United States v. Bain

I concur due to this circuit’s precedent requiring plain error review of unpreserved procedural errors. I write separately because, on these facts, Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), requires remand.

Before Booker, the Supreme Court interpreted 18 U.S.C. § 3742(f)(1) as requiring harmless error analysis of misapplication of the guidelines — which is a procedural error post-Gall. See Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). Williams addressed a district court’s upward departure based on both prohibited and…