Nguyen v. United States, 539 U.S. 69, 16 (2003)

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Rehnquist, C. J., dissenting

because [they were] not timely raised" below. United States v. Olano, 507 U. S. 725, 731 (1993) (emphasis added). Even when an error has occurred that is " 'plain' " and " 'affect[s] substantial rights,' " id., at 732, " 'an appellate court may . . . exercise its discretion to notice a forfeited error . . . only if . . . the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings,' " United States v. Cotton, 535 U. S. 625, 631-632 (2002) (quoting Johnson v. United States, 520 U. S. 461, 467 (1997)) (emphasis added). By ignoring this well-established limitation of our remedial authority, the Court flouts the stated will of Congress and almost 70 years of our own precedent.

It was undoubtedly a mistake, for the reasons stated by the Court, ante, at 74-76, for the appellate panel to include an Article IV judge. Exercise of our certiorari jurisdiction was warranted to review the case and to state the law correctly. To that extent, I agree with the Court's opinion. But I do not agree that that error is a valid basis for vacating petitioners' convictions, because even assuming that the error affected petitioners' substantial rights, it simply did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.

Petitioners knew of the composition of the panel of the Court of Appeals more than a week before the case was orally argued. App. 7, 9-12. They made no objection then or later in that court, preferring to wait until the panel had decided against them on the merits to raise it. The Court first concedes, as it must, that a failure to object to error limits an appellate court to review for plain error. Ante, at 80. But the Court then completely ignores the fact that "the authority created by Rule 52(b) is circumscribed." Olano, supra, at 732. Indeed, the opinion fails to cite, much less apply, Olano or our other recent cases reaffirming that "we exercise our power under Rule 52(b) sparingly," Jones v. United States, 527 U. S. 373, 389 (1999), and only " 'in those circumstances in which a miscarriage of justice would other-

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