October 24, 2007
Plain error review adopted by Fifth Circuit to affirm large upward variance
I suppose I should not be amazed at the lengths circuit courts will go to reject a defendant's sentencing arguments on appeal. But still, I am amazed by the "plain error" approach to reasonableness review adopted by the Fifth Circuit in US v. Peltier, No. 05-30440 (5th Cir. Oct. 23, 2007) (available here). Here are a few of the factual particulars of a ruling that seems wrong on so many levels:
Peltier pleaded guilty to one count of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). While executing a warrant to search for illegal narcotics in Peltier’s residence, agents found cocaine residue, large amounts of cash, and an old, rusty .12 gauge shotgun stashed in an outdoor shed.
Peltier had felony convictions for cocaine distribution, simple burglary, and second degree battery. He admitted that he knew those felonies prohibited him from possessing the firearm, but he kept it for personal protection.
Peltier had a base offense level of 20, subject to a three-point reduction for acceptance of responsibility. He also had a criminal history category of V, based on five prior convictions — the three felony convictions and two misdemeanor drunk driving convictions. This resulted in a guidelines range of 46 to 57 months.
Peltier urged the district court to consider deviating below the guidelines range, and he suggested that he would benefit from a halfway house. The court, however, explained at the sentencing hearing that the guideline range did "not adequately address the very true and real concerns this Court has about Mr. Peltier [and] the policies and the factors reflected in 18 U.S.C. § 3553(a)." Specifically, the court noted Peltier's long criminal history, his violence and anger problems, the dangers posed by his drunk driving, and his addiction to drugs....
The court sentenced Peltier to 120 months, which is the statutory maximum penalty and more than twice the maximum under the advisory guideline range.... The court recommended that Peltier be placed in a facility with the most extensive drug treatment program. Peltier did not object to the sentence.
Then comes the Fifth Circuits legal analysis, which has to be read in full to appreciate all its glory. But the essence of the ruling can be distilled down to these few sentences:
Because Peltier did not object, we must determine the proper standard of review. Ordinarily we review non-guideline sentences for "unreasonableness" and "apply an abuse of discretion standard of review to the reasonableness inquiry." Where the defendant fails to preserve an error, however, we generally apply a plain error standard, which requires considerable deference to the district court and erects a more substantial hurdle to reversal of a sentence than does the reasonableness standard....
Although the district court deviated strikingly far above the guidelines range, we cannot conclude that any insufficient weight given to the guidelines constitutes plain error.
I think I need another post to explain in detail why Peltier seems so wrong. That post will come shortly.
October 24, 2007 at 10:18 AM | Permalink
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Isn't it enough to say that Booker told the circuits what standard of review to apply, and that "plain error" was not it?
Posted by: M. | Oct 24, 2007 10:30:31 AM
Well, and also, I don't know what the CA5 means by "Peltier did not object to the sentence." Was he supposed to say "I'd prefer not to go to prison quite that long"? In the post-Booker world of reasonableness review, I fail to see how circuits can require defendants to make a generalized objection to preserve a reasonableness challenge. How can you meaningfully require someone to preserve an argument under a standard that is so inherently squishy?
Posted by: M. | Oct 24, 2007 10:41:14 AM
Exactly what objection was he to make? He already argued for a sentence much lower than he received. Is he supposed to object that the district court sentence is unreasonable? 'cause, ya' know, I heard that only applies to appellate review.
Posted by: JDB | Oct 24, 2007 10:49:17 AM
To echo JDB's comment, this decision makes no sense. Are defendants to now argue, after a district court admits evidence over defense argument, that the district court has "abused its discretion" in order to preserve error?
Posted by: Doug | Oct 24, 2007 10:59:42 AM
In the Tenth Circuit, yes, a defendant is expected to object again, and again, and again, so that the district court has umpteen chances to "correct" any mistake. The Tenth will find waiver or plain error every chance it gets to avoid addressing a defendant's sentencing arguments.
