Full opinion text
TACHA, Chief Circuit Judge. Defendant-Appellant Sergio Gonzalez-Huerta pleaded guilty to illegal reentry by a deported alien in violation of 8 U.S.C. § 1326(a)-(b)(2). The District Court sentenced Mr. Gonzalez-Huerta to 57 months’ incarceration. In determining Mr. Gonzalez-Huerta’s sentence, the court did not rely upon judge-found facts, but it did apply mandatorily the U.S. Sentencing Guidelines (2003) (“Guidelines”). Mr. Gonzalez argues for the first time on appeal that this mandatory application of the Guidelines constitutes reversible error under United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because Mr. Gonzalez-Huerta did not raise this argument in the District Court, this appeal is reviewed only for plain error. See Fed.R.Crim.P. 52(b). We take jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), hold that the fourth prong of plain-error review is not satisfied, and AFFIRM. I. BACKGROUND In 1994, Mr. Gonzalez-Huerta was convicted of committing burglary in California. After serving a prison term, he was deported to Mexico in 2000. In May 2003, Mr. Gonzalez-Huerta was arrested in New Mexico for possession of a controlled substance. While Mr. Gonzalez-Huerta was being held in a New Mexico jail, United States Border Patrol Agents discovered that he had reentered the country illegally. The Government indicted Mr. Gonzalez-Huerta for unlawfully reentering the United States after deportation following an aggravated felony. See 8 U.S.C. § 1326(a)-(b)(2). By statute, this offense is punishable by a maximum sentence of 20 years, with no mandatory minimum sentence. 8 U.S.C. § 1326(b)(2). Mr. Gonzalez-Huerta pleaded guilty without entering into a plea agreement. With the exception of its findings regarding Mr. GonzalezAHuerta’s prior convictions, the District Court calculated Mr. Gonzalez-Huerta’s sentencing range under the Guidelines without making findings of fact beyond those admitted by Mr. Gonzalez-Huerta. In so doing, the District Court concluded that Mr. Gonzalez-Huerta had an offense level 21 and a criminal history category IV. The court then mandatorily applied the Guidelines, which set Mr. Gonzalez-Huerta’s sentence range at 57-71 months’ imprisonment, and imposed a 57-month sentence. While Mr. Gonzalez-Huerta did not object to the mandatory application of the Guidelines at sentencing, he did timely appeal his sentence. While this case was pending on appeal, the Supreme Court issued its opinion in Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004), which held that in a state prosecution the Sixth Amendment requires that the maximum permissible sentence in a given case must be determined solely by reference to “facts reflected in the jury verdict or admitted by the defendant.” That is to say, the Court held that mandatory sentencing guidelines, which require the sentencing judge to make findings of fact, may not be used to increase a defendant’s sentence in a state prosecution even though this enhanced sentence falls within the statutory sentencing range. In January of this year, the Court held that Blakely applies to federal sentences as well. Booker, 125 S.Ct. at 749-50. On appeal, Mr. Gonzalez-Huerta argues for the first time that Booker is grounds for remanding his case for resentencing. We set this case for en banc review sua sponte to resolve this matter of great importance. See 28 U.S.C. § 46(c). We requested supplemental briefing from the parties on an expedited basis and received an amicus curiae brief from the National Association of Criminal Defense Lawyers. The question being fully argued, we turn to the single substantial issue in this appeal: On plain-error review, does the District Court’s mandatory application of the Guidelines constitute reversible error when the District Court relied solely upon Mr. Gonzalez-Huerta’s prior convictions and admitted facts in determining his maximum sentence? II. DISCUSSION A. In Booker, the Court “reaffirm[ed its] holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 125 S.Ct. at 756. As a result, the Court held that mandatory application of the Guidelines violates the Sixth Amendment when judge-found facts, other than those of prior convictions, are employed to enhance a sentence. The Court constructed a unique remedy to this constitutional infirmity. It severed two provisions of the Sentencing Reform Act of 1984, codified at 18 U.S.C. § 3551 et seq. Namely, it excised 18 U.S.C. § 3553(b)(1), which made the imposition of a Guidelines sentence mandatory in the vast majority of cases, and those portions of 18 U.S.C. § 3742(e) that established standards of review on appeal. Booker, 125 S.Ct. at 764. Henceforth, courts are still required to consider the Guidelines in determining sentences, but they are not required to impose a sentence within the Guidelines range. Id. As a result, there are two distinct types of error that a court sentencing prior to Booker could make. First, a court could err by relying upon judge-found facts, other than those of prior convictions, to enhance a defendant’s sentence mandatorily. As Booker makes clear, the Sixth Amendment prohibits this practice. 125 S.Ct. at 756. As a matter of convenience, we will refer to such an error as a “constitutional Booker error.” Second, a sentencing court could err by applying the Guidelines in a mandatory fashion, as opposed to a discretionary fashion, even though the resulting sentence was calculated solely upon facts that were admitted by the defendant, found by the jury, or based upon the fact of a prior conviction. Id. at 769. While this type of sentence does not violate the Sixth Amendment, id., such a sentence is nonetheless impermissible because the Court severed the portion of the Sentencing Reform Act that required the mandatory application of the Guidelines, id. at 764. We will refer to this second type of error as a “non-constitutional Booker error.” B. This case presents us with a non-constitutional Booker error. The record establishes that, except for the fact of Mr. Gonzalez-Huerta’s prior convictions, the District Court relied solely upon facts admitted by Mr. Gonzalez-Huerta in calculating his maximum sentence. It is also undisputed that Mr. Gonzalez-Huerta did not raise this non-constitutional Booker error below. Thus, we review Mr. Gonzalez-Huerta’s claim for plain error. See Fed.R.Crim.P. 52(b); Booker, 125 S.Ct. at 769 (stating in dicta that not every appeal should be remanded for resentencing “because we expect reviewing courts to ... determin[e] ... whether the issue was raised below and whether it fails the ‘plain error’ test.”); Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (holding that defendant’s argument based upon United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), which held the failure to instruct the jury on the issue of materiality is a Sixth Amendment violation, was raised for the first time on appeal and thus subject to plain-error review). We turn, then, to our application of plain-error review. “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Burbage, 365 F.3d 1174, 1180 (10th Cir.) (quotation omitted), cert. denied, — U.S. -, 125 