April 8, 2005
DC Circuit speaks on plain error
The DC Circuit has been the quietest of the bunch post-Booker, but today the circuit jumped into the plain-error fray with its opinion in US v. Coles, No. 03-3113 (DC Cir. Apr. 8, 2005) (available here). Remarkably, the Coles decision deepens the three-way circuit split on plain error, as the DC Circuit has become the third circuit to adopt the "middle" position of "let's ask when in doubt" plain-error standard. Here is the first paragraph of Coles:
This case raises an important issue left open by the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005), concerning the application of the plain-error doctrine to appeals from sentences rendered under the Federal Sentencing Guidelines before the Supreme Court ruled that they are advisory rather than mandatory. In addressing this issue, we align ourselves generally with the decisions of the Second Circuit in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), and the Seventh Circuit in United States v. Paladino, No. 03- 2296, 2005 WL 435430 (7th Cir. Feb. 25, 2005), reh'g en banc denied, id. (7th Cir. Feb. 25, 2005), and most particularly with the approach adopted by the Seventh Circuit. Because the record is insufficient for us to determine with confidence whether the defendant suffered prejudice from the Booker error in this case, we hereby remand the record to the District Court so that it may determine whether it would have imposed a different sentence, materially more favorable to the defendant, if sentencing had taken place under the post-Booker sentencing regime.
April 8, 2005 at 11:46 AM | Permalink
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It's a little odd that the DC Circuit didn't explain why they didn't follow their own "supervening decision doctrine," which dispenses with the need to review only for plain error when the objection wasn't available below. United States v. Washington, 12 F.3d 1128, 1139 (D.C. Cir. 1994). Other circuits have rejected the doctrine entirely, Martinez v. Texas Dept. of Criminal Justice, 300 F.3d 567, 573-74 (5th Cir. 2002), but as far as I can tell it's still good law in the D.C. Circuit.
The Supreme Court's Booker opinion certainly doesn't mandate plain-error review; Breyer simply directs the courts of appeal to "apply ordinary prudential doctrines," one of which is the plain-error rule, 125 S. Ct. 738, 769 (2005), and one of which presumably would be the supervening-decision doctrine.
Posted by: Anon | Apr 8, 2005 6:41:03 PM