United States of America v. Saul Ramirez-Castillo

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4158
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SAUL RAMIREZ-CASTILLO,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (9:11-cr-02365-SB-1)
Argued: March 18, 2014 Decided: April 30, 2014
Before GREGORY, WYNN, and THACKER, Circuit Judges.
Vacated and remanded by published opinion. Judge Thacker wrote
the opinion, in which Judge Gregory and Judge Wynn joined.
ARGUED: Cameron Jane Blazer, SAVAGE LAW FIRM, Charleston, South
Carolina, for Appellant. Robert Nicholas Bianchi, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee. ON BRIEF: William N. Nettles, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.

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THACKER, Circuit Judge:
In this appeal, we review the propriety of a prison
sentence imposed subsequent to a jury trial in which the jury
made two specific factual findings but never returned a guilty
verdict. Saul Ramirez-Castillo (“Appellant”) challenges his
conviction and sentence for possession of a prohibited object by
a federal inmate. On December 14, 2011, Appellant was charged
in a single-count indictment with “knowingly possess[ing]
prohibited objects, that is, two homemade weapons,” while an
inmate at a Federal Correctional Institute in Estill, South
Carolina (“FCI Estill”), in violation of 18 U.S.C.
§§ 1791(a)(2), (b)(3), and (c). A jury trial was held on
September 25, 2012. At the conclusion of the evidence, the
district court charged the jury with determining: (1) whether
the first object at issue was a “weapon”; and (2) whether the
second object at issue was possessed by Appellant. The jury
answered “yes” to each question, but was never asked to
determine whether Appellant was “guilty” or “not guilty” of the
charged offense. Although the jury never returned a guilty
verdict, the parties proceeded to sentencing on February 21,
2013. Appellant was sentenced to 33 months’ imprisonment, to be
served consecutively to his prior undischarged term of
imprisonment of 66 months.

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Because we conclude the district court violated
Appellant’s right to have a jury determine his guilt beyond a
reasonable doubt, we vacate Appellant’s conviction and sentence,
and we remand the case to the district court.
I.
A.
On November 5, 2011, while Appellant was serving a 66-
month sentence for illegal re-entry after deportation at FCI
Estill, prison officials conducted two searches that gave rise
to the charges in this case. The first search was a pat-down of
Appellant’s person, during which a prison official found an
object, described as “[a] homemade shank, approximately five
inches long, with a sharp point,” J.A. 33 (“Exhibit 1”),1 inside
of Appellant’s pocket. After discovering Exhibit 1, prison
officials conducted a search of Appellant’s jail cell and
locker. Inside Appellant’s locker, prison officials found a
nine-and-a-half-inch piece of metal, sharpened to a point on one
end (“Exhibit 2”). Appellant’s locker also contained four pairs
of shoes, as well as several of Appellant’s personal items.
Appellant did not waive his right to a trial by jury,
and trial commenced on September 25, 2012. Testifying in his
1 Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.

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own defense, Appellant admitted to making and possessing Exhibit
1, claiming that he used it as a tool to alter or fix ill-
fitting shoes. Further, Appellant identified several pairs of
shoes that were recovered from his locker and stated that he had
either sewn patches or attached new soles to those shoes.
Appellant also testified that he never used Exhibit 1 as a
weapon and that he never planned to use it as a weapon. On
cross-examination, however, Appellant acknowledged that if he
were attacked and his life was in danger, he would use Exhibit 1
to defend himself against such an attack. With respect to
Exhibit 2, Appellant acknowledged that, based on its appearance,
Exhibit 2 could seriously hurt someone. However, Appellant
testified that he had never seen Exhibit 2 before the search nor
had he used it for any reason. On cross-examination, Appellant
also stated that his locker had a combination lock on it, that
no one else had the combination, and that he was the only one
who had access to the locker.
B.
Several times during the trial, Appellant’s counsel
and Government counsel discussed possible jury instructions and
verdict forms with the district court. Just before the close of
the Government’s case, Appellant’s counsel summarized for the
district court the issues that she believed were contested: “As
to the first thing [Exhibit 1], the issue is whether the thing