S.Ct. 510, 160 L.Ed.2d 381 (2004). Clearly, the first two prongs of the plain-error test are met here. First, the Booker Court excised 18 U.S.C. § 3553(b)(1), thereby rendering the Guidelines discretionary. Booker, 125 S.Ct. at 764. The District Court’s mandatory application of the Guidelines, then, was erroneous. As to the second prong, an error is “plain” if it is clear or obvious at the time of the appeal, Johnson, 520 U.S. at 468, 117 S.Ct. 1544, and Booker renders the error here both clear and obvious on appeal. Thus, the primary issue in this case is whether Mr. Gonzalez-Huerta can satisfy both the third and fourth prongs of plain-error review. C. Satisfying the third prong of plain-error review- — that the error affects substantial rights — “usually means that the error must have affected the outcome of the district court proceedings.” United States v. Cotton, 535 U.S. 625, 632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (quotations omitted); see also United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The appellant bears the burden to make this showing. United States v. Vonn, 535 U.S. 55, 62-63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); Olano, 507 U.S. at 734-35, 113 S.Ct. 1770. This is also the case when the error occurs during sentencing. See Jones v. United States, 527 U.S. 373, 394-95, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). As this Court held in United States v. Brown, 316 F.3d 1151, 1158 (10th Cir.2003), a “defendant appealing her sentence who failed to timely object to the alleged error bears the burden of proving prejudice under plain . error analysis.” Indeed, even when the underlying error is constitutional — as is not the case here — appellant retains the burden to demonstrate that substantial rights are affected. Cotton, 535 U.S. at 632, 122 S.Ct. 1781; United States v. Chavez, 229 F.3d 946, 951 (10th Cir.2000). To meet this burden, the appellant must show “a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2339, 159 L.Ed.2d 157 (2004) (alterations and quotation omitted). Mr. Gonzalez-Huerta therefore bears the burden to convince this Court, based on the record on appeal, that the error affected his substantial rights. See id. at 2340; Vonn, 535 U.S. at 59, 122 S.Ct. 1043; United States v. Rodriguez, 398 F.3d 1291, 1305-06 (11th Cir.2005), petition for cert. filed, (U.S. Feb. 23, 2005) (No. 04-1148). Mr. Gonzalez-Huerta and Amicus National Association of.. Criminal Defense Lawyers counter that Mr. Gonzalez-Huerta does not bear the burden to show that his substantial rights were affected. They contend that this conclusion follows because the District Court’s mandatory application of the Guidelines constitutes structural error. We disagree. In Olano, the Court held that to satisfy the third prong of plain error, “in most cases ... the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” 507 U.S. at 734, 113 S.Ct. 1770. The Court, however, carved out an exception to this general rule. It stated that “there may be a .special category of forfeited errors [i.e., structural errors] that can be corrected regardless of their effect on the outcome.” Id. at 735, 113 S.Ct. 1770. A “structural” error, as explained in Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Structural 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.” Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (internal citation omitted). The Court has found structural errors only in a very limited class of cases. We have also noted that “the universe of [structural] errors is extremely small.” United States v. Garcia, 78 F.3d 1457, 1464 n. 10 (10th Cir.1996). Indeed, the Supreme Court has held that “[i]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other constitutional errors that may have occurred are [not structural errors.]” Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Given these considerations, we conclude that non-constitutional Booker error does not constitute structural error. First, as Neder implies, generally speaking structural errors must, at a minimum, be constitutional errors. See id. Second, because Mr. Gonzalez-Huerta had counsel and an impartial judge there is a strong presumption against finding structural error. Id. Third, a defining feature of structural error is that the resulting unfairness or prejudice is “necessarily unquantifiable and indeterminate,” Sullivan v. Louisiana, 508 U.S. 275, 282, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), such that “any inquiry into its effect on the .outcome of the case would be purely speculative,” Satterwhite v. Texas, 486 U.S. 249, 256, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). That is to say, if, as a categorical matter, a court is capable of finding that the error caused prejudice upon reviewing the record, then that class of errors is not structural. Such is the case with non-constitutional Booker error. If, for example, the district court indicates that but for the mandatory nature of the Guidelines it would have issued a lower sentence, the reviewing court could determine from the record that the error was prejudicial. See United States v. Shelton, 400 F.3d 1325, 1328, 1332-33 (11th Cir.2005) (holding that the defendant had satisfied the third prong where the district court stated that the Guidelines sentence was “very, very severe” and indicated by other statements that the mandatory Guidelines sentence was “unfortunate.”). Hence, we hold that non-constitutional Booker error is not structural error. Accord United States v. Antonakopoulos, 399 F.3d 68, 80 n. 11 (1st Cir.2005). Alternatively, Mr. Gonzalez-Huerta argues that he does not bear the burden under the third prong of plain error because the Olano Court noted that some unraised errors should be “presumed prejudicial if the defendant cannot make a specific showing of prejudice.” 507 U.S. at 734, 113 S.Ct. 1770. He urges that when a case is pending on appeal and an intervening decision overturns law that was well-settled while the case was in the district court, the appellee should bear the burden to establish that substantial rights were not affected. See United States v. Barnett, 398 F.3d 516, 526-29 (6th Cir.2005); United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994), abrogated on other grounds by Salinas v. United States, 522 U.S. 52, 65-66, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997); United States v. Washington, 12 F.3d 1128, 1139 (D.C.Cir.1994). Following this same line of reasoning, the Sixth Circuit in Barnett held that a presumption of prejudice is appropriate for non-constitutional Booker error because “the inherent nature of the error [makes] it exceptionally difficult for the defendant to demonstrate that the outcome of the lower court would have been different had the error not occurred.” 