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No. 08-1205

 

In the Supreme Court of the United States

A. STEPHAN BOTES, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
LANNY A. BREUER
Assistant Attorney General
WILLIAM C. BROWN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

QUESTIONS PRESENTED

1. Whether the district court, in denying petitioner's motion for a mistrial after the lead prosecutor at his trial was chosen to become a United States magistrate judge, correctly declined to apply an "appearance of im propriety" standard for the disqualification of the prose cutor.

2. Whether the court of appeals erred in affirming petitioner's sentence as procedurally reasonable, when petitioner did not object at sentencing that the district court was treating the Sentencing Guidelines as manda tory or presumptively reasonable, and the district court did not in fact do so.

In the Supreme Court of the United States

No. 08-1205

A. STEPHAN BOTES, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

 

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-3) is not published in the Federal Reporter but is reprinted in 290 Fed. Appx. 316.

JURISDICTION

The judgment of the court of appeals was entered on August 25, 2008. A petition for rehearing was denied on October 27, 2008 (Pet. App. 4-5). On January 15, 2009, Justice Thomas extended the time within which to file a petition for a writ of certiorari to and including March 26, 2009, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for the Northern District of Georgia, petitioner was convicted of one count of conspiracy to embezzle federal funds and defraud the State of Georgia of money and honest services, in violation of 18 U.S.C. 371; 11 counts of embezzlement of federal funds, in violation of 18 U.S.C. 666; and three counts of wire fraud, in viola tion of 18 U.S.C. 1343. Pet. App. 1-2. He was sentenced to 97 months of imprisonment, to be followed by three years of supervised release. Id. at 2. The district court entered an order of restitution and a criminal forfeiture judgment against petitioner in the amount of $382,394. Ibid. The court of appeals affirmed.

1. Petitioner participated in a series of transactions relating to the ultimately unsuccessful campaign of Linda Schrenko for the 2002 Republican gubernatorial nomination in Georgia. Schrenko was Georgia's State School Superintendent at the time of the primary cam paign, and she had the authority to enter into contracts for goods and services for up to $50,000 on behalf of the Georgia Department of Education (GDOE) without seeking prior approval. The GDOE received about $650 million in funding from the United States Department of Education in 2002. Gov't C.A. Br. 6.

Petitioner, Schrenko, Schrenko's deputy (Merle Temple), and others orchestrated a scheme in which companies controlled by petitioner obtained more than $500,000 in GDOE funds using purported contracts in which little or nothing of value was provided to GDOE, and then secretly funneled a substantial portion of those funds back into Schrenko's gubernatorial primary cam paign. Gov't C.A. Br. 6-20. Petitioner, Schrenko, Tem ple, and a fourth defendant (who was ultimately acquit ted) were variously indicted for conspiracy, embezzle ment, wire fraud, money laundering, and structuring transactions.

2. a. Temple entered a plea agreement before trial. Doc. 62. The morning of May 1, 2006, petitioner, Schrenko and the fourth defendant began trial in the Northern District of Georgia. Later that day, the dis trict judge presiding over petitioner's trial participated in the selection of a new United States magistrate judge for the Northern District of Georgia. See 28 U.S.C. 631(a). The judges of the district selected then- Assistant United States Attorney (AUSA) Russell Vine yard. AUSA Vineyard was the lead prosecutor at peti tioner's trial, and it was anticipated that he would be sworn in as a magistrate judge in late October 2006, sev eral months after the trial would conclude. 5/2/06 Tr. 166-167, 191.

