DC Circuit joins the plain error fun

Late yesterday, the DC Circuit released US vs. Smith, No. 03-3087 (DC Cir. Mar. 18, 2005) (available here), in which the circuit for the first time weighs in on the Booker plain error issue that has split the circuits (background here).  Smith is a brief per curiam opinion with only limited discussion of the legal standard, but it seems that the DC Circuit is joining the 1st, 5th and 11th Circuits in requiring defendants to make a showing of prejudice from the application of mandatory guidelines.   In Smith, the DC Circuit affirms the defendant's sentence, stating "Smith fails the plain error test because he cannot show that the constitutional error in this case had a prejudicial effect." 

And yet, the defendant in Smith conceded that, because the district judge had upward departed in two prior sentencings, "giving the district judge wider latitude in this case could very well result in a longer sentence."  Given the unique facts in Smith, I am not sure the case establishes exactly how the DC Circuit might approach the plain error issue in a case where there is a real possibility of prejudice to the defendant from the application of mandatory guidelines.