February 10, 2010
Fifth Circuit panel splits over approach to plain-error review for sentencing errors
Among a number of notable sentencing rulings released today, a Fifth Circuit panel has a split decision that reverses a white-collar offender's sentence due to a guideline calculation error US v. John, No. No. 08-10459 (5th Cir. Feb. 9, 2010) (available here). The extended John opinion is an interesting read for avarious reasons, but the discussion of plain error review in the dissent by Judge Smith is what really caught my attention. Here is part of that dissent:
This circuit in general, and the instant panel majority in particular, have mostly eviscerated the plain error test in cases raising forfeited sentencing error. The result is that instead of being narrow, rare, and exceptional, the granting of plain-error relief in sentencing appeals has become commonplace. At the second prong of the plain-error test, error that this panel majority needs several pages of detailed analysis to explain is deemed “plain” or “obvious.” At the third prong, any increase in a sentence is considered to affect “substantial rights.” And finally at the fourth prong, any error that affects substantial rights is construed not only to affect, but “seriously” to affect, the fairness, integrity, or public reputation of judicial proceedings. By such reasoning, the fourth prong is collapsed into the third, further weakening the test....
The only real unfairness is not to Ms. John but to this district judge and the other district judges in our circuit. “[T]he contemporaneous-objection rule prevents a litigant from ‘sandbagging’ the court -- remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor.” Puckett, 129 S. Ct. at 1429 (citations and internal quotation marks omitted). Today’s ruling, to the contrary, is an encouragement to criminal defendants to refrain from noticing sentencing error in the district court, secure in the knowledge that any forfeited error that arguably lengthens a sentence will be corrected on appeal, resulting in resentencing and a second bite at the apple....
Faced with hundreds of sentencings, raising thousands of issues, a district judge should be able to rely on counsel, as officers of the court and zealous advocates, to call arguable error to the court’s attention. Where that does not occur, the district judges of this circuit should be able to count on this court faithfully to apply the strict plain-error standard to forfeited error. Because that did not happen here, I respectfully dissent.
February 10, 2010 at 03:45 PM | Permalink
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Judge Smith's criticism is incorrect and misguided. He seems to be very upset over something he need not be.
Second prong: He complains the panel needed "several" pages to explain why the error was plain. WRONG. First, the panel's explanation of both the first prong and second prong begins on the second half of page 25 and ends at the bottom of page 28. So, in three and a half pages, the panel explains why this was "error" and why it was "plain." In whole, the discussion is a total of 4 paragraphs. That doesn't seem like an excessive amount of pages to complete such a task. Second, if you look at that explanation, here's how it breaks down: para. 1 describes the rule and the issue; para. 2 talks about one 5th Cir. precedent, what happened in that case, and the holding of that case; para. 3 discusses the facts of this case in light of that precedent; and para. 4 concludes that that one precedent, when applied to this case, shows plain error occurred. What is so excessive about this? If anything, this epitomizes how a "plain error" analysis should occur.
Third prong: Smith complains that "any increase in a sentence is considered to affect 'substantial rights.'" (emphasis on any). First, this is a wrong statement of what the majority panel held. With an incorrect GL range of 97-121 months, John was sentenced to 108 months. The correct GL range was 70-87 months. The majority's 3rd prong analysis, in NO way, is a holding that "ANY" increase will satisfy the prong. Second, and more importantly, even if that was the majority's 3rd prong analysis, it would be correct. The majority would be doing nothing more than following Supreme Court precedent. The Supreme Court has said the third prong of plain error review is, in most cases, a prejudice inquiry. It is similar to harmless error review, with the only difference being who bears the burden of showing prejudice. Aside from the burden, the legal analysis of of harmless error is “equally applicable” in the context of plain error. See e.g., United States v. Small, 423 F.3d 1164, 1190 n.15 (10th Cir. 2005). And because the Supreme Court has held that “any amount of actual jail time” would be sufficient to constitute prejudice, Glover v. United States, 531 U.S. 198, 203 (2001), the majority panel is correct in its 3rd prong analysis.