On May 2, 2006, petitioner's counsel moved for a mis trial if AUSA Vineyard did not withdraw as government counsel. 5/2/06 Tr. 167. Petitioner had advised his coun sel that he was concerned his attorneys would not zeal ously challenge AUSA Vineyard during trial. Id. at 169. Petitioner's counsel claimed that although there was no "actual impropriety," there was a serious issue of an appearance of impropriety, particularly if jurors were to learn that the district judge had supported AUSA Vine yard's selection. Id. at 170, 194. In response, AUSA Vineyard noted initially that petitioner's counsel had known of his pending application for some time and had raised no concerns. Id. at 172. The government further pointed out that-despite the common occurrence of federal prosecutors being candidates for, and being se lected for, positions as magistrate judges-no party in petitioner's case had located a decision holding that a prosecutor should be disqualified in such circumstances. Id. at 174-180, 183, 191. The government also contended that "appearance of impropriety" was not the standard for disqualification of trial counsel, and that the appear ance of impropriety argument advanced by petitioner was "just the remotest speculation in this case." Id. at 188. Finally, the government argued that if AUSA Vine yard had any conflict of interest, it would stem from his "trying to appear neutral rather than [] vigorously rep resenting the United States," but the government had no concern on that score and would waive any conflict. Id. at 189-191.

Petitioner's counsel repeatedly made it clear that petitioner was not seeking recusal of the district judge. 5/2/06 Tr. 187-188 ("THE COURT: * * * Your motion was not to recuse myself? MR. STEEL: No, sir."); id. at 196 ("[W]e're not asking to remove this honorable Court. We don't want to lose this Court."). Rather, pe titioner suggested the court adopt a "bright line rule" that when attorneys "make[] it known that they will be with the Court * * *, they should not be prosecuting a case in the same courthouse where they will be working as the Court." Id. at 195.

After considering the arguments of counsel, the dis trict judge declined to disqualify AUSA Vineyard or declare a mistrial. The district judge stated:

[C]ounsel for the Defendants have perceived that my impartiality-that neither my impartiality nor Mr. Vineyard's impartiality is at issue in this case. They're more concerned about the public perception.

Having taken all that into consideration, the Court is going to allow Mr. Vineyard to remain in the case until such time as he's sworn in as a U.S. Magis trate. Therefore, I'm going to deny the Motion for Mistrial.

5/2/06 Tr. 199-200.

b. The trial resumed. Several days later Schrenko and the government reached a plea agreement. Gov't C.A. Br. 5 n.2. The jury found petitioner guilty on 15 counts, and acquitted him of the remaining counts.

c. Schrenko was sentenced first. Pursuant to her plea agreement, the district court imposed a sentence of 96 months of imprisonment, to be followed by three years of supervised release. Doc. 268. She did not ap peal.

At petitioner's sentencing two months later, the dis trict judge calculated petitioner's total offense level at 30 (with a base offense level of ten under Sentencing Guidelines § 2C1.7(a); an increase of 14 levels, pursuant to Sentencing Guidelines § 2B1.1(b)(1)(H), because of a loss amount of $614,387.50; an increase of four levels, pursuant to Sentencing Guidelines § 3B1.1(a), because of petitioner's leadership role in the offense; and an in crease of two levels, pursuant to Sentencing Guidelines § 3C1.1, because of petitioner's obstruction of the inves tigation). Gov't C.A. Br. 26-28; 9/11/06 Tr. 3, 21-23, 27. With petitioner's category I criminal history, his advi sory Sentencing Guidelines range was 97 to 121 months. Id. at 29.

Before the imposition of sentence, petitioner's coun sel enumerated various considerations under 18 U.S.C. 3553(a) to support his argument for a "more lenient sen tence than the guideline range calls for." 9/11/06 Tr. 62- 66. The government countered that, given that peti tioner remained "defiant and unrepentant" at sentenc ing and "characterize[d] himself as a victim," "a sen tence within the guideline range would be appropriate under the 3553(a) factors to promote respect for the law and to reflect the seriousness of the offense." Id. at 67. The judge then announced he would sentence petitioner within the guidelines range and imposed a sentence of 97 months of imprisonment, stating:

Let the record reflect the Court had considered sen tencing the defendant pursuant to 18 U.S.C. 3553 and the factors outlined therein. However, the Court decided not to since a more appropriate sentence can be imposed pursuant to the custody guideline range as outlined in the U.S. Sentencing Commission [Guidelines]. Also, the Court has sentenced the oth er defendants pursuant to the guideline range. And the Court hereby imposes [a sentence of 97 months of imprisonment].

Id. at 67-68. Petitioner raised no objection.1

Temple was sentenced the same day as petitioner, and like petitioner, he was sentenced to 97 months of imprisonment, to be followed by three years of super vised release. Doc. 284. He did not appeal.

