4th Circuit speaks again on plain error

Today in US v. White, No. 04-4349 (4th Cir. Apr. 26, 2005) (available here), Judge Wilkins (author of the Fourth Circuit's Hughes plain-error opinions here and here) shares more widsom on Booker plain error. 

Interestingly, in White, Judge Wilkins stresses that the defendant did not claim his Sixth Amendment rights were violated (as did Hughes), but only asserted error based on sentencing under a mandatory regime.  For this kind of case, Judge Wilkins in White puts the Fourth Circuit in the plain-error camp of the 1st, 5th, 10th and 11th Circuits by requiring defendants to prove prejudice to secure resentencing (and, in the case at hand, the Fourth Circuit ultimately holds that White failed to carry "his burden of demonstrating that [Booker] error affected his substantial rights").  Judge Wilkins in White has a lot to say about establishing prejudice and structural error on the way to the conclusion that "the error of sentencing White under a mandatory guidelines regime does not warrant a presumption of prejudice, nor is it structural."

Judge Duncan, dissenting on the sentencing analysis, has this to say about the Fourth Circuit's new distinction between Booker pipeline cases with and without assertions of Sixth Amendment error:

I am troubled by the majority's reliance on a distinction between the two manifestations of error discussed in Booker which the Supreme Court ultimately does not accept. Because I believe that the Remedial Opinion in Booker does not recognize that distinction, and the majority opinion fails to clearly articulate another, I respectfully dissent from Part III....

Following Booker, this court has decided that one segment of the total class of defendants authorized to seek resentencing can meet the stringent requirements of showing plain error and are therefore entitled to resentencing.... Although the error initially presented in Booker arose under the Sixth Amendment, the remedy provided was both broader and crafted to address its condition precedent — the mandatory character of the Guidelines.  The distinction the majority creates here in my view fails to adequately reflect or address that underlying error, or the fact that Booker creates one class of defendants going forward.  Because of that, I am unable to accept the majority's rationale for treating White's claim differently from Hughes's.  Because Hughes concluded that one group of defendants sentenced under the now invalid § 3553(b)(1) must be resentenced, and I am unpersuaded by the majority's basis for distinguishing the remaining defendants, I am compelled to conclude that the latter subset, including White, must be remanded for resentencing as well.