Nguyen v. United States, 539 U.S. 69, 20 (2003)

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Rehnquist, C. J., dissenting

from a series of statutes that describe the proper use of district judges in panels of the Courts of Appeals. See ante, at 75-76.

The Court also says that "to ignore the violation of the designation statute in these cases would incorrectly suggest that some action (or inaction) on petitioners' part could create authority Congress has quite carefully withheld." Ante, at 80. But proper affirmance of petitioners' convictions on the ground that the error did not affect the fairness, integrity, or public reputation of judicial proceedings would not so suggest. The Government has conceded the error, and the Court's opinion properly makes clear to the Courts of Appeals that Chief Judge Munson's participation constituted plain error. Indeed, the Court unwittingly explains why its own holding is mistaken: By ignoring the limits that Congress has imposed on appellate courts' discretion via Rule 52(b), the Court "create[s]" for itself and exercises "authority [that] Congress has quite carefully withheld." Ibid.

On this record, there is no basis for concluding that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. No miscarriage of justice will result from deciding not to notice the plain error here. Accordingly, I would proceed to address petitioners' constitutional claims. Petitioners argue that the designation of a non-Article III judge to sit on the Ninth Circuit panel violated the Appointments Clause, U. S. Const., Art. II, 2, cl. 2, and the structural guarantees embodied in Article III. I would decline to address the first question because it was "neither raised nor decided below, and [was] not presented in the petition for certiorari." Blessing v. Freestone, 520 U. S. 329, 340, n. 3 (1997).

Petitioners' second constitutional claim, like their statutory one, is subject to plain-error review. "No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before

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