Opinion
No. M2002-02288-CCA-R3-CD.
Assigned on Briefs January 6, 2004.
Filed December 13, 2004.
Appeal from the Criminal Court for Davidson County; No. 99-D-2360; Walter Kurtz, Judge.
Judgment of the Trial Court is Vacated in Part; Affirmed in Part; Sentence Modified.
Jeffrey DeVasher, Assistant Public Defender, Nashville, Tennessee, for the appellant, Ricky Grover Aaron.
Paul G. Summers, Attorney General Reporter; Kim R. Helper, Assistant Attorney General; Victor S. Johnson, District Attorney General; Brian Holmgren and Lisa Naylor, Assistant Districts Attorney General, for the appellee, State of Tennessee.
Jerry L. Smith, J., delivered the opinion of the court, in which Thomas T. Woodall, J., concurred in results and David G. Hayes, J., dissented.
OPINION ON REHEARING
FACTUAL BACKGROUND
The appellant herein was convicted of especially aggravated sexual exploitation of a minor, a Class B felony. A Class B felony is punishable by "not less than eight (8) nor more than twelve (12) years." Tenn. Code Ann. § 40-35-112(a)(2). As a Range I, standard offender the presumptive sentence for a Class B felony is the minimum sentence in the range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). The trial court in this case imposed a sentence of eleven (11) years based on the application of the following statutory enhancement factors: (1) "The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range." Tenn. Code Ann. § 40-35-114(2); (2) "The offense involved a victim and was committed to gratify the defendant's desire for pleasure or excitement." Tenn. Code Ann. § 40-35-114(8); (3) "The defendant abused a position of public or private trust. . . ." Tenn. Code Ann. § 40-35-114(16).
The appellant argues that the trial court violated his right to trial by jury, guaranteed to him by the Due Process Clause of the Fourteenth Amendment, when it enhanced his sentence, at least in part, by finding facts not submitted to the jury and proven beyond a reasonable doubt. See Blakely, 542 U.S. at ___, 124 S. Ct. at 2537. Specifically, the appellant argues that because factors (8) and (16) were "neither admitted by the defendant nor related to a prior conviction" as required by Blakely, this Court must reduce the appellant's sentence "corresponding to the weight this Court gave those factors in affirming the trial court's sentence." The State counters that "any sentencing challenge available to the defendant under Blakely is now waived because the defendant did not properly object at sentencing or raise the issue on direct appeal or in his appellant briefs." Further, the State argues that any error by the trial court in applying enhancement factors is harmless beyond a reasonable doubt.
Prior to the release of Blakely, in order to determine a defendant's sentence, a trial court started at the presumptive sentence, enhanced the sentence within the range for existing enhancement factors, and then reduced the sentence within the range for existing mitigating factors in accordance with Tennessee Code Annotated section 40-35-210(e). No particular weight for each factor is prescribed by the statute; the weight given to each factor is left to the discretion of the trial court as long as it comports with the sentencing principles and purposes of our code and as long as its findings are supported by the record. See State v. Santiago, 914 S.W.2d 116, 125 (Tenn.Crim.App. 1995). This Court has recently recognized thatBlakely "calls into question the continuing validity of our current sentencing scheme." State v. Julius E. Smith, No. E2003-01059-CCA-R3-CD, 2004 WL 1606998, at *4 (Tenn.Crim.App. at Knoxville, July 19, 2004); see also State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD, 2004 WL 1607002, at *9 (Tenn.Crim.App. at Knoxville, July 19, 2004).
In Blakely, the Supreme Court determined that the "statutory maximum" sentence for Apprendi purposes is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at ___, 124 S. Ct. at 2537. In other words:
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. In Ring v. Arizona, 536 U.S. 584, 587 (2002), the Court appliedApprendi to hold that because Arizona conditioned eligibility for the death penalty upon the presence of an aggravating fact that was not an element of first degree murder, the Sixth Amendment guaranteed the defendant a right to a jury determination of that fact.
