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illegal, unconstitutional sentence—or, alternately, because it violates the defendant’s important
Fifth and Sixth Amendment rights to have all the elements of the crime alleged in the indictment
and to have those facts submitted to the jury for determination beyond a reasonable doubt. From
this perspective, the evidence presented at trial and sentencing cannot counteract the rights
violations, especially not the error with respect to the indictment, which occurred prior to trial.
This alternative could be described as the “pro-rights” alternative; it is clearly liberal in the sense
of being pro-defendant. There can be little question that adopting this rule would lead to relief
being granted in many more cases than the anti-crime alternative. In this sense, the liberal rule is
also the more disruptive of the two alternatives.
Outcomes
The D.C., First, and Third Circuits adopted the conservative approach to the fourth Olano
prong, complementing their conservative position on the third prong.
30
In its en banc decision in
United States v. Thomas (2001), the Second Circuit adopted the liberal alternative. The rules
adopted by the Sixth and Ninth Circuits on this issue are difficult to determine prior to May
2002, given a lack of consistency in the analysis applied in published opinions.
The most interesting aspect of the decisions is the intense judicial disagreements among
the judges of the Third and Fourth Circuits on this issue. The judges of the Third Circuit split
seven-to-six on this issue in United States v. Vazquez (2001).
31
The seven-judge Vazquez
majority clearly adopted the anti-crime view on the fourth Olano prong. In the opinion of the
court, Judge Fuentes (Clinton) concluded that “even if [the defendant’s] substantial rights were
affected, we decline to exercise our discretion to notice the Apprendi violation under the final
plain error factor because the drug quantity evidence was overwhelming” (Vazquez 2001, 99). In
dissent, however, Judge Sloviter (Carter) criticized the majority for, in her words, “devis[ing] a
Convention