argument that it could readily establish on remand, by virtue of
Rodriguez’s Virginia indictment, that his convictions in Prince William
County were for crimes of violence within § 2L1.2(b)(1)(A)(ii) of the
Guidelines.
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