398 F.3d at 526-27. Mr. Gonzalez-Huerta argues that this Court should adopt the approach taken in Barnett. We do not find Barnett persuasive for several reasons. First, in the twelve years since its decision in Olano, the Court has never again mentioned this category of presumed prejudice — let alone applied it to an analogous factual scenario. In Johnson, for example, the Court faced the question whether a defendant bore the burden to satisfy the third prong of plain error when he raised, for the first time on appeal, an argument based on the intervening Supreme Court decision of United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), which overturned law that was well-settled at the time of the district court proceedings. 520 U.S. at 469-70, 117 S.Ct. 1544. The Court, however, failed to make any mention of presumed prejudice in reaching its decision. We similarly question the applicability of presumed prejudice to Mr. Gonzalez-Huerta’s case. Second, establishing that non-constitutional Booker error affects substantial rights is not an impossible task. The Eleventh Circuit’s recent Shelton opinion illustrates one means of satisfying the third prong. If the sentencing judge expressed unhappiness on the record with the mandatory nature of the Guidelines as it relates to the sentence in that particular case, then the defendant can satisfy the third prong of plain error. Shelton, 400 F.3d 1325, 1328. Moreover, “[e]ven in cases where the judge was silent, there may be cases in which the appellate panel is convinced by the defendant based on the facts of the case that the sentence would, with reasonable probability, have been different such that” the third prong may be satisfied. Antonakopoulos, 399 F.3d at 81 (outlining scenarios where the third prong of plain error would likely be met); see also United States v. MacKinnon, 401 F.3d 8, 11 (1st Cir.2005) (judge’s comments plus numerous grounds for departure that could not be considered under mandatory guidelines required remand). We are confident, then, that leaving the burden with the appellant does not render satisfaction of the third prong impossible. Third, an appellant, even prior to Booker, had every reason to present mitigating sentencing factors to the district court. See Barnett, 398 F.3d at 537-38 (Boggs, C.J., dissenting). The Guidelines present a sentencing court with a range in which to sentence. Thus, both the prosecutor and defense counsel, even under the mandatory Guidelines scheme, had the opportunity to present mitigating circumstances to the district court that might place a criminal defendant at the high or low end of the range. As such, “[a]ny arguments that might be raised post -Booker about culpability, future dangerousness, offsetting good works, family obligations, or any other mitigating circumstance were also fair game pre-Booker.” Id. at 538. As Chief Judge Boggs aptly concluded, “the Guidelines never placed any limits on the ability of the district court to consider these factors, so there is no reason to remand so the district court may consider additional circumstances.” Id. Hence, any failure to include such evidence in the record prior to Booker fairly rests with the appellant. Finally, placing the burden on the appellant is one of the essential characteristics distinguishing plain error from harmless error. See Vonn, 535 U.S. at 62-63, 122 S.Ct. 1043; Olano, 507 U.S. at 734-35, 113 S.Ct. 1770. Shifting the burden to the appellee would seriously blur this distinction and would be inconsistent with our precedent. Cf. United States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir.2005) (on harmless-error review, remanding a non-constitutional Booker error case in the face of a silent record). Therefore, we do not adopt the Barnett burden-shifting approach and hold that Mr. Gonzalez-Huerta bears the burden to establish by a reasonable probability based upon the record on appeal that his substantial rights were affected by the District Court’s mandatory application of the Guidelines. Accord United States v. Mares, 402 F.3d 511, 520-22, 2005 WL 503715 at *8-*9 (5th Cir.2005); Antonakopoulos, 399 F.3d at 79-80; Rodriguez, 398 F.3d at 1299-1301. D. We need not determine whether Mr. Gonzalez-Huerta can satisfy this burden because even if he were to meet the third prong, he must also satisfy the fourth prong to obtain relief. See Cotton, 535 U.S. at 632-33, 122 S.Ct. 1781 (“[W]e need not resolve ... [the third prong of plain-error review], because even assuming respondents’ substantial rights were affected, the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.”); Johnson, 520 U.S. at 469-70, 117 S.Ct. 1544 (same); United States v. Gonzalez Edeza, 359 F.3d 1246, 1251 (10th Cir.2004) (applying Cotton and Johnson). Mr. Gonzalez-Huerta does not satisfy this prong. As a preliminary matter, we note that in the wake of Booker several courts of appeals have collapsed the third and fourth prong analyses. That is to say, if these courts find the third prong satisfied, they conclude that the fourth prong is met as a matter of course. See, e.g., United States v. Crosby, 397 F.3d 103, 118 (2d Cir.2005) (“[A] district judge’s decision that the original sentence would have differed in a nontrivial manner from that imposed will demonstrate that the error in imposing the original sentence was harmful and satisfies plain error analysis.”). We cannot subscribe to this approach. The Court in Olano clearly held that “a plain error affecting substantial rights does not, without more, satisfy the ... standard, for otherwise the discretion afforded by Rule 52(b) would be illusory.” 507 U.S. at 737, 113 S.Ct. 1770. Therefore, we are bound to treat the third and fourth prongs as independent inquiries. Under the fourth prong of plain-error review, a court may exercise its discretion to notice a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Johnson, 520 U.S. at 467, 117 S.Ct. 1544. As such, we will not notice a non-constitutional error, such as the one in the case before us, unless it is both “particularly egregious” and our failure to notice the error would result in a “miscarriage of justice.” United States v. Gilkey, 118 F.3d 702, 704 (10th Cir.1997); see also Olano, 507 U.S. at 736, 113 S.Ct. 1770 (holding that the “discretion conferred by Rule 52(b) should be employed [only] in those circumstances in which a miscarriage of justice would otherwise result”) (internal quotations omitted). This is a demanding standard, see Dominguez Benitez, 124 S.Ct. at 2335, and of course, depends on the facts of the particular case. Mr. Gonzalez-Huerta bears the burden of meeting this demanding standard. Vonn, 535 U.S. at 63, 122 S.Ct. 1043 (“[A] defendant has the further burden to persuade the court that the error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’”). While some find that Olmo provides a foundation for the “presumed prejudice” approach to the third prong of plain-error review as adopted by the Sixth Circuit in Barnett, the Supreme Court has never shifted the burden to the appellee to establish that the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. To the contrary, the Supreme Court has consistently applied the fourth prong of plain-error review rigorously-even when the error is the result of an intervening Supreme Court decision that alters well-settled law. For example, the Johnson Court considered the application of the fourth prong of plain-error review in the wake of its Gaudin decision, which