Assuming that the district court erred in failing to state that the guidelines range was two years to life, and that such error was plain, Toomey has not shown a "reasonable probability that, but for the district court's misapplication of the Guidelines, he would have received a lesser sentence." United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005) (post- Booker); but see United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997) (pre- Booker, holding that inquiry is whether the district court could have imposed the same sentence). Consistent with Ravitch, the district court could reimpose the same sentence on remand.
Plain error review, however, differs from the harmless error analysis in the additional respect that the question is not whether the district court would have chosen the same sentence absent the error, but whether it could have done so. See United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997) ("[W]here we have concluded that `[i]f the case were remanded the trial judge could reinstate the same sentence,' we have upheld the defendant's sentence although the district court's stated reasons . . . evidence a mistaken application of the Sentencing Guidelines." (quoting United States v. Brunson, 915 F.2d 942, 944 (5th Cir. 1990))).
We may consider this question on appeal, therefore, only if it constitutes plain error. See United States v. Olano, 507 U.S. 725, 731 (1993) ("No procedural principle is more familiar to this Court than that a [right] 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.") (quoting Yakus v. United States, 321 U.S. 414, 444 (1944) (internal citations omitted)); see also United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997); Calverley, 37 F.3d at 162; Helms v. United States, 340 F.2d 14, 19 (5th Cir. 1964). We find plain error "only when the appellant shows that (1) there is an error, (2) the error is plain, and (3) the error affects her substantial rights."
Accordingly, there must be error, the error must be plain, and the error must affect appellant's substantial rights. United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997). This circuit has held that even if such error is proven, the decision to correct the forfeited error falls within the discretion of the appellate court.
This Circuit has occasionally applied a different standard to this prong of plain-error review, asking instead whether the district court could impose the same sentence on remand. See Earnest Jones, 489 F.3d at 682 (citing United States v. Ravitch, 128 F.3d 865, 869 (5th Cir.1997) ). There is some doubt as to whether Ravitch 's objective test survived United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Davis, 602 F.3d 643, 647 n. 6 (5th Cir.2010).
He does not argue that if the case was remanded for resentencing, the district court could not impose the same consecutive sentences. See United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997). Additionally, he points to nothing in the record to support his conclusional assertion that there is a reasonable probability that, but for the district court's error, he would have received lower sentences.
(As noted recently, our court has not fully resolved whether a different substantial-rights standard also remains in effect, i.e., "if the case were remanded, the trial judge could reinstate the same sentence". United States v. Davis, 602 F.3d 643, 647 n. 6 (5th Cir. 2010) (quoting United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997)).) Even if defendant makes that showing, our court retains discretion to correct the error and, generally, will do so only "if the error seriously affects the fairness, integrity or public reputation of judicial proceedings".
United States v. Villegas, 404 F.3d 355, 364-65 (5th Cir. 2005) (emphasis added). (As noted recently by our court, and discussed infra, it is unclear whether a different, pre- Booker, standard for evaluating a sentencing error's effect on substantial rights remains in effect: "if the case were remanded, the trial judge could reinstate the same sentence". United States v. Davis, 602 F.3d 643, 647 n. 6 (5th Cir. 2010) (quoting United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997)).) For Rule 52(a) harmless-error review, the Government bears the burden of showing the error was harmless beyond a reasonable doubt; however, for Rule 52(b)'s plain-error review, it is the defendant who bears the burden of persuasion with respect to the prejudice (third) prong.
Pre- Booker, our standard for evaluating an error's effect on substantial rights was whether, "if the case were remanded, the trial judge could reinstate the same sentence." United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997). Some of our cases have questioned whether Ravitch might continue to apply post-Booker See, e.g., United States v. Price, 516 F.3d 285, 289 n. 28 (5th Cir. 2008).
We recognize the potential conflict between pre- and post- Booker decisions addressing the question of "affecting substantial rights." In our pre- Booker case United States v. Ravitch, we asked "`if the case were remanded, [whether] the trial judge could rein-state the same sentence.'" 128 F.3d 865, 869 (5th Cir. 1997) (emphasis added) (quoting United States v. Branson, 915 F.2d 942, 944 (5th Cir. 1990)). If the judge could reinstate the sentence, we held, we would find no prejudice under plain error review. Post- Booker, in United States v. Villegas, we held that the question of substantial rights turns on "whether the defendant can show a reasonable probability that, but for the district court's misapplication of the Guidelines, [the defendant] would have received a lesser sentence."