September 21, 2007
Second Circuit embraces plain error approach to reasonableness review
The Second Circuit today issues a significant opinion about sentencing review in US v. Villafuerte, No. 06-1292 (2d Cir. Sept. 21, 2007) (available here). Here is the start of the opinion:
This case requires us to determine the consequences of a criminal defendant’s failure to object to a district court’s method of discharging some of its duties under 18 U.S.C. § 3553. Defendant-appellant Jorge Villafuerte appeals from a March 8, 2006 judgment of the district court for the Northern District of New York (Gary L. Sharpe, Judge), arguing that the district court erred by (1) concluding that the sentence recommended by the United States Sentencing Guidelines (“Guidelines”) accounted for the factors under § 3553(a) and (2) failing to state adequately its reasons for imposing the chosen sentence, as required by § 3553(c). We need not decide whether there was any error; because Villafuerte failed to object below, both challenges are subject to plain error analysis, and neither alleged error is plain.
I know that some other circuits have adopted a similar "plain error" approach to reasonableness review, although I also think a few circuit have rejected this legal overlay. In my view, the Second Circuit's approach seems to be in tension with the whole purpose of reasonableness review as a means to help achieve sentencing consistency. If a sentence is unreasonableness, I do not quite understand why a circuit should uphold that sentence simply because the defendant did not sufficiently object to that sentence below.
September 21, 2007 at 12:41 PM | Permalink
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The Sixth Circuit has also adopted plain error review under Rule 52(b)of the Federal Rules of Criminal Procedure when a defendant fails to object at sentencing. There is, however, an issue of whether or not the defendant had the opportunity to object. The defendant may not know, for instance, that he will object to the sentence as being substantively unreasonable until the sentence is handed down. The Sixth Circuit, therefore, in United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), adopted a procedural rule requiring the district judge to ask clearly and specifically if the parties have any further objections after imposing the sentence. If the district judge does not do so, then all of the defendant's objections based on statutory considerations are preserved.
Posted by: | Sep 21, 2007 2:13:45 PM
Don't overread this decision. As you describe it, it's about procedural reasonableness (which is better described as a claim the district court committed an error of law in its sentencing procedures), not substantive reasonableness. That makes a difference.
Posted by: David in NY | Sep 21, 2007 2:29:35 PM
The Tenth Circuit has long-held that objections to procedural reasonableness must be preserved in the district court or else plain error review will apply. Objections based on substantive reasonableness do not need to be preserved below.
Here's a good summary from US v. Torres-Duenas, 461 F.3d 1178 (10th Cir. 2006):
We have held that when the defendant fails to object to the method by which the sentence was determined, such as a claim that the Guidelines were misapplied or that the court did not adequately explain the sentence with reference to the factors set forth in 18 U.S.C. § 3553(a), we review only for plain error. See United States v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir.2006). But when the claim is merely that the sentence is unreasonably long, we do not require the defendant to object in order to preserve the issue. See id; United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th Cir.2005).
Posted by: DEJ | Sep 21, 2007 4:22:16 PM
As far as substantive unreasonableness, an objection below makes little sense:
THE COURT: .....52 months imprisonment.
DEFENDANT: Objection, unreasonable.
THE COURT: Overruled.
But as to procedural issues (e.g., the failure to adequately explain the reasons for the sentence, inadequate consideration of the 3553(a) factors), plain error review should apply. A timely objection in the district court can correct an error, saving everyone a lot of time:
THE COURT: You are correct, counsel, I did neglect to state that the court had fully considered all of the 3553(a) factors and considered the sentencing guidelines advisory.
Even the 9th Circuit reviews for plain error when the sentence is attacked on procedural grounds. US v. Knows His Gun, 438 F.3d 913, 918 (9th Cir. 2006).
Posted by: George | Sep 25, 2007 3:32:33 PM