overturned established law regarding the need to present materiality to the jury. 520 U.S. at 469-70, 117 S.Ct. 1544. Despite the major change in criminal law made by Gaudin, the Court declined to carve out an exception to the burden framework as to the fourth prong of plain error. Id. Rather, it concluded that the record on appeal simply provided “no basis” for the notion that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings, and that a miscarriage of justice would not result from its decision to affirm. Id. This Court has similarly applied the fourth prong of plain-error review in cases where an intervening Supreme Court decision alters well-settled law. We considered this issue immediately after the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which, like Booker, drastically changed federal sentencing procedure. Nonetheless, we applied the traditional rigorous approach to the fourth prong of plain-error review to appeals pending when the Court issued that decision. See United States v. Keeling, 235 F.3d 533, 538-40 (10th Cir.2000). We use the same approach today. Mr. Gonzalez-Huerta fails to meet his burden to satisfy the fourth prong of plain-error review. In his brief on appeal, he offers nothing more than the conclusory statement that: “[T]o leave standing this sentence imposed under the mandatory guideline regime, we have no doubt, is to place in jeopardy the fairness, integrity, or public reputation of judicial proceedings.” Aplt. Supp. Brief at 12 (quoting United States v. Hughes, 396 F.3d 374, 381 (4th Cir.2005)). Providing this quotation is a far cry from establishing that a miscarriage of justice would occur if we do not remand. To the contrary, based upon our review of the record, we are convinced that the District Court’s mandatory application of the Guidelines was not “particularly egregious” or a “miscarriage of justice.” Several considerations support our conclusion. The error of which Mr. Gonzalez-Huerta complains is not the substantive error first recognized in Blakely and which Booker sought to eliminate — namely, that the Sixth Amendment is violated when a judge, rather than a jury, finds facts that mandatorily increase a defendant’s sentence. Rather, the error in Mr. Gonzalez-Huerta’s case — that the District Court applied the Guidelines mandatorily — is only error insofar as it runs afoul of the Court’s remedy for the unconstitutional implications of the Guidelines. This disconnect between the constitutional violation and the remedy makes Booker unique. While there is no doubt that the remedy cures the constitutional violations going forward, usually the cure for a constitutional violation directly relates to the constitutional violation. The fortuity of the Court’s choice to excise 18 U.S.C. § 3553(b)(1), instead of a remedy more directly related to the underlying constitutional problem, is key to our determination that the District Court’s erroneous — although not constitutionally erroneous — mandatory application of the Guidelines is not particularly egregious or a miscarriage of justice. Moreover, the purpose of the Guidelines was to promote uniformity in sentencing so as to prevent vastly divergent sentences for offenders with similar criminal histories and offenses. See Koon v. United States, 518 U.S. 81, 92, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). The federal courts have been striving towards this worthy goal since 1987. Indeed, this goal remains the same post-Booker. Booker, 125 S.Ct. at 761 (“This point is critically important. Congress’ basic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased uniformity.”). In doing so, the courts and the United States Sentencing Commission have established national norms for sentencing that are embodied in the Guidelines. See Mistretta v. United States, 488 U.S. 361, 369-70, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Even though district courts now have discretion in sentencing, they must consider the Guidelines (i.e., the national norm) when sentencing. Booker, 125 S.Ct. at 764 (“The Act nonetheless requires judges to consider the Guidelines ‘sentencing range established for ... the applicable category of offense committed by the applicable category of defendant.’ ”). Here, Mr. Gonzalez-Huerta received a sentence that is within this national norm and the record is devoid of any mitigating evidence. Given that his sentence is consistent with this national norm and there is no record evidence to support a lower sentence, we cannot conclude that Mr. Gonzalez-Huerta’s sentence is particularly egregious or a miscarriage of justice. Further, for the last eighteen years, every federal court has given the Guidelines tacit, and in most cases explicit, approval, applying them to tens of thousands of federal sentences. In this regard, we agree with the First Circuit that “one cannot possibly say that all sentences imposed before Booker threatened the fairness, integrity, or public reputation of judicial proceedings, or undermined our confidence in the outcome of the sentence, simply because the Guidelines were mandatory.” Antonakopoulos, 399 F.3d at 80; cf. United States v. Wilson, 244 F.3d 1208, 1220 n. 7 (10th Cir.2001) (applying the fourth prong of the plain-error test and declining to correct an error, in part, because the procedures involved “were universally considered fair at the time of trial”). Indeed, courts have held that sentencing error meets the fourth prong of plain-error review only in those rare cases in which core notions of justice are offended. For example, the courts generally have held the fourth prong met when the sentence exceeds the statutory maximum, United States v. Maxwell, 285 F.3d 336, 342 (4th Cir.2002), when the sentencing court employs an improper burden of proof, United States v. Jordan, 256 F.3d 922, 933 (9th Cir.2001), and when the sentencing court denies the defendant his right to allocution, United States v. Adams, 252 F.3d 276, 288-89 (3rd Cir.2001). Here, we are not faced with a similar scenario where basic notions of justice are jeopardized. Hence, we cannot hold, based upon the culmination of these factors, that the mandatory application of the Guidelines in this case — while error — is a particularly egregious one that would result in a miscarriage of justice or otherwise call the judiciary into disrepute unless we remanded. III. CONCLUSION Because Mr. Gonzalez-Huerta’s challenge to this non-constitutional Booker error was raised for the first time on appeal and he cannot satisfy the fourth prong of plain-error review, we AFFIRM. . Mr. Gonzalez-Huerta raises a second issue solely for the purpose of preserving it for a petition for certiorari. He argues that Blakely calls into question the Court’s ruling in Al-mendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that the fact of a prior conviction may be judicially recognized. First, we note that this argument was not raised below, limiting our review to plain error. In any event, the holding in Booker, envisions Almendarez-Torres as good law. Booker, 125 S.Ct. at 756 ("Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”). We believe that