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is a weapon. As to the second thing [Exhibit 2], the issue is
whether the thing was possessed.” J.A. 73. Thus, Appellant’s
counsel stated, “it may behoove us, notwithstanding the fact
that they were indicted in a single count together, to prepare a
special verdict form that allows the jury to walk through [the
Exhibits] item by item.” Id. Government counsel suggested
preparing a verdict form that separately listed Exhibit 1 and
Exhibit 2 and asked the jury to find Appellant “guilty” or “not
guilty” as to each Exhibit. Id. at 74. The district court,
however, indicated that it did not “know that that’s any
different from telling the jury that in order to find
[Appellant] guilty, . . . they’ve got to find he had possession
of one of these [Exhibits] that they considered to be a weapon.”
Id. The district court then asked Appellant’s counsel, “[d]oes
that suit you . . . ?” Id. at 75. Appellant’s counsel replied,
“[t]hat would be just fine, Your Honor.” Id.
During a subsequent discussion about the verdict form,
the following exchange occurred:
THE COURT: Ms. Blazer [Appellant’s Counsel], as I
understand that from [Appellant]’s, really
[Appellant]’s own testimony, in so far as possession
to Exhibit 1, he admits that?
MS. BLAZER: Yes.
THE COURT: And so far as the Exhibit 2, [Appellant]
admits that that satisfies as a weapon?

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MS. BLAZER: That . . . is a reasonable conclusion for
the jury to draw, yes, Your Honor.
THE COURT: Do I -- I was thinking about charging the
jury as to [Exhibit] 1 that they had to determine
whether it was a weapon --
MS. BLAZER: Yes.
THE COURT: -- and nothing else.
MS. BLAZER: As to Exhibit 1, yes, Your Honor.
THE COURT: And as to [Exhibit] 2, they have to
determine whether he possessed it.
MS. BLAZER: Yes, Your Honor, I agree completely.
THE COURT: Now, Mr. United States Attorney, you agree
with this?
MR. BIANCHI [Government Counsel]: I do, Your Honor.
I think it’s undisputed on Exhibit 2 at this point.
J.A. 114-15. Appellant’s counsel also noted, “just out of an
abundance of caution,” that “implicit in number 1 and number 2
on this verdict form is that if the answer to either number 1 or
number 2 is yes, then the jury would be finding [Appellant]
guilty,” but that “[i]f the answer to both is no, the jury must
find him not guilty.” Id. at 115. The district court agreed
that if the jury answered “no” to both questions, the court
would find, “as a matter of law,” that Appellant was not guilty.
See id. at 115-16. Appellant’s counsel agreed, describing the
verdict form as the jury’s “verdict as a finding of fact.” Id.
at 116. Despite this “implicit” understanding by the district
court and the parties, nowhere did the proposed verdict form

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require the jury to determine whether Appellant was “guilty” or
“not guilty.” At the conclusion of this exchange, Government
counsel acknowledged that he was satisfied with a verdict form
of this nature.
Ultimately, the district court drafted a verdict form
that posed only the following two questions:
(1) Do you, the jury, unanimously find that Government’s
Exhibit One is a weapon?
(2) Do you, the jury, unanimously find that [Appellant]
possessed Government’s Exhibit Two?
J.A. 136. In its oral jury instructions, the district court
explained that for Appellant to be found guilty, the jury was
required to find the following elements beyond a reasonable
doubt:
First, that [Appellant] was an inmate of the federal
correctional facility.
Two, that [Appellant] possessed the prohibited object,
specifically a weapon.
Three, that he did so without the knowledge and
consent of the warden or superintendent of the
facility.
And four, that he did so knowingly and willfully.
Id. at 122-23.
The district court then proceeded to explain the
verdict form to the jury. The court began by noting that the
parties had agreed Appellant possessed Exhibit 1, so the “issue
as to Exhibit Number 1 is whether it’s a weapon as I’ve defined

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a weapon.” J.A. 127. The district court continued, “the issue
. . . as to Exhibit Number 2, is did [Appellant] possess that.
Everyone agreed that that’s a weapon.” Id.2 After the court
finished its instructions, the jury began deliberating.
Later that day, the jury reached a decision regarding
the two questions asked of it, which was read in open court. As
to the first question on the verdict form, the jury answered
“yes,” unanimously finding that Exhibit 1 was a weapon. As to
the second question, the jury also answered “yes,” unanimously
finding that Appellant possessed Exhibit 2. The district court
then thanked the jury for its service, and the jury was excused
without making any other findings.
C.
Appellant’s Presentence Report calculated his total
offense level at 13, pursuant to United States Sentencing
Guideline § 2P1.2(a)(2). In addition, 14 criminal history
points placed Appellant in criminal history category VI. Based
on a total offense level of 13 and a criminal history category
of VI, the Sentencing Guideline range for imprisonment was 33 to
41 months, consecutive to any other term. On February 21, 2013,
2 As part of its presentation of evidence at trial, the
Government did not provide the jury with any formal stipulations
concerning the facts that the district court described as
“agreed” upon by the parties.