[T]he relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts "which the law makes essential to the punishment," and the judge exceeds his proper authority.
Id. Blakely involved the sentencing scheme of the State of Washington where the criminal code establishes maximum sentences for felonies according to the class of felony. Washington also has presumptive sentencing ranges based on the seriousness level of the offense and the offender's criminal history. In Washington, a judge is permitted to impose a sentence above the presumptive range when there exists "substantial and compelling reasons justifying an exceptional sentence." Blakely, 542 U.S. at ___, 124 S. Ct. at 2535. A judge may impose an exceptional sentence utilizing one of these "reasons" illustrated in the Sentencing Reform Act only if it is not already taken into account in the calculation of the presumptive range.
Blakely pled guilty to second-degree kidnapping with a firearm. As a class B felony, it was punishable by a sentence of up to 10 years. The Sentencing Reform Act of Washington, however, specified a presumptive range of 49 to 53 months. The sentencing judge imposed an exceptional sentence of 90 months on the ground that the defendant had acted with "deliberate cruelty," a statutorily enumerated ground for upward departure. The Supreme Court ultimately determined that Washington's sentencing procedure violated the defendant's Sixth Amendment right to a trial by jury. Id. 542 U.S. at ___, 124 S. Ct. at 2538.
The State contends that the appellant has waived any Blakely issue because he failed to raise it in the trial court. The United States Supreme Court has stated that "when a decision of this court results in a `new rule,' that rule applies to all criminal cases still pending on direct review." Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519, 2522 (2004). The State argues that Blakely does not establish a new rule but merely clarifies the rule announced in Apprendi v. New Jersey, 530 U.S. 366 (2000). In support of its argument, the State notes that the Supreme Court stated in Blakely that "this case requires us to apply the rule we expressed in Apprendi." Blakely, 542 U.S. at ___, 124 S. Ct. at 2536.
A case "announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal government." Van Tran v. State, 66 S.W.3d 790, 810-11 (Tenn. 2001) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)). In other words, "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S. at 301.
The defendant in Apprendi was convicted of multiple offenses, including second degree possession of a firearm for an unlawful purpose. 530 U.S. 466 (2000). New Jersey state law prescribed a sentence of five (5) to ten (10) years for a second degree offense, but a hate crime statute in effect at the time provided that a judge could enhance the defendant's sentence above the maximum in the range if the crime was racially motivated. Pursuant to the statute, the trial court in Apprendi sentenced the defendant to twelve (12) years, two (2) years above the range. The United States Supreme Court reversed, determining that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490.
The argument advanced by the State herein is that the rule inBlakely merely extends the rule previously announced inApprendi. However, in Graham v. State, 90 S.W.3d 687, 692 (Tenn. 2002), our supreme court held that the noncapital sentencing procedure in this state complied with Apprendi, saying,
In Apprendi, the United States Supreme Court reviewed a New Jersey provision that allowed a judge to impose a sentence exceeding the statutory maximum for an offense if the judge finds, by a preponderance of the evidence, that the offense constituted a hate crime. The [Tennessee] Supreme Court struck the provision down, holding that due process requires that "any fact, other than a previous conviction, used to enhance a sentence above the statutory maximum must be: (1) charged in the indictment, (2) submitted to the jury, and (3) proven beyond a reasonable doubt." State v. Dellinger, 79 S.W.3d 458, 466 (Tenn. 2002) (quoting Apprendi, 530 U.S. at 476, 120 S. Ct. 2348). However, the Court emphasized that the judge still retains his discretion to consider all enhancing and mitigating factors "within the range prescribed by the statute." Apprendi, 530 U.S. at 481, 120 S. Ct. 2348 (emphasis added).
The appellant herein received a sentence of eleven (11) years, a sentence within the statutory maximum for especially aggravated sexual exploitation of a minor as a Range I standard offender. Accordingly, the trial court was well within its discretion and statutory authority to consider enhancing factors for the purpose of sentencing without the assistance of the jury. Thus,Apprendi provides no relief to the appellant.
