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February 28, 2005

Can the plain error mess be cleaned up?

This week the Booker plain error mess got even messier.  The Seventh Circuit in Paladino joined the Second Circuit adopting something of a plain error middle-ground (and the Second Circuit reiterated its Crosby approach in Williams), while the First Circuit in Antonakopoulos joined the Eleventh Circuit in taking a tough line on plain error (and the Eleventh Circuit reiterated its Rodriguez approach in Duncan).   Meanwhile, in an effort to undue the most generous plain error standard, the government has sought en banc review of Hughes in the Fourth Circuit and Ameline in the Ninth Circuit (the Ameline briefs are collected here).

In the midst of these developments, I asked here whether the Supreme Court might try to clean up the plain error mess.  The problem is that, even if SCOTUS were to grant cert. on this issue, it might still be a year or more before we would get a definitive decision.  These realities have me pondering whether Congress or the US Sentencing Commission could, on a quicker timeline and in service to the goal of sentencing uniformity, do something now to harmonize plain error decision-making.  Though I doubt either Congress or the USSC will act in this arena, it is fascinating (and quite challenging) to think through whether and how Congress or the USSC could even try to clean up the plain error mess.

February 28, 2005 at 01:37 AM | Permalink

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Comments

I wonder if the characterization of the Seventh Circuit's approach as a middle ground is accurate. In the remand-them-all versus remand-none dichotomy, it is the middle ground, but, in another sense, it is the most extreme. I'm not sure if the judges meant it to be this way, but it is the most defendant friendly approach of all the circuits. If you vacate every sentence, the district court has the power to resentence more harshly. This can also happen in the Second Circuit, as the district court has the power to vacate the sentence. By maintaining appellate jurisdiction throughout the limited remand and keeping control of the vacation-trigger, the Seventh Circuit approach means that only a lesser sentence will be imposed under the limited remand. If the judge hints that he will give a harsher sentence, the Seventh Circuit should not vacate the sentence, because the third plain error factor would not be met. More likely, the defendant will just withdraw his appeal. (Although Paladino annoyingly just says "different" and so, in theory, a judge could keep his cards close to his chest and wait for the sentence to be vacated.) This is the best approach, because whether the defendant would receive a lighter sentence is what the third plain error factor is all about in the sentencing context. If the defendant will get a harsher sentence, his substantial rights will not be affected and the appellate court should affirm his initial, pre-Booker sentence. The Fourth, Ninth, most of Sixth, perhaps the Third, and even the Second, Circuit approaches leaves the door open for the defendant to receive a harsher sentence the second time around.

Posted by: clint | Feb 28, 2005 10:37:26 AM

Nice insights, Clint, though Posner calls the 7th's approach a "middle way." Also, I think some due process doctrines might -- repeat, might -- prevent judges from imposing higher sentences upon a full Booker remand for resentencing.

Posted by: Doug B. | Feb 28, 2005 12:28:09 PM

Posner is correct -- it is the middle way. It is absolutely not the most defendant-friendly approach, speaking as counsel for a defendant in a pipeline case. By retaining appellate jurisdiction, the district court gets a second bite at making the record on appeal reflect the "reasonableness" of the sentence imposed -- which is the appellate standard for review if the sentence is not vacated by the seventh -- without allowing the defendant a similar opportunity to develop the record with respect to the reasonableness of the sentence. Due process? Naaaaah. Why would we want a complete record, especially since we have factors that may now be considered that were impermissible pre-Booker? {sarcasm intended)

The problem with retaining appellate jurisdiction and simply reviewing for "reasonableness" if the district court chooses not to resentence is the same problem that appellate courts have with reviewing for plain error in Booker cases. From the defendant's perspective, the appellate record simply is not adequately developed to make that determination fairly. The only way to ensure a complete record on the reasonableness of the sentence is to resentence pursuant to Booker. Period.

Posted by: Donna Thompson-Schneider | Mar 1, 2005 1:18:39 PM

Book 'em dano!!

Posted by: illacorp | Sep 28, 2005 1:32:26 AM

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