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after holding a sentencing hearing, the district court imposed a
sentence of 33 months’ imprisonment, to be served consecutively
to Appellant’s sentence for illegal reentry. On February 25,
2013, the district court issued a judgment order, which
indicated that Appellant was “adjudicated guilty” of possessing
contraband in prison, in violation of 18 U.S.C. §§ 1791(a)(2),
(b)(3), and (c). J.A. 158. Appellant timely appealed from this
judgment order. We possess jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a).
II.
Appellant raises a number of challenges to his
conviction and sentence. Because it will be dispositive of this
appeal, we address only the propriety of Appellant’s prison
sentence imposed by the district court after a jury simply made
two factual findings but did not return a general verdict of
“guilty” or “not guilty.”
Before proceeding to the merits of this issue,
however, we must determine the applicable standard of review.
Appellant acknowledges that his trial counsel did not raise an
objection to the special verdict form as drafted by the district
court and, therefore, asserts that our review should be for
plain error. The Government, however, contends that if the
district court’s use of the special verdict form was erroneous,

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any error was invited by Appellant and is thus unreviewable on
appeal.
Pursuant to the “invited error” doctrine, “‘a court
can not be asked by counsel to take a step in a case and later
be convicted of error, because it has complied with such
request.’” United States v. Herrera, 23 F.3d 74, 75 (4th Cir.
1994) (quoting Shields v. United States, 273 U.S. 583, 586
(1927)). However, where an appellant simply fails to raise an
objection on a particular issue that is before the district
court, our review is for “plain error.” See Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993).
Based on our review of the record, we conclude that
Appellant did not invite any alleged error below. While it is
true that Appellant’s counsel first proposed utilizing a special
verdict form in this case, it was the district court that
rejected Government counsel’s additional suggestion that the
verdict form should ask the jury for a “guilty” or “not guilty”
finding as to Exhibit 1 and Exhibit 2. The district court
drafted the questions that eventually went to the jury, and both
parties accepted those questions without objection. Therefore,
this is a case in which an unpreserved error is being raised for
the first time on appeal, and we review the issue for plain
error.

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III.
Our authority to review errors not brought to the
attention of the district court is derived from Federal Rule of
Criminal Procedure 52(b), which provides, “[a] plain error that
affects substantial rights may be considered even though it was
not brought to the court’s attention.” Fed. R. Crim. P. 52(b).
Pursuant to Rule 52(b), we may correct a forfeited error only if
an error was made, the error is plain, and the error affects
substantial rights. See Henderson v. United States, 133 S. Ct.
1121, 1126 (2013); United States v. Olano, 507 U.S. 725, 732
(1993). Because “Rule 52(b) is permissive, not mandatory,”
Olano, 507 U.S. at 735, even after the above three-part showing
has been made, the decision to correct the error remains within
our discretion, see United States v. Carthorne, 726 F.3d 503,
510 (4th Cir. 2013). The Supreme Court has explained that the
standard guiding the exercise of an appellate court’s remedial
discretion is whether “the error ‘seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.’” Olano, 507 U.S. at 736 (quoting United States v.
Atkinson, 297 U.S. 157, 160 (1936) (alteration in original)).
Accordingly, we will correct an unpreserved error if
(1) an error was made; (2) the error is plain; (3) the error
affects substantial rights; and (4) the error seriously affects
the fairness, integrity, or public reputation of judicial