Posted by: defense attorney | Oct 24, 2007 11:16:52 AM
defense attorney, what is a proper objection in the 10th Circuit?
Here's a hypo for you. Suppose the guideline range is 10-12 months. The defendant argues he should get 5 months. The Government says 12 months. The sentencing judge, after hearing both sides, gives the defendant 10 months. What is the defendant suppose to say? Your honor, that's unreasonable because, as I said before, a sentence of 5 months is a sentence that is not greater than necessary to meet the 3553(a) factors? Or can the defendant say, judge that's unreasonable? I don't understand how you object or what your objection is supposed to be doing.
Posted by: Doug | Oct 24, 2007 11:29:32 AM
I still find it interesting, that the fifth circuit, along with the rest of the appelate courts, continue to find any reasons to uphold above the guidelines sentences, and overturn and under the guidelines sentence.
Posted by: EJ | Oct 24, 2007 11:58:04 AM
Whether the Tenth Cir. would review this case for plain error depends on the type of error complained of. The Tenth requires an objection to preserve procedural reasonableness only (i.e. the method used to reach the sentence). Substantive reasonableness (i.e. "this sentence is too long") does not need to be preserved below. (However, note that in relation to substantive reasonableness, the Tenth Cir. within the last month has found invited/waived error).
According to the opinion, "Peltier argues that the district court gave insufficient weight to the applicable guidelines range and to the need to avoid unwarranted disparity in sentencing." This could be interpreted as both procedural and substantive.
If it is procedural, the Circuit would have expected the attorney (even after sentence was pronounced (which is a ridiculous requirement, IMO)) to say: "Your honor, I object because, the method by which you reach your sentence gives insufficient weight to the guidelines and the need to avoid unwarranted disparity in sentencing."
Just one of the many problems to this is that the line between procedural and substantive is incredibly blurred (as this case demonstrates). There is no discussion of this distinction by the 5th Cir., and in footnote 5 the panel cite a 10th Cir. opinion which also does not mention the distinction (even though almost all other 10th Cir. cases do).
Posted by: DEJ | Oct 24, 2007 12:32:54 PM
The Fifth Circuit's approach contravenes Fed. R. Crim. P. 51. That Rule, which has been held to apply at sentencing as well as at trial, makes "exceptions" unnecessary in federal court. A party need only request a particular ruling and state the grounds; if the court denies the request, the issue is preserved. The party need not "object" after the unfavorable ruling.
Posted by: Federal Defender | Oct 24, 2007 12:33:30 PM
Shouldn't Fed.R.Cr.P. 51(b) control?
It provides: "A party may preserve a claim of error by informing the court--when the court ruling or order is made or sought--of the action the party wishes the court to take, or the party's objection to the court's action and the grounds for that objection."
Posted by: AFPD | Oct 24, 2007 12:35:49 PM
FD and others are correct. The Fifth seems to be engaging in some strange Booker activism. But the 5th was never really one to follow the law, anyway.
Posted by: S.cotus | Oct 24, 2007 12:45:06 PM
The Eleventh long ago adopted a particular script that District Courts have to do after announcing the sentence - they have to ask whether there is any objection. US v. Jones, 899 F2d 1097 (11th Cir. 1990). The notion is that, by making an objection at that time, you put the District Court on notice that it ought to lay out as much reasoning as it can, in order to justify the disputed aspect of the sentencing rationale. It is sometimes pretty harsh, but not completely outrageous I think, to hold that if somebody fails to speak up at that time, then they have failed to preserve the objection and can get only "plain error" review. Maybe the Fifth has said the same thing?
Posted by: Sam Heldman | Oct 24, 2007 12:53:25 PM
Even if a court asks if there is any objection after announcing the sentence, the requirement to object in this context is fairly pointless.