This Court has acknowledged that Blakely "extended Apprendi's holding that, under the Sixth Amendment, a jury must find all facts used to increase a defendant's sentence beyond the statutory maximum." See State v. Charles Benson, No. M2003-02127-CCA-R3-CD, 2004 WL 2266801, at *8 (Tenn.Crim.App. at Nashville, Oct. 8, 2004). In so doing, this Court went on to state that:
[N]othing in Apprendi suggested that the phrase" statutory maximum" equated to anything other than the maximum in the range. To the contrary, the United States Supreme Court stated the issue in Apprendi as "whether the 12-year sentence imposed . . . was permissible, given that it was above the 10-year maximum for the offense charged in that count." 530 U.S. at 474, 120 S. Ct. at 2354. We also note that the Supreme Court has considered the retroactive effect of the holding in Ring v. Arizona 536 U.S. 584, 592-93, 122 S. Ct. 2428, 2435 n. 1, 153 L. Ed. 2d 556 (2002), as a new rule for capital cases even though it was based on Apprendi. See Schriro, ___ U.S. at ___, 124 S. Ct. at 2525-27. . . . We conclude that Blakely alters Tennessee courts' interpretation of the phrase "statutory maximum" and establishes a new rule in this state. . . .
Id. at *9. We concluded that the denial of the right to a jury trial could not be harmless error as argued by the State even if Blakely did not establish a new rule, because absent a written waiver of the right to a jury trial, "it must appear from the record that the defendant personally gave express consent [to waive a jury trial] in open court." Id. at *9 (quoting State v. Ellis, 953 S.W.2d 216, 221 (Tenn.Crim.App. 1997)). The same analysis applies herein. The record in this case contains neither a written waiver of the right to a jury trial nor an express waiver from the appellant.
The trial court herein applied enhancement factor (2) based upon the fact that the appellant had two federal convictions for possession of child pornography and was serving a federal sentence at the time of sentencing and demonstrated prior "criminal behavior" that was "over and above that which was necessary to support his convictions in Federal court." At the sentencing hearing, defense counsel agreed that the record contained proof that the appellant "downloaded other sexually explicit material involving child pornography over and above that used for his pleas in federal court." Irrespective of the fact that the trial court considered prior "criminal behavior,"Blakely makes clear that a trial court may enhance a sentence based upon prior convictions. Blakely, 542 U.S. at ___, 124 S. Ct. at 2536. We determine that the trial court's application of factor (2) for the appellant's prior convictions was proper. However, the trial court also applied enhancement factors (8) and (16). We believe that the trial court's application of these factors violates Blakely. See State v. Lawrence Warren Pierce, No. M2003-01924-CCA-R3-CD, 2004 WL 2533794, at *12 (Tenn.Crim.App. at Nashville, Nov. 9, 2004) (determining that trial court's application of factor (8) violated Blakely where there was "no proof, as required by Blakely, for its application"); State v. Bobby Northcutt, No. M2003-02805-CCA-R3-CD, 2004 WL 2266798, at *7-*8 (Tenn.Crim.App. at Nashville, Oct. 7, 2004) (concluding that trial court's application of factor (8) and factor (16) violated Blakely where the enhancement factors were not submitted to or found by a jury or admitted by the defendant).
Because the trial court erred in sentencing the appellant, we will review his sentence de novo with no presumption of correctness. We have already determined that the record supports the imposition of enhancement factor (2). The record reflects that the appellant had two prior federal convictions for possession of child pornography and was serving a federal sentence for those crimes at the time of the sentencing hearing herein. In light of the fact that these convictions arose from the same basic set of circumstances as the conviction for especially aggravated sexual exploitation of a minor, this enhancement factor is entitled to little weight. The remaining enhancement factors are prohibited by Blakely from consideration by the trial judge. Thus, we modify the appellant's sentence from eleven (11) years to nine (9) years.