any reconsideration of Almendarez-Torres must be conducted by the Supreme Court. See State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) ("[I]t is [the Supreme] Court's prerogative alone to overrule one of its precedents.”); cf. Shepard v. United States, - U.S. -, 125 S.Ct. 1254, 1263-64, 161 L.Ed.2d 205 (2005) (Thomas, J., concurring) (noting that the Supreme Court has not reconsidered Almenda-rez-Torres since announcing the rule applied in Blakely and Booker). . In a footnote, Mr. Gonzalez-Huerta briefly asserts that the mandatory use of the Guidelines violates the Due Process Clause of the Fifth Amendment, rather than the jury trial guarantee under the Sixth Amendment. In support of this argument, he cites Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980), to demonstrate that the legislature can create statutory liberty interests in sentencing procedures. Mr. Gonzalez-Huerta fails to argue, however, that any provision in the Sentencing Reform Act creates such a statutory liberty interest. Because Mr. Gonzalez-Huerta fails to provide this essential predicate for a due process claim, we find this argument unpersuasive. . Because it fails to discuss this crucial issue of who bears the burden to establish that substantial rights were affected, we find United States v. Ameline, 400 F.3d 646, 654 (9th Cir.2005), vacated and reh'g en banc granted 401 F.3d 1007 (2005), unpersuasive. . Because plain error must be assessed based upon the record on appeal, we find the approach to Booker plain error adopted in United States v. Crosby, 397 F.3d 103 (2d Cir.2005), and United States v. Paladino, 401 F.3d 471 (7th Cir.2005), which provide for limited remands to determine whether the district court would issue a lower sentence, inconsistent with plain error doctrine. See Rodriguez, 398 F.3d at 1304-06 (critiquing the Crosby approach). . See Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (erroneous reasonable-doubt instruction to jury); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (unlawful exclusion of grand jurors of defendant’s race); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (right to a public trial); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (right to self-representation at trial); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (total deprivation of the right to counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (lack of an impartial trial judge). . This is not to say this is the only way the third prong can be satisfied. See United States v. Antonakopoulos, 399 F.3d 68, 81 (1st Cir.2005); United States v. MacKinnon, 401 F.3d 8, 11 (1st Cir.2005). . Worthy of note, although the Second and District of Columbia Circuits have an intervening decision doctrine as precedent, neither court applied that precedent to Booker plain error cases. The Second Circuit has opted for the limited remand approach. Crosby, 397 F.3d at 120. The District of Columbia Circuit, on a motion for panel rehearing, held that the defendant could not satisfy the third prong and that an "intervening change in law [is] no excuse for failure to object.” United States v. Smith, 401 F.3d 497, 498-99 (D.C.Cir.2005) (citing Johnson, 520 U.S. at 464, 117 S.Ct. 1544). . The Fourth Circuit in Hughes, 396 F.3d at 380-81, took a different approach to the fourth prong. It previously held the fourth prong satisfied because "Booker wrought a major change in how federal sentencing is to be conducted.” Id. at 380. Because we do not find that this change in well-established law mandates a lesser fourth-prong burden, we do not find this reasoning persuasive. Moreover, we note that the Fourth Circuit panel granted rehearing and issued a new opinion in Hughes. See United States v. Hughes, 401 F.3d 540 (4th Cir.2005). The Fourth Circuit now relies upon a different fourth-prong rationale. The court now holds the fourth prong met because "Hughes was sentenced to a term of imprisonment nearly four times as long as the maximum sentence authorized by the jury verdict.” Id. at *555. We do not face similar facts here. . Indeed, the District Court specifically asked Mr. Gonzalez-Huerta, "Are all of the statements of fact in your [presentence] report correct?” Mr. Gonzalez-Huerta replied, "Yes.” The court then inquired, "[I]s there any need for an evidentiary hearing on disputed facts?” Defense counsel stated there was not. The court again asked, "Are there any written materials other than the presentence report that I should take into account?” Mr. Gonzalez-Huerta's lawyer replied, "Nothing on behalf of the defendant, Judge.” The court then stated its intention to sentence Mr. Gonzalez-Huerta to 57 to 71 months' incarceration and asked, "Are you in agreement with that?” Defense counsel replied, "Yes, your honor.” Yet again, the court asked defense counsel, "would you like to make a statement on behalf of Mr. Gonzalez at this time?” Defense counsel thanked the Judge for sentencing at the low end of the range and stated that he had informed Mr. Gonzalez-Huerta that he was eligible for good-time credits. . At times we have referred to the imposition of a sentence beyond the statutory maximum as an “illegal sentence.” The use of this terminology, however, has led to some confusion. Thus, we recently clarified that the term "illegal sentence” is reserved for those instances where the term of incarceration exceeds the statutory maximum, while a wrongly imposed sentence that is under the statutory maximum is properly termed an "erroneous sentence.” United States v. Brown, 316 F.3d 1151, 1160 n. 4 (10th Cir.2003). Because Mr. Gonzalez-Huerta's sentence is under the statutory maximum, he did not receive an "illegal sentence” that would trigger per se, reversible, plain error. Cf. United States v. Smith, 156 F.3d 1046, 1057 (10th Cir.1998). . Although "[w]e previously have held ... that application of the wrong Guidelines range constitutes plain error,” United States v. Occhipinti, 998 F.2d 791, 801-02 (10th Cir.1993), we later clarified that application of the wrong guideline only "constitutes a fundamental error affecting substantial rights within the meaning of Rule 52(b), thereby satisfying the third prong of the plain error inquiry,” leaving the appellant with the burden to establish the remaining prongs of plain error review, United States v. Whitney, 229 F.3d 1296, 1308-09 (10th Cir.2000). Thus, even if we held that the District Court applied the wrong guideline range in this case, such a finding would not necessarily satisfy the fourth prong of plain-error review.