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proceedings. See Henderson, 133 S. Ct. at 1126-27. With this
standard in mind, we turn to the instant case.
A.
We begin our plain error analysis by considering
whether the district court erred when it failed to require the
jury in Appellant’s trial to return a general verdict of
“guilty” or “not guilty” and instead presented the jury with a
special verdict form that merely asked for two factual findings.
The Due Process Clause of the Fifth Amendment and the
jury trial guarantee of the Sixth Amendment “require criminal
convictions to rest upon a jury determination that the defendant
is guilty of every element of the crime with which he is
charged, beyond a reasonable doubt.” United States v. Gaudin,
515 U.S. 506, 509-10 (1995). The right to a trial by jury
“includes, of course, as its most important element, the right
to have the jury, rather than the judge, reach the requisite
finding of ‘guilty.’” Sullivan v. Louisiana, 508 U.S. 275, 277
(1993) (citing Sparf v. United States, 156 U.S. 51, 105–06
(1895)); see also United States v. Muse, 83 F.3d 672, 679 (4th
Cir. 1996) (explaining that it is a “fundamental principle that
if a defendant avails himself of his Sixth Amendment right to
trial by jury, only the jury can reach the requisite finding of
‘guilty’” (internal quotation marks omitted)). When a defendant
has not knowingly, voluntarily, and intelligently waived his or

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her right to a trial by jury, see Fed. R. Crim. P. 23(a); United
States v. Boynes, 515 F.3d 284, 287 (4th Cir. 2008), a court may
not enter a judgment of conviction “no matter how overwhelming
the evidence,” Sullivan, 508 U.S. at 277; see also United States
v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977).
As the Supreme Court has noted, “[t]he right to have a
jury make the ultimate determination of guilt has an impressive
pedigree.” Gaudin, 515 U.S. at 510. The jury trial guarantee
embodied in the Sixth Amendment “reflect[s] a fundamental
decision about the exercise of official power -- a reluctance to
entrust plenary powers over the life and liberty of the citizen
to one judge or to a group of judges.” Duncan v. Louisiana, 391
U.S. 145, 156 (1968). In addition to the jury trial’s
historical underpinnings, “[t]he more modern authorities . . .
also confirm[] that the jury’s constitutional responsibility is
not merely to determine the facts, but to apply the law to those
facts and draw the ultimate conclusion of guilt or innocence.”
Gaudin, 515 U.S. at 514 (internal citations omitted).
The case law in this circuit is consistent with these
authorities. As we have recognized, after a trial judge has
instructed the jury on the applicable law, “the next two steps
are strictly for the jury: (1) determining the facts as to each
element of the crime, and (2) applying the law as instructed by
the judge to those facts.” United States v. Johnson, 71 F.3d

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139, 142 (4th Cir. 1995). It is, therefore, an “error of
constitutional magnitude” for the trial judge to “instruct[] the
jury as a matter of law that a fact essential to conviction has
been established by the evidence, thus depriving the jury of the
opportunity to make this finding.” Id. (internal quotations
omitted); see also United States v. Jinwright, 683 F.3d 471, 479
(4th Cir. 2012) (explaining that “[a] court runs afoul of [the
Fifth and Sixth Amendments’] protection when it issues an
instruction that relieves the government of its burden of proof
with respect to an element of a charged offense”).
In the instant case, we do not hesitate to conclude
that Appellant’s right to have a jury determine his guilt beyond
a reasonable doubt was violated. Appellant was charged pursuant
to 18 U.S.C. § 1791, which makes it crime for an inmate of a
federal prison to knowingly “make[], possess[], or obtain[], or
attempt[] to make or obtain, a prohibited object.” 18 U.S.C.
§ 1791(a)(2); United States v. Mobley, 687 F.3d 625, 631 (4th
Cir. 2012) (explaining that “a conviction under § 1791(a)(2)
requires proof that the inmate knowingly possessed the
prohibited object” (emphasis in original)). A prohibited
objected is, among other things, “a weapon (other than a firearm
or destructive device) . . . .” Id. § 1791(d)(1)(B).
Instead of asking the jury to determine whether
Appellant was guilty, beyond a reasonable doubt, of each element