Conclusion
Accordingly, the portion of the previous opinion of this Court affirming the appellant's sentence is vacated. The appellant's sentence for the conviction of especially aggravated sexual exploitation of a minor is modified to nine (9) years. The remainder of this Court's opinion affirming the appellant's convictions is affirmed.
I concur with Judge Smith's lead opinion; however, I am writing separately for two reasons. First, I have reconsidered, and upon further reflection, retreat from my earlier position that sentences found to be in violation of Blakely should be remanded for a new sentencing hearing in the trial court. Until such time as there is clear authority for our courts to deal with Blakely issues, whether by case law or by statute, judicial economy and sentencing considerations, including uniformity of application of sentencing factors, dictates that most sentences found to be in violation of Blakely should be modified, if at all, by the appellate courts. Clearly, the appellate courts have been given the authority to do so by the legislature. Tenn. Code Ann. § 40-35-401(c).
Second, I want to express my concern and reservations of the waiver assertions argued by the State and adopted by my esteemed colleague, Judge Hayes. Pre- Blakely, the status of the law in Tennessee as established by our supreme court's opinion in Graham v. State, 90 S.W.3d, 687 (Tenn. 2002), is clearly set forth in Judge Smith's opinion.
In the case sub judice (and in virtually every other case on direct appeal dealing with the " Blakely issue") the State asserts that "this issue is now waived for consideration in this case since the defendant could have previously raised the issue under Apprendi, just as Mr. Blakely did, in the trial court and on appeal to this Court in his appellate briefs." Assuming that Mr. Aaron in this case had argued in the trial court, under Apprendi, that no enhancement factor other than prior convictions could be applied absent a jury finding, the trial court, and this Court (prior to the U.S. Supreme Court's opinion in Blakely) would have been obligated to reject that issue under Graham. In Holder v. Tennessee Judicial Selection, 937 S.W.2d 877 (Tenn. 1996), our supreme court stated:
We observe, however, that trial courts must follow the directives of superior courts, particularly when the superior court has given definite expression to its views in a case after careful consideration. [citations omitted]. Accordingly, inferior courts are not free to disregard, on the basis that the statement is obiter dictum, the pronouncement of a superior court when it speaks directly on the matter before it, particularly when the superior court seeks to give guidance to the bench and bar. To do otherwise invites chaos into the system of justice.
Holder, 937 S.W.2d at 881-82. (Emphasis in bold type added).
Furthermore, it is necessary to note that the focal point of Blakely is the constitutional right to jury trial, and not the strength of evidence of enhancement factors, other than that the proof must be established beyond a reasonable doubt. There is no clear statutory authority in Tennessee for a jury to determine the applicability of any enhancement factor. Therefore, if Mr. Aaron had prevailed in raising the Apprendi issue in the trial court and/or on appeal, surely the remedy would not have been to still have the trial court determine the existence of an enhancement factor, subject to the hypothetical determination of whether a non-existent jury would have also found the same enhancement factor beyond a reasonable doubt. The majority opinion in Blakely closed with the following statement:
The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to "the unanimous suffrage of twelve of his equals and neighbors," 4 Blackstone, Commentaries, at 343, rather than a lone employee of the State.
Blakely, 124 S.Ct. at 2543.
The conclusion that Blakely errors in Tennessee are rarely, if ever, harmless error beyond a reasonable doubt, is supported by case law.
In Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L. Ed. 2d 182 (1993), the issue was whether a "constitutionally deficient reasonable-doubt instruction may be harmless error." The State conceded that the "reasonable doubt" instruction given by the trial court in this first degree murder case was essentially identical to the same instruction held unconstitutional in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L. Ed. 2d. 339 (1990) (per curiam). The Supreme Court of Louisiana held that the erroneous instruction in Sullivan was harmless beyond a reasonable doubt, and upheld the conviction. The United States Supreme Court thereafter granted certiorari. The Supreme Court held that the constitutionally deficient instruction could not be harmless error. The following quote from Sullivan is particularly pertinent to the situation in the case sub judice, where no jury in Tennessee has ever made (and under present statutory procedure arguably could never make) the factual determination that an enhancement factor(s) exists:
Consistent with the jury-trial guarantee, the question [ Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L. Ed. 2d 705 (1967)] instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. See Chapman, supra, 386 U.S., at 24, 87 S.Ct., at 828 (analyzing effect of error on "verdict obtained"). Harmless-error review looks, we have said, to the basis on which "the jury actually rested its verdict." Yates v. Evatt, 500 U.S. 391, 404, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991) (emphasis added). The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee. See Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 3105, 92 L.Ed.2d 460 (1986); id., at 593, 106 S.Ct., at 3114 (BLACKMUN, J., dissenting); Pope v. Illinois, 481 U.S. 497, 509-510, 107 S.Ct. 1918, 1926, 95 L.Ed.2d 439 (1987) (STEVENS, J., dissenting).
Once the proper role of an appellate court engaged in the Chapman inquiry is understood, the illogic of harmless-error review in the present case becomes evident. Since, for the reasons described above, there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of Chapman review is simply absent. There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt — not that the jury's actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough. See Yates, supra, 500 U.S., at 413-414, 111 S.Ct., at 1898 (SCALIA, J., concurring in part and concurring in judgment). The Sixth Amendment requires more than appellate speculation about a hypothetical jury's action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty. See Bollenback v. United States, 326 U.S. 607, 614, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946).
Sullivan v. Louisiana, 508 U.S. at 279-80, 113 S.Ct. at 2081-82. (Emphasis in bold type added).
In summary, we are obligated to follow precedent clearly set forth by the Tennessee Supreme Court, Holder, except where the holding of the Tennessee Supreme Court is in direct contravention of a holding by the United States Supreme Court concerning a right under the United States Constitution. See Terry v. State, 46 S.W.3d 147, 160 (Tenn. 2001); State v. Carruthers, 35 S.W.3d 516, 561 n. 45 (Tenn. 2000) (the Tennessee Supreme Court is not bound by any federal court decisions other than those of the United States Supreme Court.)
The appellant in the case sub judice raised the Apprendi issue in a very timely manner after the Blakely decision was filed. The issue, therefore, should not be considered waived. To conclude that, if error, it was harmless error beyond a reasonable doubt, requires accepting that a hypothetical jury, which would have no clear statutory authority to determine anything more than guilt or innocence, would have found the enhancement factors beyond a reasonable doubt. In other words, the State argues that even if Defendant had not "waived" the issue and had been clairvoyant enough to see how the Blakely decision would be decided before it was filed, he would be denied any remedy because the State of Tennessee had not provided the remedy: a procedure for jury determination of the existence of enhancement factors.
Respectfully, in light of Sullivan v. Louisiana, I am unable to accept this logic.
The majority concludes that modification of the appellant's eleven-year sentence is required in light of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). I must respectfully dissent.
Any sentencing challenge available to the appellant under Blakely is now waived because the appellant did not object at trial to what he now contends is a constitutionally invalid sentencing scheme. Tenn. R. App. P. 36(a). In Blakely, the Supreme Court clarified and extended the rule previously expressed in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), with regard to the term "statutory maximum." Clearly, the appellant could have raised this issue under Apprendi at the trial level as did the defendant Blakely; however, this was not done. The majority opines that the supreme court's holding in Graham v. State, 90 S.W.3d 687, 692 (Tenn. 2002), no perm. to app. filed, excuses the appellant's failure to raise this issue at the trial level. I disagree. Trial counsel may not forgo an objection to a trial defect simply because he thought the objection would be futile. Engle v. Isaac, 456 U.S. 107, 130 n. 35, 102 S. Ct. 1558, 1573 n. 35 (1982) (citations omitted). Futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time. Id. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid. Id. at 130, 102 S. Ct. at 1573. Certainly the practice of presenting previously rejected claims is clearly implanted in capital case litigation in this state. I see no valid reason to carve out an Apprendi/Blakely exception to this established practice. In United States v. Cotton, 535 U.S. 625, 631-34, 122 S. Ct. 1781, 1785-87 (2002), the Supreme Court held, after its decision in Apprendi, that the defendant's claim of right to a trial and finding by a jury on a fact used to enhance the defendant's sentence was forfeited because it was not raised at trial. Moreover, the Supreme Court has held
(1) the Apprendi rule is not a substantive rule that alters the range of conduct or the class of persons that the law punishes; rather, it is a procedural rule that affects only the manner of determining the defendant's culpability, and (2) the Apprendi rule is not a "watershed rule of criminal procedure" that implicates the fundamental fairness and accuracy of criminal proceedings.