3. Petitioner appealed. The court of appeals af firmed in an unpublished per curiam opinion. Pet. App. 1-3. The court of appeals stated that it had carefully reviewed the record and the briefs of the parties, and it listed petitioner's 15 arguments challenging his convic tions and his sentence, including his claim that the dis trict judge erred in denying a mistrial based on the se lection of a prosecutor as magistrate and his claim that his sentence was unreasonable. Id. at 2-3. The court of appeals stated without further explanation that peti tioner's arguments had "no merit," and it affirmed the judgment of the district court. Id. at 3.

ARGUMENT

1. Petitioner seeks review on the question whether a motion for a mistrial, based on the prosecutor's selec tion as a magistrate judge, is evaluated under an "ap pearance of impropriety" standard. Pet. i, 7-12. Peti tioner identifies no other decisions addressing this issue, let alone a disagreement among the courts of appeals or a conflict with any decision of this Court. In any event, the decision of the court of appeals is correct. Further review of this claim is therefore unwarranted.

a. As both the petition and the extensive oral collo quy with the district court reflect (e.g., 5/2/06 Tr. 187, 190, 191, 196), petitioner has uncovered no judicial deci sions on the standard for recusing an attorney who is selected to be a magistrate judge (or for declaring a mis trial on that basis). The decision of the court of appeals rejecting petitioner's mistrial argument thus does not conflict with any decision of this Court or any other court of appeals. Moreover, the court of appeals' affir mance without opinion renders the basis for the judg ment unclear. Rather than adopting the legal rule peti tioner attributes to it, the court may instead have con cluded there was in fact no meaningful "appearance of impropriety" (as the government had argued, id. at 188).2

In any event, an "appearance of impropriety" stan dard has no application here. Under the American Bar Association's Model Rules of Professional Conduct-on which the Georgia Rules of Professional Conduct (Geor gia Rules) are modeled-"the appearance of impropriety is not a ground for disqualifying a lawyer from repre senting a party to a lawsuit." Waters v. Kemp, 845 F.2d 260, 265 & n.12 (11th Cir. 1988); accord State v. Shear son Lehman Bros., 372 S.E.2d 276, 279 (Ga. Ct. App. 1988) (applying Georgia Code of Professional Responsi bility, which preceded the Georgia Rules) ("The case law is clear that counsel may not be disqualified on the basis of an appearance of impropriety alone.") (citing Blum enfeld v. Borenstein, 276 S.E.2d 607, 608 (Ga. 1981)). Petitioner cites no contrary authority. The Georgia Rules provide for disqualification of an attorney only where there is a conflict of interest that has not been properly waived (see Ga. R. Prof'l Conduct 1.7), but pe titioner has identified no such conflict in this case-and if any conflict did exist, it would be the United States' conflict to waive, which the United States Attorney did, see 5/2/06 Tr. 191.

Petitioner nonetheless points (Pet. 10) to Georgia Rule 8.2(b), which provides that "[a] lawyer who is a candidate for judicial office shall comply with the appli cable provisions of the Code of Judicial Conduct." Peti tioner argues (ibid.) that AUSA Vineyard, as a "candi date for judicial office," was subject to Canon 2 of the Georgia Code of Judicial Conduct (Code), "Judges Shall Avoid Impropriety and the Appearance of Impropriety in All Their Activities." As an initial matter, petitioner did not argue in the district court that the Code was ap plicable to AUSA Vineyard; review of that unpreserved claim accordingly would be for plain error only. Also, petitioner frames this as a matter of state ethics rules, an issue on which this Court ordinarily would not opine. See, e.g., Leavitt v. Jane L., 518 U.S. 137, 144 (1996) (per curiam) (Court does not normally grant a writ of certio rari to decide questions of state law).

