Whether a structural error that is both obvious and affects substantial rights can be excused on plain error review due to the potential costs of retrial

QUESTIONS PRESENTED 1. The district court excluded the public, including family members, from the courtroom for the entirety of jury selection. Petitioners’ counsel failed to object. Applying Fed.R.Crim.P. 52(b), a divided panel pretermitted the question whether this structural error “affect[ed petitioners’] substantial rights,” and held that the integrity and reputation of the courts did not call for reversal. The question is: In assessing whether a constitutional error that is both structural and obvious warrants reversal on plain error review, can the potential costs of retrial outweigh the public interest in enforcement of fundamental rights? 2. Section 846 of title 21 provides that the available penalties for a controlled substances conspiracy violation are “the same ... as those prescribed for the offense, the commission of which was the object of the ... conspiracy.” Under id. § 841(b)(1), the penalties for “the offense” of drug distribution — which was the object of the conspiracy for which petitioners were convicted — vary according to whether a given substantive “violation” is one “involving” at least a certain amount of drugs. A course of drug dealing is not an “offense” and cannot be prosecuted as a count of “distribution,” so as to aggregate the quantities involved and thus increase the penalties. Two petitioners received life sentences (and the other, 25 years) on the conspiracy count, based on the sum of the amounts involved in all distributions that were found to be within the scope of their agreement and foreseeable to them, even though no single agreed-upon transaction exceeded the threshold quantity required for such a sentence. The question, on which the Circuits are divided, is: How is the quantity of controlled substances “involved” in drug distribution determined for purposes of sentencing for conspiracy under 21 U.S.C. § 846, when the offense of distribution is the object of the conspiracy? LIST OF ALL PARTIES The caption of the case in this Court contains the names of all parties to this petition (petitioners Cruz, Hernandez and Villega, and respondent United States). Petitioners had multiple co-defendants at trial. In the court below, their appeals were consolidated with those of co-defendants Jabree Williams, Eugene Rice, Douglas Kelly, Angel Schueg, Maurice Atkinson, Anthony Sistrunk, and Tyree Eatmon. Petitioners are not aware, as of this filing, whether any of these codefendants will be filing their own petitions in this Court. -ii