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March 16, 2010

Sixth Circuit panel splits over procedural reasonableness and plain error review

The Sixth Circuit has a notable and divided discussion of procedural reasonableness and plain error review today in US v. Wallace, No. 07-2230 (6th Cir. Mar. 16, 2010) (available here). The start of Judge McKeague's partial dissent provides a useful synopsis of the sentencing review issues on which the panel is dividing in Wallace:

I concur in the majority’s conclusion that defendant Barbara Wallace’s conviction must be affirmed. I also concur in the determination that because defendant did not properly preserve her objection in the district court, her present claim that the sentence is procedurally unreasonable is subject to review only for plain error.  I concur in the majority’s formulation of the four-part standard that governs our plain error analysis.  Yet, despite the majority’s considerable efforts, I remain unpersuaded that the sentencing court’s procedural error, in failing to adequately explain its sentencing decision, either affected defendant’s substantial rights or affected the fairness, integrity, or public reputation of the judicial proceedings. Hence, although I am not unsympathetic with Wallace’s request for leniency, it is evident that she has not carried her burden of meeting the third and fourth prerequisites to relief for plain error.  I respectfully dissent, therefore, from the decision vacating the sentence and remanding for re-sentencing.

As many federal practitioners may know, these kinds of procedural review issues have roiled the Sixth Circuit (and other circuits) in recent years.  It will be interesting to see if this case might get reviewed by the full Sixth Circuit, given that the issues in play here have gotten the full court's attention in the past. 

March 16, 2010 at 10:31 AM | Permalink

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