Should this Court's decision in United States v. Olano be overruled in part?

QUESTIONS PRESENTED 1. The district court excluded the public, including family members, from the courtroom for the entirety of jury selection. Petitioner’s counsel failed to object. Applying Fed.R.Crim.P. 52(b), a divided panel pretermitted the question whether this structural error “affect[ed petitioner’s] substantial rights,” and held that the integrity and reputation of the courts did not call for reversal. The question is: Should this Court’s decision in United States v. Olano, 507 U.S. 725 (1994), be overruled in part, insofar as it departs from the original meaning of Fed.R. Crim.P. 52(b) by requiring, to allow reversal as “plain error,” that an obvious structural error have not only affected an appellant’s “substantial rights” but also that it implicate the fairness, integrity or reputation of the courts? 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 petitioner was convicted — vary according to whether a given substantive “violation” is one “involving” at least a certain amount of drugs. Petitioner received a life sentence on the conspiracy count, based on the sum of the amounts involved in all distributions that were found to be within the scope of the conspiratorial agreement as a whole, 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: On what basis is the quantity of controlled substances “involved” in the “violation” ascertained for purposes of determining the maximum sentence on a conviction 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 (petitioner Hernandez and respondent United States). Petitioner had multiple co-defendants at trial. In the court below, his initial appeal was consolidated with those of co-defendants Rolando Cruz, Jr., Roscoe Villega, Jabree Williams, Eugene Rice, Douglas Kelly, Angel Schueg, Maurice Atkinson, Anthony Sistrunk, and Tyree Eatmon. None is a party to this petition. LIST OF