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of the charged offense, the district court instructed the
members of the jury that they need not concern themselves with
certain elements of the crime. With respect to Exhibit 1, the
court instructed the jury that the parties had agreed that
Appellant possessed the object in question, so “the issue as to
Exhibit Number 1 is whether it’s a weapon as I’ve defined a
weapon.” J.A. 127. The district court continued, stating that
“the issue . . . as to Exhibit Number 2, is did [Appellant]
possess that. Everyone agreed that that’s a weapon.” Id.3 In
giving these instructions, the district court invaded the jury’s
province by declaring that certain facts essential to conviction
had been conclusively established. See Johnson, 71 F.3d at 142;
Muse, 83 F.3d at 680 (“A court may not by-pass the jury and
enter its own finding that the element has been established.”).
What is even more troubling is that the jury never
actually returned a guilty verdict. In fact, it was never given
the opportunity to do so. To be sure, the district court
presented the jury with a special verdict form containing only
the following questions: “(1) Do you, the jury, unanimously find
that Government’s Exhibit One is a weapon?”; and “(2) Do you,
3 Notably, although the district court told the jury that
the parties had “agreed” that certain facts were established, at
no point during the presentation of the evidence did the
Government provide the jury with any stipulations as to the
existence of these facts in order to meet its burden of proof.

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the jury, unanimously find that [Appellant] possessed
Government’s Exhibit Two?” J.A. 136. The jury simply answered
“yes” to each question, thereby making two discrete factual
determinations. Appellant’s counsel even referred to the
verdict form as the jury’s “verdict as a finding of fact.” Id.
at 116.4 The jury neither determined whether the remaining facts
essential to conviction were established beyond a reasonable
doubt, nor did it find Appellant guilty of the charged offense.5
As we have explained, “the jury’s constitutional
responsibility is not merely to determine the facts, but to
apply the law to those facts and draw the ultimate conclusion of
guilt or innocence.” Gaudin, 515 U.S. at 514 (internal
4 Even during oral argument, Appellant’s counsel did not
seem to fully appreciate the constitutional magnitude of the
situation. Indeed, when the panel asked Appellant’s counsel
whether the jury’s answers to the questions presented on the
verdict form were indicative of Appellant’s guilt or innocence,
Appellant’s counsel replied, “The answering of those questions
clearly indicates . . . that the jury found facts . . . that the
judge could use to make a finding of law as to guilt.” See Oral
Argument at 02:09–02:33, United States v. Ramirez-Castillo, No.
13–4158 (Mar. 18, 2014), available at http://www.ca4.uscourts.
gov/oral-argument/listen-to-oral-arguments.
5 Indeed, the special verdict form did not ask the jury to
consider whether Appellant possessed Exhibit 1 or Exhibit 2
knowingly, see Mobley, 687 F.3d at 631 (knowing possession
required), or whether Appellant was a prisoner at the time of
the alleged offense, see 18 U.S.C. § 1791(a)(2) (status as
prisoner required). Even if the evidence supporting these
elements is overwhelming, a court still cannot direct a verdict
for the government. See Sullivan, 508 U.S. at 277.

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citations omitted) (emphasis supplied). Here, the district
court erred when it treated the jury as a mere fact finder with
respect to the elements the court considered to be in dispute,
and thereby prevented the jury from making the ultimate,
indispensable conclusion of whether Appellant was guilty or not
guilty.6 The district court did exactly what is prohibited --
it, in essence, directed a verdict of “guilty” for the
Government and proceeded to sentence Appellant to a term of
incarceration. In doing so, the court violated Appellant’s jury
trial guarantee. Accordingly, we conclude that the district
court erred.
B.
Having determined that the district court erred, we
must decide whether the error is plain. To be “plain,” an error
must be “clear” or “obvious,” Olano, 507 U.S. at 734, “at the
6 Although there is “a presumption against special verdicts
in criminal cases,” the decision “to use a special verdict form
is a matter of the district court’s discretion.” United States
v. Udeozor, 515 F.3d 260, 271 (4th Cir. 2008) (internal
quotation marks omitted). The problem in the instant case,
however, is that the question of Appellant’s guilt was never
presented to the jury. Indeed, had the district court asked the
jury to first determine Appellant’s guilt with respect to
Exhibit 1 and Exhibit 2, and then provided it with a special
verdict form to make certain factual findings, this might be a
different case. Cf. id. at 270-71 (upholding the use of a
special verdict form where the first page “asked the jury to
determine [defendant’s] guilt on each of the three charged
counts” and “the second page asked the jury to answer ‘yes’ or
‘no’ questions regarding three special findings”).