TACHA, Chief Circuit Judge, concurring. I fully concur in the majority opinion. I write separately because I would also find that Mr. Gonzalez-Huerta cannot satisfy the third prong of plain-error review. I am authorized to say that Judge Kelly, Judge Murphy, - Judge O’Brien, Judge McConnell, and Judge Tymkovich join this concurring opinion. Having concluded that the burden squarely rests on Mr. Gonzalez-Huerta, I would turn next to whether he satisfies the third-prong. Unlike in United States v. Antonakopoulos, 399 F.3d 68 (1st Cir.2005), or United States v. Shelton, 400 F.3d 1325, 1328, 1332-33 (11th Cir.2005), Mr. Gonzalez-Huerta does not point to anything in the record that shows with a reasonable probability that his substantial rights were affected by the mandatory application of the Guidelines. The most he can offer is speculation that with its new-found discretion the District Court might impose a lower sentence. In my view, this is an insufficient showing. In the District Court, Mr. Gonzalez-Huerta offered no mitigating evidence that suggests a lower sentence would be justified, nor did he contest facts in the presen-tence report. Indeed, the court specifically asked Mr. Gonzalez-Huerta, “Are all of the statements of fact in your [presen-tence] report correct?” Mr. Gonzalez-Huerta replied, “Yes.” The court then inquired, “[I]s there any need for an eviden-tiary hearing on disputed facts?” Defense counsel stated there was not. The court again asked, “Are there any written materials other than the presentence report that I should take into account?” Mr. Gonzalez^-Huerta’s lawyer replied, “Nothing on behalf of the defendant, Judge.” The court then stated its intention to sentence Mr. Gonzalez-Huerta to 57 to 71 months’ incarceration and asked, “Are you in agreement with that?” Defense counsel replied, “Yes, your honor.” Yet again, the court asked defense counsel, “would you like to make a statement on behalf of Mr. Gonzalez at this time?” Defense counsel thanked the Judge for sentencing at the low end of the range and stated that he had informed Mr. Gonzalez-Huerta that he was eligible for good-time credits. This record, at best, leaves me only with speculation that the District Court would have issued a lower sentence if it had sentenced under a non-mandatory Guideline regime. The Court in Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999), which was a capital case, instructs that such speculation about a possible lighter sentence cannot satisfy the third prong of plain error. The Court held that when “the effect of an alleged error is so uncertain, a defendant cannot meet his burden of showing that the error actually affected his substantial lights.” Jones, 527 U.S. at 394-95, 119 S.Ct. 2090; see also United States v. Rodriguez, 398 F.3d 1291, 1299-1301 (11th Cir.2005) (applying Jones to a constitutional Booker error case), petition for cert. filed, (U.S. Feb. 23, 2005) (No. 04-1148). The Court faced a similar issue in Romano v. Oklahoma, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994), another capital case. In Romano, the Court held that even if the sentencing jury considered an impermissible factor in recommending a death sentence, the defendant could not demonstrate that substantial rights were affected when that “conclusion necessarily rests upon one’s intuition.” Id. at 14, 114 S.Ct. 2004. This Court faces a similar situation here. Mr. Gonzalez-Huerta urges that if he were resentenced, the District Court would enter a lower sentence. But this conclusion, as in Romano, necessarily rests upon Mr. Gonzalez-Huerta’s intuition that the sentencing court would employ its newfound sentencing discretion to enter a lower sentence. One could just as easily intuit that the court here would enter the same sentence. Indeed, in many cases, although not in this case, a reviewing court could easily intuit that the district court would impose a greater sentence on remand. Cf. United States v. Forbes, slip op. No. 03-1597, 124 Fed.Appx. 45, 47, 2005 WL 481605, *2 (2nd Cir. Mar.1, 2005) (unpublished) (“We note that should Forbes determine upon remand that for whatever reason, including the possibility that he might expose himself to a higher sentence, he does not in fact seek resentencing, he may so inform the court”). Therefore, I would hold that Mr. Gonzalez-Huerta has not met his burden. The dissent relies heavily on post-Booker sentencing statistics from the United States Sentencing Commission. See Linda D. Maxfield, U.S. Sentencing Comm’n, Data Extract on March S: Numbers on Postr-Booker Sentencings at 2 (Mar. 14, 2005) (available at http://www.ussc.gov/Blakely/booker— 030305.pdf) (last visited Mar. 30, 2005). Relying on these statistics, the dissent states that 13.7 percent of all sentences post-Booker are below the Guidelines range when the Government does not recommend a departure. The dissent argues that this statistical variance suggests that both the third and fourth prongs of plain-error review are met in most non-constitutional Booker plain error cases. This lone statistic, however, does not display the whole picture. The rate of non-government-sponsored, below-Guidelines-range sentences is only slightly greater post-Booker than before Blakely and Booker were handed down. See Linda D. Maxfield, U.S. Sentencing Comm’n, Data Extract on March IS: Numbers on Post-Booker Sentencings at 10 (Mar. 22, 2005) (available at http://www.ussc.gov/Blakely/booker— 032205.pdf) (last visited Mar. 30, 2005). In Fiscal Year 2002 (i.e., before Blakely), 11.9 percent of defendants were sentenced below the Guidelines range without government sponsorship. Id. Post -Booker, 13.7 percent of defendants are sentenced below the Guidelines range without government sponsorship. Id. This is a change of only 1.8 percentage points. This 1.8 percentage point increase in the likelihood of a lower sentence — without any case-specific indicia that a lower sentence would be entered — does not show “a reasonable probability that, but for the error claimed, the result of the proceeding [in this case] would have been different.” United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2339, 159 L.Ed.2d 157 (2004). Even more telling, in Fiscal Year 2002, only 0.8 percent of sentences were above the Guidelines range. Maxfield, U.S. Sentencing Comm’n, Data Extract on March 15: Numbers on Postp-Booker Sentencings at 10. Post-Booker, 1.9 percent of sentences are above the Guidelines range. Id. This is a change of 1.1 percentage points. If this Court were to rely upon generalized statistics as the dissent suggests, then it would face a situation in which, post-Booker, a defendant has a 1.8 percentage point increased chance of a below-Guidelines-range sentence and a 1.1 percentage point increased chance of an above-Guidelines-range sentence. Without any case-specific indicia that a lower (or greater) sentence would be given, whether these statistics show a reasonable probability that a lower sentence would be entered is a “conclusion [that] necessarily rests upon one’s intuition.” Romano, 512 U.S. at 14, 114 S.Ct. 2004. Because I would also hold that Mr. Gonzalez^Huerta bears the burden to meet the third prong of plain-error review and that he does not bear his burden, I would affirm based upon the third prong of plain-error review as well as the fourth. . Even focusing just on post-Booker statistical data, there is an important distinction that the dissent fails to mention. Of the 13.7 percent of sentences entered below the Guidelines range, 4.7 percent of those lower sentences were based upon Guidelines approved “downward departures.” Maxfield, U.S. Sentencing Comm’n, Data Extract on March 3: Numbers on Post-Booker Sentencings at 2. Thus, 8.3 percent of "[a]ll cases explicitly cit[e] either U.S. v. Booker or 18 USC § 3553 as a reason for a sentence below the guideline range .... [or] do not provide a reason for the below-guideline sentence.” Id. at 2 n. 3. Hence, post-Booker only 8.3 percent of sentences receive a non-Guidelines approved lower sentence. Here, Mr. Gonzalez-Huerta does not argue that any additional Guidelines departures apply. As such, a proper reading of the post-Booker-only statistics places Mr. Gonzalez-Huerta in a category where only 8.3 percent of defendants have received lower sentences.
