UNITED STATES of America, Appellee, v. Jorge GUEVARA, Defendant-Appellant, 32 F. App'x 8

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.