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time of appellate consideration,” Henderson, 133 S. Ct. at 1130
(internal quotation marks omitted). An error is clear or
obvious “if the settled law of the Supreme Court or this circuit
establishes that an error has occurred.” Carthorne, 726 F.3d at
516 (internal quotation marks omitted). In light of the well-
settled Supreme Court decisions described above, including
Sullivan and Gaudin, which unequivocally prohibit a court from
directing a verdict against a defendant and instead require a
jury to make the requisite finding of “guilty” beyond a
reasonable doubt, we conclude the error in this case is plain.
C.
Because the district court committed “error” and that
error is “plain,” we must next consider whether the error
affected Appellant’s substantial rights. As the Supreme Court
in Olano explained, the phrase “affects substantial rights” “in
most cases . . . means that the error must have been
prejudicial” -- that is, “[i]t must have affected the outcome of
the district court proceedings.” 507 U.S. at 734. However, the
Court went on to note, “[t]here may be a special category of
forfeited errors that can be corrected regardless of their
effect on the outcome.” Id. at 735. This language refers to
“structural errors.” See United States v. Marcus, 560 U.S. 258,
263 (2010); United States v. White, 405 F.3d 208, 221 (4th Cir.
2005). Although the Supreme Court has expressly reserved the

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question of whether structural errors automatically satisfy the
third prong of Olano, see Puckett v. United States, 556 U.S.
129, 140-41 (2009), we have held that such errors necessarily
affect substantial rights, satisfying Olano’s third prong, see
United States v. David, 83 F.3d 638, 647 (4th Cir. 1996).
Therefore, if the error in the instant case is structural, the
third prong of Olano is satisfied.7
A structural error is a “defect affecting the
framework within which the trial proceeds, rather than simply an
error in the trial process itself.” Arizona v. Fulminante, 499
U.S. 279, 310 (1991). Because structural errors are “defects in
the constitution of the trial mechanism,” they “defy analysis by
‘harmless-error’ standards.” Id. at 309. Indeed, such errors
“deprive defendants of ‘basic protections’ without which ‘a
criminal trial cannot reliably serve its function as a vehicle
for determination of guilt or innocence . . . and no criminal
punishment may be regarded as fundamentally fair.’” Neder v.
7 Of course, simply because an error may be structural does
not bring it outside of plain error review. See Johnson v.
United States, 520 U.S. 461, 466 (1997) (rejecting the argument
that a structural error is outside the scope of Federal Rule of
Criminal Procedure 52(b) and noting that “the seriousness of the
error claimed does not remove consideration of it from the ambit
of the Federal Rules of Criminal Procedure”); United States v.
Robinson, 275 F.3d 371, 383 n.4 (4th Cir. 2001) (explaining that
“it is well settled in this circuit that plain error review
applies to forfeited structural errors”).

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United States, 527 U.S. 1, 8-9 (1999) (quoting Rose v. Clark,
478 U.S. 570, 577-78 (1986)). The Supreme Court has held
particular errors to be structural “only in a very limited class
of cases,” Johnson v. United States, 520 U.S. 461, 468 (1997),
and we have cautioned that “before a court adds a new error to
the list of structural errors . . . , the court must be certain
that the error’s presence would render every such trial unfair,”
Sherman v. Smith, 89 F.3d 1134, 1138 (4th Cir. 1996) (en banc)
(emphasis in original).8
In the instant case, the district court in effect
directed a guilty verdict for the Government. We conclude that
this deprivation of Appellant’s right to have a jury make the
requisite finding of “guilty” or “not guilty” is structural
error. Indeed, the Supreme Court has indicated that such action
by a trial court would amount to structural error:
[H]armless-error analysis presumably would not apply
if a court directed a verdict for the prosecution in a
criminal trial by jury. We have stated that a trial
judge is prohibited from entering a judgment of
8 The Supreme Court has found structural error in limited
circumstances. See, e.g., Sullivan v. Louisiana, 508 U.S. 275
(1993) (erroneous reasonable-doubt instruction); Vasquez v.
Hillery, 474 U.S. 254 (1986) (racial discrimination in selection
of grand jury); Waller v. Georgia, 467 U.S. 39 (1984) (violation
of the right to a public trial); McKaskle v. Wiggins, 465 U.S.
168 (1984) (right to self-representation at trial); Gideon v.
Wainwright, 372 U.S. 335 (1963) (total deprivation of counsel);
Tumey v. Ohio, 273 U.S. 510 (1927) (lack of an impartial trial
judge).

