United States v. Omar Castillo-Casiano

204 F.3d 1257, 2000 Cal. Daily Op. Serv. 1937, 2000 Daily Journal DAR 2664, 2000 U.S. App. LEXIS 3639, 2000 WL 263377

Opinion

ORDER

The opinion filed December 28, 1999 [198 F.3d 787] is amended as follows:

1. On slip opinion page 14988, line 11 [198 F.3d at 791], add the following footnote after the sentence that ends “we may only determine whether the facts could possibly support such a departure:”

This standard for determining whether the error was harmless applies in both plain error and harmless error cases, because shifting the burden from the government to the defendant, as we do in Rule 52(b) plain error cases (including the present case), does not affect the substantive standard governing what renders an error prejudicial. See [U.S. v. ]Olano, 507 U.S. [725] at 734[, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)]. In sentencing discretion cases the shift will ordinarily have little or no practical consequence.

With the opinion thus amended, the panel has voted unanimously to deny appellants’ petition for rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

Accordingly, the petition for rehearing and the petition for rehearing en banc are DENIED.