EBEL, Circuit Judge, concurring. I agree with the majority’s decision to affirm Gonzalez-Huerta’s sentence under the fourth prong of the Olano plain-error test and therefore I join Sections I, IIA, IIB, IID, and III of the majority opinion. However, I disagree with the majority’s analysis and conclusion reached under the third prong of the Olano plain-error analysis (Maj. op. sections IIC), and accordingly I do not join those sections of the majority opinion. Regarding the prejudice-prong analysis, I believe that Judge Briscoe got it right, and accordingly, I join Section IV of her concurrence. Regarding the fourth prong of the Olano plain-error analysis, as noted above, I join Section HE of the majority opinion. I join Part II of Judge Hartz’s concurrence. Finally, I add this concurring opinion to offer some additional analysis applicable to the fourth-prong analysis. When an appellant meets the first three prongs of the plain-error analysis, as Gonzalez-Huerta has in this case, “an appellate court may then exercise its discretion to notice a forfeited error, but only if ... the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (quotation omitted). I agree with the majority opinion that the plain error in this case does not seriously affect the fairness, integrity or public reputation of judicial proceedings, but I write separately to discuss the specific factors that lead me to that conclusion. Judge Hartz has addressed the fourth prong in some detail in his concurrence, and I agree with his reasoning. The majority opinion, and Judge Hartz’s concurrence, appropriately note that the sentencing guidelines’ purpose was to make sentencing more uniform and, thus, more fair. They observe, therefore, that it would not generally advance the fairness, integrity or public reputation of judicial proceedings, in a systemic sense, to remand individual cases for resentencing after United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), where the sentence already imposed falls within the range established by those guidelines. Rather, a sentence within the applicable guideline range generally represents a sentence within the national norms adopted for such similarly convicted defendants. Building on this reasoning, I would suggest at least three non-exclusive factors that this court should consider in determining whether to notice and correct Booker error that has affected an appellant’s substantial rights. First, was the plain error constitutional error? This court applies a less restrictive plain-error analysis whenever an appellant urges a constitutional error. See United States v. Brown, 316 F.3d 1151, 1155 (10th Cir.2003). If there had been constitutional error here that affected Gonzalez-Huerta’s sentence, it would be much more likely to cast judicial proceedings in disrespect and would be much harder for us to uphold. See, e.g., United States v. McDaniel, 398 F.3d 540, 549 (6th Cir.2005) (holding Sixth Amendment Booker, error would diminish fairness of criminal sentencing scheme). But in this case the district court’s error in treating the sentencing guidelines as mandatory rather than only advisory was not constitutional error. The second factor I would consider is whether an appellant’s sentence falls within the guideline range, now viewed as advisory, for the defendant’s particular conduct and criminal history. Unlike a guilt/innocence determination, which is generally an “either-or” proposition, sentencing is instead “the choice of a point within a range established by Congress.” United States v. Paladino, 401 F.3d 471, 481-82 (7th Cir.2005). In this case, the district court imposed a sentence that fell within the applicable guideline range. There is, then, a comfort level here because Gonzalez-Huerta received a sentence similar to the sentence most similarly historied defendants in the United States would have received for the crime for which he was convicted. See Brown, 316 F.3d at 1161. Third, I would consider whether there was evidence in the record or proffered that would suggest that, if we remanded this case for resentencing, the district court would likely impose a significantly different sentence. See id. at 1163. It seems to me that one aspect of whether the defendant received an unfair sentence is whether the sentence would likely change to a significant degree if he were returned to the district court for discretionary resentencing. On this record, however, there is no such evidence, nor is any such evidence proffered. In this case, then, these three fourth-prong Olano factors all cut against Gonzalez-Huerta. There was no constitutional error; Gonzalez-Huerta’s sentence fell within the applicable guideline range, indicating he received the same sentence that other similarly convicted defendants would have received, so there was nothing unfair about his sentence from a societal perspective; and there is no evidence in the record or proffered to suggest that the district court, on remand, able to exercise greater discretion, would impose a significantly different sentence. Thus, there is no showing that even from the defendant’s unique perspective there was anything unfair about the sentence he received. For these reasons, I would conclude that this court need not notice the district court’s sentencing error, in treating the guidelines as mandatory, because the error does not seriously affect the fairness, integrity or public reputation of judicial proceedings in this case. . United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). . I agree with both the majority opinion and with Judge Hartz that we cannot conflate the third and fourth prongs of the plain-error analysis. Rather, we must address these two inquiries separately. . Admittedly, this will be true of most sentences that fall within the previously mandatory guideline range. Nevertheless, it is important to consider this factor, even though it will support denying relief in most plain-error cases. And this factor alone is not disposi-tive. The fourth prong of the plain-error analysis is, at its core, a discretionary prong, yet one that places a heavy burden on the party seeking to invoke it. Whether a sentence is within a societally approved range is a strong factor, but only one factor among several that we should consider in deciding whether to exercise our discretion to grant plain-error relief. . While this factor overlaps, to some degree, with the third prong's analysis, it is also relevant here under the fourth prong. Nevertheless, whether a defendant can show that he would likely receive a substantially