UNITED STATES of America, Appellee, v. Jorge GUEVARA, Defendant-Appellant

DENYING PETITION FOR REHEARING

In its petition for rehearing, the government argues that pursuant to Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), this Court should have undertaken a “causal, evidence-based determination of whether the alleged error affected substantial rights — i.e., whether the alleged procedural error actually affected the outcome of the proceedings.” Gov’t Brief in Support of Petition, 28 n.*. The government fails to recognize that Apprendi runs somewhat counter to Ned-er. Thus Apprendi itself did not undertake a Neder analysis. Nor did our in banc opinion in United States v. Thomas, 274 F.3d 655 (2d Cir.2001). We conclude that in the circumstances presented in this case as well, Neder does not control. The petition for rehearing is therefore denied.

Judge CALABRESI,

concurring dubitante.

On the one hand, I find it very hard to distinguish Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), and its progeny, including this Court’s opinion in United States v. Jackson, 196 F.3d 383 (2d Cir.1999), from the case before us. On the other hand, as the majority of the panel notes, the Neder arguments made here would also have been relevant in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). All this leaves me puzzled, but not sufficiently to justify a dissent. Accordingly, I join the majority’s order, albeit a mite queasily.