Moreover, petitioner's argument is incorrect on the merits, for three reasons. First, Georgia Rule 8.2(b) by its terms subjects an attorney only to "applicable provi sions" of the Code. Comment 2 to Georgia Rule 8.2 im plies that the "applicable limitations" are only those "on political activity." Second, even if there are other "ap plicable provisions," avoidance of the appearance of im propriety is not one of them. The appearance of impro priety is measured by the "perception that the judge's ability to carry out judicial responsibilities with integ rity, impartiality and competence is impaired," but a candidate for judicial office by definition has no such responsibilities. Code Canon 2A cmt. (emphasis added). Third, even if that test extended to all responsibilities, nothing in the circumstances here suggested that the selection of AUSA Vineyard made him unable to carry out his responsibilities "with integrity, impartiality and competence," ibid.

b. Petitioner further argues (Pet. 11) that the dis trict judge should have recused himself pursuant to 28 U.S.C. 455(a) because the judge had supported the se lection of AUSA Vineyard for the magistrate judge posi tion. If this was error, petitioner invited it. Counsel twice made it clear petitioner did not seek the district judge's recusal and affirmatively requested the judge to remain on the case. See 5/2/06 Tr. 187-188; id. at 196 ("[W]e're not asking to remove this honorable Court. We don't want to lose this Court."). There is no reason for this Court to "set aside [the] standing rule[], so nec essary to the due and orderly administration of justice" that it will not review errors a petitioner invited below. See, e.g., Johnson v. United States, 318 U.S. 189, 200-201 (1943) (citation omitted).

Even if the Court were to overlook this threshold bar to petitioner's claim, he offers no objectively reasonable basis for questioning the district judge's impartiality in handling his case. See 28 U.S.C. 455(a). Recusal ac cordingly would have been unwarranted, as the only relevant appellate authority confirms. See Pickard v. United States, 170 Fed. Appx. 243 (3d Cir.) (affirming district judge's denial of defendant's motion to recuse following the district judge's participation in selection of defendant's former counsel to become magistrate judge), cert. denied, 549 U.S. 935 (2006).

c. Finally, petitioner asks the Court (Pet. 12) to grant the petition for a writ of certiorari, vacate the judgment below, and remand for further consideration in light of Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009). That course of action is unwarranted. Caperton addressed whether the Due Process Clause requires an elected judge to recuse when he has "re ceived campaign contributions in an extraordinary amount" from the corporate chairman of a party in a high-stakes case before him. Id. at 2256. AUSA Vine yard's continued participation as a prosecutor in peti tioner's case after his selection does not present a ques tion involving judicial bias or financial support, nor did petitioner contend below that his due process rights were violated by AUSA Vineyard's continued represen tation of the United States.

2. Petitioner next contends (Pet. 12-17) that the court of appeals treated the advisory Sentencing Guide lines range as "de facto mandatory" in violation of United States v. Booker, 543 U.S. 220 (2005), or as sup plying the "presume[d] * * * sentence" in violation of Rita v. United States, 551 U.S. 338 (2007). Petitioner failed to preserve that claim below, there is no reason to think the court of appeals' affirmance rested on an in correct understanding of Booker or Rita, and in any event the claim is unsupported by the record.

a. In Booker, the Court held that because the Sen tencing Reform Act of 1984 made the federal Sentencing Guidelines mandatory, a Guidelines sentence that is en hanced based on facts found by the judge violates the Sixth Amendment jury trial right. 543 U.S. at 230-244. To remedy the Guidelines' constitutional defect, Booker invalidated provisions of the Sentencing Reform Act that made the Guidelines mandatory, 18 U.S.C. 3553(b) and 3742(e), thereby "mak[ing] the Guidelines effec tively advisory." 543 U.S. at 245. This Court further held in Rita that a court of appeals may apply a "pre sumption of reasonableness" to a within-Guidelines sen tence, but that "the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sen tence should apply." 551 U.S. at 351.

