UNITED STATES of America, Appellee, v. Rodney HARRISON, Appellant, 393 F.3d 805

BENTON, Circuit Judge. Rodney L. Harrison appeals his sentence for two offenses: possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), and criminal forfeiture, 21 U.S.C. § 853. The district court sentenced Harrison to 168 months’ imprisonment, based on the 2003 Sentencing Guidelines in effect at the time of sentencing on March 1, 2004. Harrison argues that he should have been sentenced under the 2002 Guidelines in effect when he committed the crimes on May 7, 2003. Jurisdiction being proper under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, this court affirms.

For the first time on appeal, Harrison raises the argument that retroactive application of the 2003 Guidelines violates the Ex Post Facto Clause. U.S. Const, art. I, § 9, cl. 3. He seeks plain error review. See United States v. Comstock, 154 F.3d 845, 847 (8th Cir.1998); Fed.R.Crim.P. 52(b). The government contends that Harrison waived the ex post facto argument in the district court and cannot raise it in this court. “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ ” United States v.

Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Waiver extinguishes a potential “error” under Rule 52(b). Id. The result is: “The plain error standard only applies when a defendant inadvertently fails to raise an objection in the district court.” United States v. Thompson, 289 F.3d 524, 526 (8th Cir. 2002). The record here shows a waiver, not a forfeiture.

Harrison’s presentence report states, “The 2003 edition of the Guidelines Manual, incorporating amendments effective November, 5, 2003, has been used in assessing this case.” At the sentencing hearing, the judge asks defense counsel, “And Mr. Hall, I don’t find any express objection to the PSR. I take it that there is no objection; is that correct?” Defense counsel answers, “That’s correct, Your Honor.” In his Brief in Support of Motion for Downward Departure, defense counsel says, “Mr.

Harrison submits that the proper sentencing range for this offense should be 168 months (Class V).” The Brief relies on United States v. Senior, 935 F.2d 149 (8th Cir.1991). On the first day of sentencing, February 24, the judge cites and discusses United States v. Senior, 935 F.2d 149, and United States v. Greger, 339 F.3d 666 (8th Cir. 2003). The judge outlines that these cases allow downward departures to both offense level and criminal history in order to compensate for overrepresentation of criminal history due to career offender status.

Later on the first day of sentencing, defense counsel requests a departure from category VI to V in criminal history. Defense counsel emphasizes that the government does not oppose the departure based on the totality of circumstances, and that it is justified based on Senior and Greger. Concluding the first day of the sentencing hearing, the judge notes that he has discretion to depart downward. He questions why he is bound to a one-category criminal history departure instead of departure to the pre-career-offender range. The judge says that this would authorize a sentence of 92 to 115 months.

He asks counsel for insight. The hearing was continued to March 1. On February 26, Harrison filed Defendant’s Amended Motion for Downward Departure and Request for Oral Argument. Three times, the Motion requests departure “downward one category level from category VI to category V.” Reconvening the sentencing hearing, the judge announces that he determined that a downward departure was warranted, but restates the open issue of how far he can depart. The government states that the departure is limited to one level, and that Greger is trumped by the new sentencing guideline.

Defense counsel responds: “Your Honor, I believe that the government is correct that in fact it was probably a response that was — came about in November of 2003.” Defense counsel continues: “And that was my reading of — .” The judge then explicitly raises the ex post facto argument in open court: [Ajnybody ever given any consideration to ex post facto considerations? I mean, before we came in with 4A1.3 we could do all this maneuvering, according to Judge Smith Camp, and I’m going to say in Gregor.

And I might have the case mistaken, but it was that one that says there can be both lateral, that is vertical, and — and horizontal movement. That’s what existed before we came up on — in October of last year with the new 4A1.3. Oh, well. After the government objects that ex post facto analysis does not apply to the sentencing guidelines, the judge says, “Well, it hasn’t been- — it hasn’t been raised. But I toss it out for those that are intellectually hungry.” After citing United States v. Frank, 354 F.3d 910, the judge states, “Government may want to take a look at that.

I — or at least the defense may want to take a look at it sometime.” The judge immediately adds: “Because they do apply the concept of ex post facto to sentencing guidelines, not just statutes.” The Assistant U.S. Attorney concedes: “Well, then I stand corrected on the application of the clause. But we’re not dealing with guideline ranges, I guess is my point. We’re dealing with discretionary motions.” Defense counsel does not respond during this discussion, but later during allocution argues that sentencing at the low end of the guidelines is appropriate.

The judge then sentences Harrison to 168 months, “being the low end of the sentencing guideline.” This case is controlled by two decisions of this court. In Thompson, counsel withdrew all objections and asked for sentencing at the low end of the guideline range. Thompson, 289 F.3d at 526. Finding a waiver, this Circuit held, “On appeal, Thompson cannot complain that the district court gave him exactly what his lawyer asked.” Id. See also United States v.

Nguyen, 46 F.3d 781, 783 (8th Cir.1995) (“A défendant who explicitly and voluntarily exposes himself to a specific sentence may not challenge that punishment on appeal.”); United States v. Fritsch, 891 F.2d 667, 668 (8th Cir.1989) (same); United States v. Pratt, 657 F.2d 218, 219-21 (8th Cir.1981) (double jeopardy argument waived where defendant pleaded guilty with knowledge of the argument and the sentence to which he was exposed). See generally United States v.

Richardson, 238 F.3d 837, 841 (7th Cir.), cert. denied, 532 U.S. 1057, 121 S.Ct. 2206, 149 L.Ed.2d 1035 (2001) (when a judge asks at sentencing whether there is an objection to an enhancement, and the lawyer does not object, the argument is barred from consideration on appeal). In the other controlling decision by this court, the defendant’s attorney, at sentencing, told the judge that the Presentence Investigation Report recommended the correct offense level and criminal history-category, and stated “no objection” to the sentence. United States v. Wilson, 184 F.3d 798, 801 (8th Cir.1999).

On appeal, this court rejected plain error review of Wilson’s argument that the district court violated the Ex Post Facto Clause in applying a later version of the Guidelines. Id. at 800. This court held that Wilson waived the ex post facto argument. Id. at 801. Here, the judge repeatedly identified the issues, and defense counsel took no action other than to request the sentence given. On this record, defense counsel did not inadvertently fail to object. See Thompson, 289 F.3d at 526. For purposes of this appeal, Harrison waived the ex post facto argument.

This waiver extinguishes any potential error under Rule 52(

b) as to Harrison’s sentence. See Olano, 507 U.S. at 733, 113 S.Ct. 1770. The sentence is affirmed. . The Honorable Thomas M. Shanahan, United States District Judge for the District of Nebraska. . The dissent argues that our decision in Wilson conflicts with United States v. Michelsen, 141 F.3d 867 (8th Cir.1998). Michelsen, however, involved a defendant's waiver of the right to appeal an issue that was contested in the district court, while Wilson, Thompson, Nguyen, Fritsch, and Pratt concern claims that were themselves waived in the district court.

Moreover, to the extent our cases on waiver of the right to appeal are relevant here, our more recent en banc decision in United States v. Andis, 333 F.3d 886, 892 (8th Cir.2003) (en banc), holds that a sentence within the statutory range of punishment (as Harrison's surely was) is not an "illegal sentence” for purposes of enforcing an appeal waiver.