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conviction or directing the jury to come forward with
such a verdict . . . regardless of how overwhelmingly
the evidence may point in that direction. This rule
stems from the Sixth Amendment’s clear command to
afford jury trials in serious criminal cases. Where
that right is altogether denied, the State cannot
contend that the deprivation was harmless because the
evidence established the defendant’s guilt; the error
in such a case is that the wrong entity judged the
defendant guilty.
Rose, 478 U.S. at 578 (internal citations and quotation marks
omitted) (emphases supplied); see also United States v. Kerley,
838 F.2d 932, 937 (7th Cir. 1988) (citing Rose and explaining
that “not only does the harmless-error doctrine not apply when
the error consists in directing a verdict against a criminal
defendant, it also does not apply when the judge directs a
partial verdict against the defendant by telling the jury that
one element of the crime . . . has been proved beyond a
reasonable doubt, so the jury needn’t worry its collective head
over that one” (internal citations omitted)).
Appellant was deprived of the right to a jury verdict
of guilty beyond a reasonable doubt. This right is a “basic
protectio[n] whose precise effects are unmeasurable, but without
which a criminal trial cannot reliably serve its function.”
Sullivan, 508 U.S. at 281. “The deprivation of that right, with
consequences that are necessarily unquantifiable and
indeterminate, unquestionably qualifies as ‘structural error.’”

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Id. at 281-82. Accordingly, the district court’s error affected
Appellant’s substantial rights.
D.
Even though Olano’s three requirements have been
satisfied, we retain discretion as to whether to notice the
error. See Olano, 507 U.S. at 735-36. As we have recognized,
“[t]he mere fact that a forfeited error affects substantial
rights does not alone warrant the exercise of our discretion,
‘for otherwise the discretion afforded by Rule 52(b) would be
illusory.’” United States v. Promise, 255 F.3d 150, 161 (4th
Cir. 2001) (en banc) (quoting Olano, 507 U.S. at 737).
Furthermore, we are “not obligated to notice even structural
errors on plain error review.” Id. Therefore, we will exercise
our remedial discretion on plain error review only when “the
error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Olano, 507 U.S. at 736
(internal quotation marks omitted). “Central to this inquiry is
a determination of whether, based on the record in its entirety,
the proceedings against the accused resulted in a fair and
reliable determination of guilt.” United States v. Cedelle, 89
F.3d 181, 186 (4th Cir. 1996); see also Promise, 255 F.3d at 162
(“It is appropriate to refuse to notice a plain error when
evidence of guilt is overwhelming.”).

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In the instant case, we will exercise our discretion
to notice the plain error because failure to do so would
seriously affect the fairness, integrity, or public reputation
of the judiciary. The Sixth Amendment’s jury trial guarantee,
which includes, “as its most important element, the right to
have the jury, rather than the judge, reach the requisite
finding of ‘guilty,’” is fundamental. Sullivan, 508 U.S. at
277. Here, Appellant did not waive his fundamental right to a
trial by jury, yet no jury has declared Appellant guilty, and he
has been sentenced to 33 months’ incarceration based upon a
judge’s determination of guilt. Regardless of the evidence
presented against Appellant at trial -- which we acknowledge was
substantial -- we cannot condone this practice. See Cedelle, 89
F.3d at 186 n.4 (recognizing that “circumstances may exist where
the proceedings contain an error that seriously affects the
fairness, integrity, or public reputation of the judiciary even
though the record demonstrates that the defendant is guilty”).
To do so would undermine the integrity and public reputation of
the judiciary. Therefore, we exercise our discretion to notice
the error.
IV.
In this case, we refuse to “hypothesize a guilty
verdict that was never in fact rendered.” Sullivan v.
Louisiana, 508 U.S. 275, 279 (1993). To do so would mean “that

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the wrong entity [will have] judged [Appellant] guilty” for the
second time. Rose v. Clark, 478 U.S. 570, 578 (1986).
Accordingly, we vacate Appellant’s conviction and sentence, and
we remand the case to the district court.
VACATED AND REMANDED

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