The Eleventh Circuit recognizes that Booker renders the Guidelines advisory only. See, e.g., United States v. Shelton, 400 F.3d 1325, 1331 (2005) ("As a result of Booker's remedial holding, Booker error exists when the district court misapplies the Guidelines by considering them as binding as opposed to advisory."). Likewise, even before Rita, the Eleventh Circuit rejected the view that district courts could treat a Guidelines sentence as presumptively reasonable. See, e.g., United States v. Hunt, 459 F.3d 1180, 1184-1185 (2006).

b. Nothing in the court of appeals' decision suggests it failed to apply those rules here. Petitioner focuses (Pet. 14) on the district judge's comment that he "had considered sentencing the defendant pursuant to 18 U.S.C. § 3553 and the factors outlined therein," but "de cided not to since a more appropriate sentence can be imposed pursuant to the custody guideline range as out lined [by] the U.S. Sentencing Commission." 9/11/06 Tr. 67. Petitioner contends that this reflects the district court's treatment of the Sentencing Guidelines as man datory (Pet. i, 12-14) or presumptively reasonable (Pet. 15-16). That claim lacks merit.

Petitioner did not object to the district court's treat ment of Section 3553(a). A procedural error at sentenc ing is subject to the general principle that any error "not brought to the [district] court's attention" is forfeited on appeal, unless it meets the standard for reversible plain error. Fed. R. Crim. P. 52(b); see United States v. Olano, 507 U.S. 725, 732 (1993). The courts of appeals agree that where, as here, a district court asks the par ties if they have any objections to the sentence and "the relevant party does not object, then plain-error review applies on appeal to those arguments not preserved in the district court." United States v. Vonner, 516 F.3d 382, 385 (6th Cir.) (en banc), cert. denied, 129 S. Ct. 68 (2008). "[N]o court of appeals * * * has rejected this * * * approach to clarifying objections to a criminal sentence." Id. at 391. See, e.g., In re Sealed Case, 527 F.3d 188, 191-192 (D.C. Cir. 2008); United States v. Per kins, 526 F.3d 1107, 1111 (8th Cir. 2008); United States v. Mangual-Garcia, 505 F.3d 1, 15 (1st Cir. 2007), cert. denied, 128 S. Ct. 2081 (2008); United States v. Verk hoglyad, 516 F.3d 122, 127-128 (2d Cir. 2008); United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.), cert. denied, 129 S. Ct. 625 (2008); United States v. Knows His Gun, 438 F.3d 913, 918 (9th Cir.), cert. de nied, 547 U.S. 1214 (2006); United States v. Lopez- Flores, 444 F.3d 1218, 1220-1221 (10th Cir. 2006), cert. denied, 127 S. Ct. 3043 (2007); see also United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006). Petitioner therefore must show "(1) 'error,' (2) that is 'plain,' and (3) that 'affect[s] substantial rights,'" before the court of appeals would have discretion to reverse. Johnson v. United States, 520 U.S. 461, 467 (1997) (quoting Olano, 507 U.S. at 732) (brackets in original). He cannot make any of these three threshold showings.3

First, petitioner's claim fails because the district court committed no error. A fair reading of the sentenc ing proceedings here does not suggest the district court thought the Guidelines were binding or entitled to a pre sumption of reasonableness. At sentencing, both de fense counsel and the prosecution addressed the possi bility of a sentence outside the calculated Guidelines range based on other Section 3553(a) factors, with the defense arguing for a sentence below the Guidelines range and the prosecutor stating that "a sentence within the guideline range would be appropriate under the 3553(a) factors." 9/11/06 Tr. 62-67. In the context of a choice between a below-guideline sentence driven by the Section 3553(a) factors, and a within-guideline sentence driven by those same factors (including the guidance provided by the advisory Sentencing Guidelines), the only fair reading of sentencing judge's statement that a "more appropriate sentence can be imposed pursuant to the custody guideline range," id. at 67, is that the Sec tion 3553(a) factors on balance warranted a sentence that fell within petitioner's Guidelines range. The claim that the district court "did not impose a sentence with reference to the [Section 3553(a)] factors" (Pet. 14) is belied by the very reasons the court gave in imposing the sentence it did-a belief that the Guidelines provide a "more appropriate" sentence, and a concern that a defendant be sentenced similarly to equally culpable "other defendants [sentenced] pursuant to the guideline range" (9/11/06 Tr. 67). Those are considerations enu merated in Section 3553(a). See 18 U.S.C. 3553(a)(4) and (6).4

Second, petitioner cannot establish that any error was "obvious," Olano, 507 U.S. at 734, and any ambigu ity results from his failure to request clarification. Had petitioner objected when the court gave its reasons for imposing the sentence it did, the district court would have had an opportunity to state (as petitioner supposes) that it was openly disregarding Booker's remedial hold ing, or (far more likely) that it had considered the fac tors in Section 3553(a) and concluded that a sentence at the low end of petitioner's Guideline range was "a sen tence sufficient, but not greater than necessary, to com ply with the purposes" of Section 3553(a)(2). Any ambi guity must be resolved against petitioner, because he must carry the burden of demonstrating obvious error. See United States v. Vonn, 535 U.S. 55, 58 (2002).

