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November 28, 2012

SCOTUS considering plain error timing (with sentencing spice) in Henderson

The Supreme Court wraps up an light week of oral arguments today by hearing a criminal procedure case that should be of interest to many sentencing practitioners for a number of reasons.  The varied reasons why Henderson v. US is worth watching are terrifically spelled out by Rory Little in this SCOTUSblog argument preview titled "Not-so-plain questions about plain error."  Here are excerpts from a lengthy post that merits a full read:

Federal Rule of Criminal Procedure 52(b) permits federal courts of appeals to consider “plain” errors “even though [they were] not brought to the [trial] court’s attention.”  Is an error in a criminal case “plain” when, by the time the direct appeal is considered, the Supreme Court has clearly ruled that something was error?   Or is the error not “plain” because, at the time the trial court ruled, it was unsettled?  That is the question that the Court will consider at oral argument in Henderson v. United States on Wednesday, November 28.  While the basic points for each side at argument seem clear, and the case involves only the interpretation of a federal rule, rather than a constitutional question, the argument itself may – I stress, may — be more interesting than the question itself portends, for two reasons.  First, there appears to be an undeveloped flaw in the case that makes it a poor Rule 52(b) vehicle, since in fact the petitioner, who was the defendant below, did timely bring the error “to the [trial] court’s attention” eight days after the ruling.  And second, counsel for the petitioner, Patricia Gilley of Shreveport, Louisiana, is making her first appearance before the Court with merits briefing that is somewhat unusual, while the experienced Supreme Court advocate whose name appeared on the cert. petition has apparently dropped out of the case....

Henderson pled guilty to a felony, and his counsel (Ms. Gilley) stressed in sentencing memoranda that Henderson had a longstanding drug problem and could benefit from drug treatment.  The district court obliged; thus, although the recommended federal Sentencing Guidelines range for Henderson was thirty-three to forty-one months, the court sentenced him to sixty months because the best federal drug rehabilitation program requires at least a five-year term for eligibility.  At the moment of sentencing, Henderson’s counsel did not object.  (Eight days later she filed a timely motion to correct the sentence, but the court did not rule for a number of weeks and then denied the motion on the ground that Federal Rule of Criminal Procedure 35 permits correction only within fourteen days.  More on this below.)

By the time of Henderson’s appeal to the Fifth Circuit, the Supreme Court had ruled unanimously, in Tapia v. United States (2011), that federal law “precludes federal sentencing courts from imposing or lengthening a prison term to promote an offender’s rehabilitation.”  This rule (and thus the error in Henderson’s case) was so clear that the Solicitor General declined to defend the contrary position in Tapia.  The panel that reviewed Henderson’s appeal, however, ruled that despite Tapia the error had not been “clear” or “plain” at the time that the district court sentenced him, because the circuits had been split and the Fifth Circuit’s law on the question had been “unsettled.”  (Both the district court that sentenced Henderson and the lawyers in the case appear, however, to have been blissfully unaware of the circuit split or the unsettled state of the law.)   Thus the panel ruled that the error had not been correctable under Rule 35(a), nor was it now “plain” within the meaning of Rule 52(b).  Rehearing en banc was denied by a vote of ten to seven....

On the merits of the Rule 52(b) question, there are two obvious competing interests: the desire to prevent injustice by correcting clear legal errors on appeal; and the desire to encourage contemporaneous objections in the trial court and to not reverse judgments when a district court made a reasonable -- albeit erroneous in hindsight -- ruling.  The former interest supports a “plain by time of appeal” interpretation, while the latter supports a “plain at the time of the ruling” view.  The tension is clear enough that the Court has previously noted and reserved the question, regarding law that is “unsettled” at the time of the trial court ruling, on two prior occasions:  in United States v. Olano  (1993) and Johnson v. United States (1987).

Rule 52(b) is short, and its text does not appear to answer the timing question presented here.  The Rule provides simply that “[a] plain error that affects substantial rights may be considered even though it was not brought to the Court’s attention.”   The federal government, which will be represented at the oral argument by Assistant to the Solicitor General Jeffrey Wall, makes a valiant, but ultimately strained, attempt to argue that the plain meaning of this text, in context, requires a “time of ruling” interpretation.  But if anything, the text itself seems to suggest that an appellate court may consider any error that is “plain,” without regard to when the error becomes “plain.”  We’ll see what the Justices think of the text at oral argument.  The Circuits have split at least five to two on the question (depending on how you count), with the clear, and more recent, majority favoring Henderson’s “time of appeal” position.

UPDATE: The transcript from the oral argument in Henderson is now available at this link.

November 28, 2012 at 09:52 AM | Permalink


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