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July 17, 2014

Divided en banc Third Circuit announces new approach to preserving procedural sentencing error claims

Yesterday the Third Circuit issued a relatively short en banc ruling in US v. Flores-Mejia, No. 12-3149 (3d Cir. July 16, 2014) (available here), which reverses its previously-articulated approach to how objections to claimed procedural sentencing error must be preserved.  Here is how the majority opinion, per Judge Roth, gets started:

Jose Luis Flores-Mejia appeals the sentence imposed on him for his conviction of the offense of reentry after deportation. His appeal raises the issue of what a defendant must do in order to preserve a challenge to the procedural reasonableness of a sentence.  At the sentencing hearing,  Flores-Mejia made a mitigation argument, based on his cooperation with the government.  Flores-Mejia contends that his initial presentation of this argument is sufficient, without more, to preserve his claim that the District Court committed procedural error by failing, when it pronounced sentence, to give meaningful consideration to this argument.  The government counters that Flores-Mejia’s failure to object, at a time when the District Court could have promptly addressed it, did not preserve the issue for appeal and leaves his claim subject to plain error review.

We have decided that, to assist the district courts in sentencing, we will develop a new rule which is applicable in those situations in which a party has an objection based upon a procedural error in sentencing but, after that error has become evident, has not stated that objection on the record.  We now hold that in such a situation, when a party wishes to take an appeal based on a procedural error at sentencing — such as the court’s failure to meaningfully consider that party’s arguments or to explain one or more aspects of the sentence imposed — that party must object to the procedural error complained of after sentence is imposed in order to avoid plain error review on appeal. Our panel holding in United States v. Sevilla, 541 F.3d 226 (3d Cir. 2008), differs from our holding today and is superseded. 

A group of five Third Circuit judges signed on to a spirited dissent authored by Judge Greenaway, and here is how it gets started:

In our system of jurisprudence, we examine our principle, consider the facts and the law and make decisions.  The venerable principle of stare decisis requires reexamination not when we come up with a better mouse trap but when there is a principled basis for change.  See Arizona v. Rumsey, 467 U.S. 203, 212 (1984) (“[A]ny departure from the doctrine of stare decisis demands special justification.”); Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 854 (1992) (“The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. . . . At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.”). Indeed, “the very point of stare decisis is to forbid us from revisiting a debate every time there are reasonable arguments to be made on both sides.”  Morrow v. Balaski, 719 F.3d 160, 181 (3d Cir. 2013) (Smith, J., concurring).  

Our Court, in a unanimous precedential opinion, adopted a procedure for district courts to follow at sentencing a scant six years ago.  See United States v. Sevilla, 541 F.3d 226, 230 (3d Cir. 2008).  Now, without intervening Supreme Court precedent and without a majority of our sister courts, we not only reexamine but indeed create a new procedure that flies in the face of Federal Rule of Criminal Procedure 51, with no compulsion or mandate to do so.

In its attempt to promote judicial economy, the majority ignores the plain language of Rule 51, misreads the state of the law of our sister circuits, and invokes a fundamental change to our sentencing procedures that is both unwarranted and difficult to square with the Supreme Court’s post-Booker jurisprudence.  For this reason, I respectfully dissent.

July 17, 2014 at 05:18 PM | Permalink

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