Third, petitioner fails to meet his burden of showing that any error affected his substantial rights-that in the absence of error, the district court would have im posed a lower sentence. Petitioner suggests that the district court's "mandatory application of the Guide lines" caused it to "[c]ompletely ignore[]" petitioner's background, the collateral consequences of his prosecu tion, and his low risk of recidivism. Pet. 17. Again, the record shows otherwise. At sentencing, the district court listened to seven witnesses called on petitioner's behalf (9/11/06 Tr. 31-46); petitioner's lengthy address to the court spanned 15 pages of transcript (id. at 47- 62); and counsels' argument on the 3553(a) factors spanned five more pages (id. at 62-67). The district court did not suggest the Guidelines made this an empty exercise; rather, the court listened to the testimony and argument, considered it, and pronounced sentence.

Rather than supporting petitioner's claim of preju dice, the record supports the conclusion that the district court would not have sentenced petitioner to a term of imprisonment of less than 97 months: The district court was evidently concerned about avoiding sentencing dis parities between petitioner and his co-defendants. See 9/11/06 Tr. 67 ("[T]he Court has sentenced the other defendants pursuant to the guideline range."). The court sentenced Schrenko and Temple (defendants who pleaded guilty, no less) to 96 months and 97 months, respectively. See pp. 5-6, supra. There is no reason to think that the court would have applied the Section 3553(a) factors to sentence petitioner-who was equally culpable, and remained unrepentant even at sentencing, see 9/11/06 Tr. 47-62-to a lighter prison term than Schrenko and Temple.

c. Petitioner asks (Pet. 15) that the petition be gran ted, the judgment of the court of appeals vacated, and the case remanded (GVR) for consideration in light of Nelson v. United States, 129 S. Ct. 890 (2009) (per cur iam). Nelson is inapposite because there it was "plain from the comments of the sentencing judge that he did apply a presumption of reasonableness to Nelson's Guidelines range," id. at 892, yet the court of appeals had affirmed his sentence, contrary to Rita. As dis cussed above, it is anything but "plain from the com ments of the sentencing judge that he did apply a pre sumption of reasonableness"-the reasonable reading is the opposite, and any ambiguity traces to petitioner's failure to ask the district court to clarify its treatment of Section 3553(a).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
LANNY A. BREUER
Assistant Attorney General
WILLIAM C. BROWN
Attorney

JULY 2009

1 After the court pronounced sentence, petitioner's counsel renewed "[j]ust the objections previously made," 9/11/06 Tr. 71, but there had been no "objection[] previously made" to the district court's treatment of Section 3553.

2 To the extent that petitioner suggests (Pet. 9) that the government conceded that AUSA Vineyard's participation created an appearance of impropriety, he is mistaken. See Sup. Ct. R. 15.2. Although the gov ernment did not agree that "appearance of impropriety" was the stan dard for disqualification of counsel under the Georgia rules, the govern ment also stressed that petitioner's claims on that score were based on the "remotest speculation." 5/2/06 Tr. 188.

3 The government took no position in the court of appeals on whether petitioner had preserved this issue for review, because the absence of error, see pp. 13-14, infra, was sufficient to dispose of petitioner's claim.

4 Petitioner notes (Pet. 13) two other points in the sentencing hearing where the district judge stated he would impose a sentence within the Guidelines range. See 9/11/06 Tr. 4, 29. The district judge's statements that he intended to impose a within-Guidelines sentence do not suggest that he believed such a sentence was mandatory or that he presumed such a sentence would be reasonable.