lighter discretionary sentence on remand seems to me to be a necessary component of any fairness evaluation under the fourth prong. And, unlike the third prong's analysis, here we need not make the binary determination of whether or not the appellant was prejudiced by the plain error, we need not worry about blurring the distinction between plain and harmless error, and we need not engage in backward-looking speculation of an unknowable judicial mindset. Instead, at the fourth prong, we can apply our own objective analysis to determine whether a different sentence under a discretionary scheme is likely. Further, this factor does not drive the fourth-prong analysis like its does the third prong. Again, this is but one of several factors that we will consider before determining whether or not to exercise our discretion to notice and correct plain error. If prejudice is uncertain, we can simply take that uncertainty into account in deciding how much weight to give this factor under the fourth-prong analysis. In this case, I did not find the absence of such evidence sufficient to override the defendant’s showing of prejudice under the third prong because he made a sufficient showing of prejudice in light of his sentence being at the very bottom of a sentencing range believed by the judge to be a mandatory range, particularly when he had little incentive either to object to the sentence or to put on mitigating evidence given the prevailing case law. In the fourth-prong analysis, I would look to see whether, notwithstanding that disincentive, there is anything in the record or proffered that would suggest a substantially different sentence if we were to remand.
HARTZ, Circuit Judge, concurring: I. I join Judge Tacha’s opinion for the court. I write separately to focus on how the remedy provided by Booker affects plain-error review. II. Defendant’s sentence must be affirmed. Relief under the plain-error doctrine is not proper, because a remand for resentencing would not advance fairness or the integrity of judicial proceedings and would more likely injure the reputation of the courts than improve it. Defendant was sentenced in accordance with national norms incorporated within sentencing guidelines established by a sentencing commission whose charter for two decades has been to improve the fairness and uniformity of sentencing in the federal courts. To remand for resentencing in the absence of evidence in the record that the guideline range would be inappropriate for this defendant would serve only to permit the district court to deviate from those guidelines in the exercise of an idiosyncratic personal view of fairness. Nothing in the record suggests that the guidelines have failed to accommodate a significant feature of Defendant’s crime or personal history, and the original sentence was not unreasonable. My reasoning follows: “No procedural principle is more familiar ... than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks omitted). Nevertheless, there is also a long tradition of correcting unpre-served errors in limited circumstances. Fed.R.Crim.P. 52(b) states: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Under the plain-error doctrine a defendant who has failed to preserve a claim of error in district court is entitled to relief only when (1) the district court committed error under the law in effect at the time the appeal is heard, (2) the error is obvious under that law, and (3) the error affected the defendant’s substantial rights. Rule 52(b) then “leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (internal quotation marks omitted). The first two prongs of the plain-error test are not disputed in this case. Most of the appellate decisions regarding plain error in Boo/cer-issue cases have focused on the third prong — the effect of the error on the defendant’s substantial rights. But because of the unusual nature of the Booker decision, addressing the propriety of the exercise of discretion (what I will refer to as the fourth prong) may often enable the appellate court to avoid the troubling third-prong issues that have divided the other circuits. What was unusual about the Booker decision was the disconnect between the constitutional violation and the remedy. To be sure, the remedy (making the Sentencing Guidelines advisory only) cures the constitutional violation (permitting the judge to find by a preponderance of the evidence the facts necessary to impose a sentence of such severity). Ordinarily, however, the cure for a constitutional violation is more direct: If the court improperly instructed the jury, the case must be retried with a proper instruction; if inadmissible evidence was presented to the jury, the case must be retried without the evidence, etc. In those cases if a constitutional error — such as the admission of evidence barred by the Confrontation Clause — affected the Defendant’s substantial rights (thus satisfying prong three of the plain-error test), it is ordinarily natural to conclude that the fourth prong is also satisfied and reversal is necessary in the interest of fairness, integrity, and the public reputation of judicial proceedings. Not to reverse to correct the error is to ignore the injury the defendant suffered from the violation of his or her constitutional rights. Such would also be the appropriate approach had the remedial opinion in Booker been otherwise. If, say, the Supreme Court had decided that the cure for Booker error was to require a retrial at which the jury would have to find beyond a reasonable doubt all facts needed to determine the offense level used to calculate the guideline range, then the fourth prong would ordinarily be satisfied if the defendant had been prejudiced by the trial judge’s making a critical finding by a preponderance of the evidence. But that was not the remedy adopted in Booker. Even if the judge had made no critical finding, a defendant who preserved error is entitled to resentencing with the guidelines no longer being mandatory. And when the judge did make a critical finding, the remedy is not to set aside the improper finding but, again, only to require resentencing under a discretionary-guideline regime. As I shall explain, this is highly significant in applying plain-error’s fourth prong. As stated in Olano, discretion should not be exercised to correct a forfeited error “unless the error seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (internal quotation marks omitted). This language may suggest that in exercising discretion whether to correct the error, the appellate court should look only backwards — at, say, the unfairness or damage to the reputation of judicial proceedings caused by the error in the district court. But surely the underlying concerns are simply fairness, integrity, and the public reputation of the courts. And those virtues can also be viewed in light of the remedy to be provided for the error — in other words, by looking forward to see whether correcting the error will advance those ends. If granting the appellant the relief to which he or she would be entitled had the issue been preserved in district court would not advance