April 9, 2005
10th Circuit speaks (and speaks and speaks) on plain error!
As if the circuits did not give us enough Booker reading this weekend, I have just discovered that on Friday the 10th Circuit produced a book on Booker plain error through its (82-page!) en banc ruling in US v. Gonzalez-Huerta, No. 04-2045 (10th Cir. Apr. 8, 2005) (available here). And just when we all thought all the circuits had settled into the three-way circuit split on plain error, especially with the DC Circuit in Coles jumping on the Crosby/Paladino band-wagon (detailed here), the 10th Circuit spices up the story with Gonzalez-Huerta by affirming the defendant's guideline sentence due to the fourth prong, rather than the third prong, of the plain-error test.
It is impossible to neatly summarize Gonzalez-Huerta, in part because there are a total of six opinions: one for the court, three concurrences, one partial concurrence/partial dissent, and one dissent. The opinion for the court in Gonzalez-Huerta does embrace the "defendant must prove prejudice" for the third prong of the plain-error standard. But, as noted above, the court's affirmance in Gonzalez-Huerta ultimately rests on the fourth prong of plain error because it concludes, based on the facts of the case before it, "that the District Court's mandatory application of the Guidelines was not 'particularly egregious' or a 'miscarriage of justice.'"
Because of all the opinions and their extensive analysis, Gonzalez-Huerta provides the most complete discussion of plain-error issues to date. However, because of all the opinions and their extensive analysis, Gonzalez-Huerta is not a complete model of clarity. Consider, for example, the first paragraph of Judge Ebel's concurring opinion:
I agree with the majority's decision to affirm Gonzalez-Huerta's sentence under the fourth prong of the Olano plain-error test and therefore I join Sections I, IIA, IIB, IID, and III of the majority opinion. However, I disagree with the majority's analysis and conclusion reached under the third prong of the Olano plain-error analysis (Maj. op. sections IIC), and accordingly I do not join those sections of the majority opinion. Regarding the prejudice-prong analysis, I believe that Judge Briscoe got it right, and accordingly, I join Section IV of her concurrence. Regarding the fourth prong of the Olano plain-error analysis, as noted above, I join Section IIE of the majority opinion. I join Part II of Judge Hartz's concurrence. Finally, I add this concurring opinion to offer some additional analysis applicable to the fourth-prong analysis.
April 9, 2005 at 01:58 AM | Permalink
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What is most remarkable about the 10th Circuit's decision in Gonzalez-Huerta is what it doesn't decide. What it doesn't decide is whether the plain error test is met in cases, unlike Gonzalez-Huerta, where there is a Sixth Amendment violation. There was no Sixth Amendment violation in Gonzalez-Huerta because the defendant (convicted of illegal re-entry) received no upward adjustments; therefore there was no unconstitutional judicial factfinding. The majority takes pains to note that this fact (that there was no Sixth Amendment violation) is key to its decision.
So where there IS a Sixth Amendment violation (as there is in 75% of the cases in my appellate federal public defender caseload), is it plain error or not? After Gonzalez-Huerta, we still have no idea. Those of us in the trenches, hoping that the much-anticipated arrival of Gonzalez-Huerta would provide needed guidance as to how most pipeline cases in the 10th Circuit should be resolved, are sorely disappointed. Of course Gonzalez-Huerta itself didn't involve a Sixth Amendment violation, so the court certainly didn't have to resolve the more pressing issue of how plain error analysis works in cases where there is a Sixth Amendment violation. But it still seems odd that the 10th Circuit made such a big deal of Gonzalez-Huerta (ordering initial en banc hearing sua sponte, holding all 10th Circuit appeals with Booker issues pending the issuance of Gonzalez-Huerta, writing multiple concurrences, dissents, etc.) and then left us hanging on the central plain error issue -- whether plain error is present in cases with Sixth Amendment violations. Do we have to wait for another en banc decision to get the answer to that question, or will it just be a matter of which panel is speediest in issuing the first opinion in a "plain error applied to a Sixth Amendment violation" case? If the latter, every such opinion will (or at least should) engender a defense petition for rehearing en banc (at least if the first panel decision out of the gate holds that the plain error test is not met even in cases where there is a Sixth Amendment violation).
Posted by: Jill Wichlens | Apr 9, 2005 8:03:42 AM
Professor: I am jsut watching (or reading as the case may be)and fell upon your blog which I shall catch up on if I have the time.Sincerely, Richard Amberg, a criminal defense attorney specialist for 30 years, primarily in the E.D. Michigan and 6th Circuit.
Posted by: Richard Amberg | Apr 19, 2005 7:22:44 PM