People v. George Carl Sample, 122 Cal. App. 4th 206, 220, 18 Cal. Rptr. 3d 611, 620 (Cal.Ct.App. 2004) (quoting Schriro v. Summerlin, ___ U.S. ___, 124 S. Ct. 2519, 2520-21 (2004)). Review and modification of the appellant's sentence for the first time on appeal not only has the effect of removing the trial court as the primary sentencing court, it also denies the State the opportunity to be heard in the sentencing decision. Accordingly, I find the Blakely issue waived.
Because the issue is waived, it is reviewable only under the discretionary authority of plain error. Tenn. R. Crim. P. 52(b). Rule 52(b) provides, "[a]n error which has affected the substantial rights of an accused may be noticed at any time, even though not raised in the motion for a new trial or assigned as error on appeal, in the discretion of the appellate court where necessary to do substantial justice." This court is permitted to correct an error not raised before the trial court only when (1) the lower record is clear, (2) a clear rule of law has been breached, (3) a substantial right has been affected, (4) the waiver was non-tactical, and (5) consideration of the error is necessary to do substantial justice. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (adopting the test articulated by this court in State v. Adkisson, 899 S.W.2d 626, 642 (Tenn.Crim.App. 1994)). The asserted "`plain error' must [have been] of such a great magnitude that it probably changed the outcome of the trial." Adkisson, 899 S.W.2d at 642.
Applying Blakely, the majority concludes that two statutory sentencing enhancers are inapplicable: (1) "[t]he offense involved a victim and was committed to gratify the defendant's desire for pleasure or excitement," and (2) "[t]he defendant abused a position of public or private trust . . ." See Tenn. Code Ann. § 40-35-114(8), (16) (2003). First, assuming that the error is plain, my review and that of my colleagues in the majority opinion concluded that the sentencing proof supported application of factors (8) and (16). Again, I find the proof at trial supported these factors and would have permitted a rational trier of fact to have found that the appellant abused a position of trust and that the offense was committed to gratify the appellant's desire for pleasure or excitement. In view of these circumstances, the appellant has failed to establish that consideration of the error is "necessary to do substantial justice" or that the alleged error changed the outcome of the sentencing decision. See United States v. Stephen Savarese, 2004 U.S. App. LEXIS 19824, No. 04-1009 (1st D. Sept. 22, 2004).
The reasoning of the United States Supreme Court in Cotton is similar to, but not identical with, harmless error analysis. The court previously had explained that invariably to refuse to consider errors when no objection was made would be out of harmony with rules of fundamental justice. Accordingly, if the defendant points to plain error that affected substantial rights, then an appellate court has discretion to correct the error. Normally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy the "affecting substantial rights" prong of Rule 52(b). But such a showing is not itself sufficient. An appellate court should not correct the error unless it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings."
It was this latter test the Supreme Court applied in Cotton, concluding that when the defendants did not object in the district court to the sentencing proceeding and did not attempt to dispute or controvert the evidence in support of a sentencing factor that justified the sentence imposed, and the evidence of the factor was overwhelming, then forfeiture applies and reversal on appeal is wholly unwarranted.
Sample, 122 Cal. App. at 219, 18 Cal. Rptr. at 619-20 (internal citations omitted).
I conclude that application of enhancement factors (2), (8), and (16) is sufficient to permit a sentence enhancement of three years beyond the presumptive minimum. For these reasons, I would affirm the appellant's sentence of eleven years.