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November 11, 2004

What might come of "plain error" rulings and other affirmances?

The First Circuit though its ruling yesterday in US v. Fraser, 2004 WL 2537410 (1st Cir. Nov. 10, 2004), maintained its status as a leader in affirming convictions over Blakely objections on plain error grounds. Prior discussion of the First Circuit's "plain error" Blakely work can be found here and here and here and here.

The Fraser decision and the First Circuit's "plain error" approach — as well as the steady stream of affirmances over Blakely objections coming from the Fourth and Fifth Circuits (which have, unlike the First, expressly held Blakely inapplicable to the federal system) — has me wondering what will happen to all these Blakely appeals if (when?) the Supreme Court officially declares Blakely applicable to the federal system in Booker and Fanfan. It would seem that, at that point, a Blakely error becomes plain, although waiver/forfeiture claims might still be made in particular cases.  Plus, as detailed in the Fraser case, a few of these affirmances assert — sometimes as a clear holding, sometimes in dicta — that the defendant's Blakely claims would be unavailing even if Blakely applied to the federal system.

Not being a specialist in appellate procedure, I do not know if and how some defendants now losing in the Circuits might be able to get relief after Booker and Fanfan.  (Notably, the Second Circuit has been expressly stating, in every Blakely-related case it is now deciding, that the "mandate will be held pending the Supreme Court's decision" in Booker and Fanfan.  Similarly, the Eighth Circuit is operating under an administrative orders that essentially holds all Blakely cases.)  Needless to say, if Blakely is held applicable to the federal system in Booker and Fanfan, sorting out all these "mid-stream" cases will be a huge task.

November 11, 2004 at 02:13 AM | Permalink


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Tracked on Dec 10, 2004 4:36:12 AM


I too am not an expert on federal appellate procedure, but if the First Circuit is withholding the mandates in these cases, then the court can change its mind. Else there's rehearing, rehearing en banc, motions to recall mandates and, of course, cert. petitions. Can't say whether 2255 habeas petitions would work. But I think that's pretty much the entire list of options.

Posted by: Michael Ausbrook | Nov 11, 2004 10:02:12 AM

Two things, Doug, from a federal appellate lawyer. First, that the error may be "plain" (that is, obvious) after Booker/Fanfan is/are decided does not, by itself, satisfy the "plain error" test for reversal under Fed.R.Crim.P. 52(b). The criteria, as applied to an Apprendi sentencing error, are discussed and applied in United States v Cotton (S.Ct. 2002). In that case, the court upheld admittedly illegal life sentences under the "plain error" rule, because (according to the unanimous Court) there was no reasonable doubt that on the real facts of the case, life was the legally correct sentence (based on quantity of crack under the guidelines).
Second, as for preservation in Circuits which are affirming (like the 4th), every defendant should be filing a cert petition (short and simple) and asking that it be held for disposition in light of Booker and Fanfan (Nos. 04-104 and 04-105).

Posted by: Peter G | Nov 12, 2004 9:30:48 PM

Any thoughts on the nature of plain error analysis given the resolution in Booker? In particular, how should the fourth plain error prong be assessed? It seems that the plain error analysis here will differ from that in the wake of Apprendi (no plain error where evidence was "overwhelming and essentially uncontroverted") - since fact resolution by the jury is not the Court's chosen solution. Also, any thoughts as to whether appellate courts will latch onto a notion that if the district court sentenced defendant in the middle of the Guideline range, there is no plain error on the theory that the sentence was not affected by the mandatory/advisory status of the Guidelines (whereas the sentence might have been so affected if the district court went for a "corner solution" at the limits of the range)? I am a civil appellate attorney.

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