What was the defense attorney supposed to say: "I wrote a sentencing memo, I've orally argued, and I've objected to the PSR. But I now really, really feel like you have given insufficient weight to the Guidelines, and therefore object again." What is the practical usefulness of such an objection? Is the court going to then say: "Oh yeah, you're right. Even though I didn't agree with your memo, or your oral arguments, or your PSR objections, I'll now give a lower sentence just because of that last objection."
It just doesn't make any sense (nor, as other posters have pointed out, does Rule 51 require it).
Posted by: DEJ | Oct 24, 2007 1:16:50 PM
For the 2L reading this thread because she's looking for a note topic, here's CA7's take on the issue:
"To insist that defendants object at sentencing to preserve appellate review for reasonableness would create a trap for unwary defendants and saddle busy district courts with the burden of sitting through an objection-probably formulaic-in every criminal case." U.S. v. Castro-Juarez, 425 F.3d 430 (7th Cir. 2005).
Posted by: helpful | Oct 24, 2007 1:46:01 PM
Peltier cites several cases from other circuits in support of its conclusion that a plain error standard of review applies. (See Footnote 5). Had Judge Smith (or anyone else on the panel or any of their law clerks) read those cases, they would have learned that the majority of those courts distinguish between perserving objections to the procedural reasonablenes of a sentence versus its substantive reasonableness (the exception here is the Third Circuit which did not discuss this distinction). Those courts held that a plain error standard of review applies when the defendant fails to object at the time of sentencing about some perceived error in the district court's sentencing procedures (e.g., taking into consideration some of the Section 3553(a) factors). But those courts still apply Booker's reasonablness standard in reviewing whether the sentence is substantively reasonable. Here, Peltier was obviously appealing on the grounds that his sentence was substantively unreasonable. Thus, to apply a plain error stanard of review in this type of appeal was plainly erroneous.
Posted by: Alex | Oct 24, 2007 7:10:36 PM
Alex, failing to take proper account of 3553(a) factors is a substantive complaint, not a procedural one.
Posted by: | Oct 24, 2007 8:44:55 PM
anonymous..I recommend you read the cases.
Posted by: Alex | Oct 24, 2007 9:00:04 PM
Alex, I did (although before I read them before I read your post and commented). I'll look at them again tomorrow.
Posted by: | Oct 24, 2007 10:03:37 PM
Alex, the defendants in those cases are making the same argument as Peltier did here.
Posted by: | Oct 25, 2007 11:13:52 AM
Annonymous, you need to carefully read the what Peltier cited to justify application of a plain error review. The defendants in those other cases were contesting both procedural infirmities in the sentencing process, as well as the overall reasonableness of their sentences
Posted by: Alex | Oct 25, 2007 11:28:27 AM
anonymous -- this is from the 10th circuit case cited by Traxler (which was the 10th cir case cited by Peltier) to support its conclusion that plain error review applies to both the substantive and procedural aspects of a defendant's sentence when the defendant does not allegedly "preserve" the(se) error(s):
"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). Thus, we do not review for plain error." United States v. Torres-Duenas, 461 F.3d 1178, 1182-83 (10th Cir. 2006).
It is clear that the 10th Cir. differentiates between the procedural and substantive reasonableness of a sentence. To save time, I am not going to cut and paste snippets from the other cases, but this is a nice representative example.
Posted by: Alex | Oct 25, 2007 11:36:21 AM
Alex, that quote is not in Traxler.
Posted by: | Oct 25, 2007 12:36:04 PM
Nevermind. I found it in another opinion. I see what you're saying. Sorry for being dense.
Posted by: | Oct 25, 2007 12:52:32 PM
Another interesting question is what standard of review applies when a defendant requests a below-guideline sentence under Booker/3553(a), but does not object at sentencing to the district court's application of the guidelines as if they were still mandatory and its failure to consider the other 3553(a) factors. This issue illustrates the fuzziness of the substantive/procedural distinction. Under Rule 51, I believe---and recently argued to the Tenth Circuit---that plain error review is inappropriate under these circumstances.
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