February 23, 2005
More Booker wisdom from the 2d Circuit
Seeking to shed more light on the handling of pipeline cases, the Second Circuit has weighed in again, and again in an opinion by Judge Jon Newman, though US v. Williams, No. 04-2882 (2d Cir. Feb. 23, 2005) (available for download below). In Williams, Judge Newman purports to "amplify our reasons for the form of remand we have used in some pending cases with sentences that are erroneous in light of Booker." Here are some choice quotes:
In short, there is no need to apply the plain error doctrine in the sentencing context with precisely the same procedure that has been used in the context of review of errors occurring at trial, whether civil or criminal. Moreover, we note that the Supreme Court has never applied the Olano formulation of the plain error doctrine to ignore a judge’s sentencing error that affected substantial rights, nor required a court of appeals to do so....
To avoid the deficiencies of either a routine affirmance or a routine remand for resentencing, we ruled in Crosby that we would normally remand for determination by the sentencing judge of whether a materially different sentence would have been imposed. This disposition avoids the risk that leniency or harshness resulting from legal error will remain uncorrected, yet it also avoids what might turn out to be the needless burdens and risks of automatic resentencing.
February 23, 2005 at 07:50 PM | Permalink
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But is the third plain error met if the district court wants to impose a harsher sentence? The Supreme Court tells us that the third is met only when the error affects a defendant's substantial rights? A harsher sentence will not affect those rights. If, for example, there was a Booker error, but the sentence imposed was the statutory minimum, the third plain error factor can never be met. In my opinion, the yo-yoing that this opinion dismisses in footnote 15 is the way to go. Ask the district court if they would give a more lenient sentence. If the answer is yes, the appellate court can then vacate the sentence and remand for resentencing. If the answer is no, then the third factor has not been met and the original sentence should be affirmed. Under this approach, moreover, not all cases need be remanded. If it is absolutely clear that the defendant would not receive a more lenient sentence, the appellate court should just affirm the original sentence.
Posted by: ash | Feb 23, 2005 8:27:37 PM
Judge Newman has a real point here. I would even add that I think that before 1987, the plain error rule was not usually applied to sentencing errors, or it was assumed that all such errors were plain. The only contrary case I ever found (in the Second Circuit at least, and maybe anywhere) was one in which the government was arguably prejudiced by the failure to raise the issue, leading the Court not to reach it on appeal. Otherwise, the court simply addressed the alleged error on the merits.
Judge Newman's position is, moreover, entirely consistent with the purposes of a rule requiring contemporaneous objection. See Wainwright v. Sykes for those purposes. The point of the plain error rule is largely to prevent a windfall to the defendant and reduce the burden of new trials. Neither is a serious consideration in the sentencing circumstance. In these circumstances, however, where prejudice is the only real question, why not just ask the district judge if she would have given a different sentence under Booker? If the district court would have given a lower sentence there is certainly prejudice to the defendant. and if not, there is no prejudice and no plain error. It's that simple.
It is beyond me, as I suggested in an earlier comment, why all the other Courts of Appeals are so eager to spend their precious time reviewing hundreds of cases for plain error when the expedient of a simple limited remand would answer that question with certainty and finality. Judge Newman's solution is both consistent with the purposes of the plain error rule and eminently pragmatic. Others should adopt it.
Posted by: David in NY | Feb 23, 2005 9:58:14 PM
Your website is fantastic. Thank you so much for sharing your research. I am an ex convict who was unjustifiably incarcerated due to the Mandatory Minimums. I am in a never ending quest to have them abolished and justise restores in our judiciary.
Posted by: Mark Lippold | Feb 24, 2005 2:16:22 PM