Fourth prong: Smith complains "the fourth prong is collapsed into the third." Wrong again. The majority states that 4th prong is satisfied because "the sentence imposed is significantly (21 months)outside the [correct] advisory Guidelines range." Significant is the key word. Further, the majority reasoned that "John’s significantly above-Guidelines sentence has been imposed without the accompanying justification," and it is probable a lower will result. This is hardly a collapsing of the two prongs. Under the 3rd, prejudice must be shown; under the 4th, significant prejudice must be shown. The 10th Cir. has employed this exact distinction in order to not collapse the prongs. See US v. Valle-Martinez, 290 F. App'x 169 (10th Cir. 2008) (fourth prong will be satisfied only when “a defendant demonstrates a strong possibility of receiving a significantly lower sentence.”). In fact, in that case, the court held the 3rd prong was likely satisfied but the 4th prong wasn't.
Finally: Concerning Smith's comments about "sandbagging," is there any evidence whatsoever that that is what happened here or that it even happens often? Is there any benefit to not objecting? As a practitioner, I very seriously doubt that many defense counsel are intentionally not raising issues at sentencing that could benefit their client, just so they can "sandbag" and get a "second bite at the apple" on the chance you get a remand. It just doesn't happen at sentencing.
Judge Smith's real concern may be that he doesn't like Defendants getting re-sentenced under correct, but lower, guideline ranges.
Posted by: DEJ | Feb 11, 2010 12:21:44 PM
One more point that bears mentioning.
In the context of SENTENCING (as opposed to trial or pre-trial) errors, there are many persuasive reasons to relax the 4th prong of plain error review. As explained by Judge Newman, “[a]lthough ... plain error standards of Rule 52(b) apply to sentencing errors, ... there is a substantial argument that these standards should have no application to such errors.... At least where a sentencing error involves only an issue of law, as is normally the case, the error should be correctable without regards to the standards of Rule 52(b).” United States v. Gordon, 291 F.3d 181, 199-200 (2d Cir. 2002) (Newman, J., concurring).
One of those reasons (alluded to in my first post) is that the incentive and strategic issue of sandbagging at sentencing is almost non-existent.
Other arguments have been adopted by the Ninth, and D.C. Circuits and a minority of the Tenth Circuit. In effectively articulating why sentencing errors are different from other types of errors, and why the fourth prong of plain error review must be relaxed in such circumstances, the Ninth Circuit has explained:
"It is easy to see why prejudicial sentencing errors undermine the 'fairness, integrity, and public reputation of judicial proceedings': such errors impose a longer sentence than might have been imposed had the court not plainly erred. Defendants . . . may be kept in jail for a number of years on account of a plain error by a court . . .
"Moreover, there is little reason not to correct plain sentencing errors when doing so is so simple a task. In the context of convictions, it is the potential costs of error correction – undoing a jury verdict or an entire trial, or letting a guilty defendant go free – that have led courts on occasion to decline to 'notice' plain errors where the evidence of guilt was overwhelming. In the sentencing context, however, these costs are not present. Reversing a sentence does not require that a defendant be released or retried, but simply allows a district court to exercise properly its authority to impose a legally appropriate sentence.
"Nor does reversing a sentence require a district court to revisit an issue the outcome of which is abundantly clear. Rather, it allows a sentencing court to make, for the first time, a discretionary determination necessary to arrive at an appropriate sentence. Under these circumstances, a failure to exercise our discretion in order to allow a district court to correct an obvious sentencing error that satisfies the three prongs of the plain error test would in itself undermine the 'fairness, integrity, and public reputation of judicial proceedings.'
United States v. Castillo-Casiano, 198 F.3d 787, 792 (9th Cir. 1999), opinion amended on unrelated grounds, 204 F.3d 1257 (9th Cir. 2000).
See also United States v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994) (“the required showing of prejudice should be slightly less exacting [for sentencing] than it is in the context of trial errors.”);
Gonzalez-Huerta, 403 F.3d at 757 (Briscoe, J., partly concurring & partly dissenting, joined by Seymour, Henry, and Lucero, JJ.) (In advocated for a less-stringent approach to the 4th prong when sentencing errors are involved, explaining: “Although we did not quantify what would constitute a ‘significant reduction’ in the length of a sentence, a review of relevant case law suggests that almost any reduction in the amount of actual incarceration is sufficient to meet this definition.”)(citing exclusively non-Tenth Circuit precedent).
Posted by: DEJ | Feb 11, 2010 12:38:42 PM