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February 4, 2005

The 11th Circuit speaks (loudly) on plain error!

As a reward to everyone who stays late on a Friday, we get a big development at the end of a relatively quiet day.  The Eleventh Circuit has concluded in US v. Rodriguez, No. 04-12676 (11th Cir. Feb. 4, 2005) (available here), that the defendant did not make out a claim for plain error based on Booker.  And, unlike the unrealized intra-circuit division in the Sixth Circuit noted here, this time we get to see the circuit conflict clear as day:

We are aware that three other federal courts of appeals have reached results different from our own in regard to whether Booker error is plain error.  We have carefully read their opinions and are unpersuaded by them.

The Eleventh Circuit then takes 12 pages to explain, often with quite bold language, why Hughes from the Fourth Circuit and Oliver from the Sixth Circuit and Crosby from the Second Circuit are all washed up on this issue.  Amazing stuff.

I hope this weekend to comment on plain error and a host of other lurking post-Booker questions that may before long produce circuit splits.  I will close today by just wondering out loud if this issue is "big" enough to prompt cert.  Thoughts from readers?

February 4, 2005 at 05:30 PM | Permalink


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Under the 11th Cir. approach, no Booker error can ever be plain error--because no defendant will ever be able to show, by a preponderance, what the district court would have done (a) under a system it could not have conceived of at the time, (b) based on arguments no counsel could have made at the time.

The upshot of this approach is that no defendant who failed to foresee Booker (which will include nearly all defendants sentenced before Blakely) may obtain relief from his unconstitutionally imposed sentence. This comes very close to contravening the Booker court's instruction (consistent with Griffith v. Kentucky) that the decision is to apply to all cases still pending on direct review.

The Circuit split on this question may lead to S.Ct. review of the question. That review could end up having a greater effect on plain error analysis generally than on Booker particularly. If this aggressively anti-defendant use of the doctrine is what plain error means, it is going to cut back substantially on the rule of Kentucky v. Griffith in criminal cases.

Posted by: Bruce | Feb 4, 2005 6:44:25 PM

It's simply amazing that a court can concede that, freed of the mandatory guidelines, the district judge "might have given Rodriguez a longer sentence, or he might have given a shorter sentence, or he might have given the same sentence" and then, without missing a beat, go on to conclude that the defendant hadn't met his burden of demonstrating that the error was "sufficient to undermine confidence in the outcome."

Blakely and Booker were astonishing and unexpected decisions, which shook the federal criminal justice system to its core. They call for creative judging to protect defendants' sixth-amendment rights, as the Second Circuit did in its novel but even-handed Crosby decision. In contrast, this panel of the Eleventh Circuit chose to recite well-worn, ill-fitting, language to achieve the result it clearly wanted. Given its acknowledgment that neither side could possibly establish on appeal what the district judge would have done if the guidelines hadn't been mandatory, it's hard to conclude that it did anything other than abdicate its responsibility to make sure justice was done.

Had it been loyal to that noble goal, rather than that of preserving harsh sentences, it might have sought guidance from analogous areas of the law. One might have been the harmless-error doctrine that specifically addresses what should result from this type of appellate uncertainty. The Supreme Court has explained that appellate courts must give the benefit of the doubt to defendants when they can't determine whether an error was harmless. As it has explained on many occasions, a "reviewing court should grant relief if it is in 'grave doubt as to the harmlessness' of a constitutional error," O'Neal v. McAnnich, 513 U.S. 432, 445 (1995), further explaining that "[a] judge is in 'grave doubt' when the matter is so evenly balanced that [the judge] feels himself in virtual equipose as to the harmlessness of the error." Id. at 435. If it hadn't been so narrow in its analysis, the Eleventh Circuit might have acknowledged that appellate uncertainty shouldn't prejudice post-Booker defendants, as the Second Circuit wisely concluded.

Instead, this panel brushed aside an opportunity to ensure even-handed justice. If it failed in an extraordinary and easy case like this, how could anyone possibly hope it would succeed in less visible and routine ones? Let's hope another panel will disagree.

As to whether the circuit split is "cert.-worthy," you'll have to ask Justice Ginsburg.

Posted by: Alex E. | Feb 4, 2005 7:17:22 PM

If the Supreme Court wanted all of the cases remanded for resentencing, it was a silly waste of time to discuss the plain error standard at all in Booker. However, in many courts, from time to time, district judges indicated on the record that they might have imposed the same sentence provided by the Guidelines even without them. In those circumstances, a remand is pointless. More generally, the plain error rule is about burden shifting, and harmless error rule shifts that burden to the prosecution, while plain error puts it on the defendant. Because Apprendi started all this, it was not completely unreasonable to anticipate this argument if a defense counsel was paying attention. If they had objected or even asked the district court to place a comment in the record about the unfairness of the applicable range at any point, then they would have won the plain error argument. The fact is that they simply did a poor job coming up with a recommendation or argument that raised this question or issue in the record. At the end of the day, the 11th circuit finaly puts an end to pointly remands without serious potential for a more favorable result.

Posted by: Steve D. | Feb 4, 2005 7:32:45 PM

While I disagree with the 11th Circuit's oblique recognition of the Booker Sixth Amendment right violated in Rodriguez, nevertheless, the 11th Circuit's ruling should be read within the limited scope of its facts, involving a defendant who did not receive the bottom of the guidelines, i.e., the guideline minimum, but instead a sentence above that mandated by the guidelines. The vast majority of defendants receive guideline-minimum sentences and do not fit into Rodriguez's category. In Rodriguez's case, one must concede that it is at least less certain that the district court would have imposed a lower sentence if given the opportunity, when it had the opportunity the first time and chose not to, giving the defendant 109 months rather than the 97-month guideline minimum. But the 11th Circuit's decision is still contrary to its own precedent, at least as to ordinary harmless error review (putting burdens to one side). See United States v. Giltner, 889 F.2d 1004, 1009 (11th Cir. 1989) (“We recognize that the appellant’s sentence–twelve years–was within the statutory limits and the fifteen year maximum permitted by the plea agreement. We also recognize, however, that the appellant’s sentence might have been affected by the district court’s belief that the minimum custody sentence was five years on each conspiracy count. Therefore, we vacate Giltner’s sentences ... and remand the case to the district court for resentencing ... .”). In Rodriguez, as in Giltner, the district court exceeded the mandatory minimum (in Giltner, a statutory minimum, and in Rodriguez, a guideline minimum). That should have been a sufficient showing of effect on the sentence to satisfy the defendant's burden of showing prejudice (a burden placed on the defendant, as to constitutional errors, only for plain-error analysis). An analogy brings the point home: if a mandatory punishment were the loss of one of the defendant's arms, with an option to cut off all of the defendant's limbs, violation of the remedial invalidity of that provision would not be rendered non-harmless simply because the court chose to cut off two limbs and did not self-limit to the minimum punishment. This is because absent the mandatory draconian punishment, there is a sufficiently reasonable probability that the judge would not have been so punitive. The same should have been seen in Rodriguez's case, where a judge faced with no mandatory minimum at would have been reasonably likely to impose a different sentence.

Posted by: Richard K. | Feb 4, 2005 8:04:26 PM


You're right the Breyer majority's plain-error dictum was intended to provide fuel for lower courts to try to block some resentencings but their invitation to see if it might be a useful tool cannot trump the thorough plain-error analysis being conducted by courts that are now actually confronting it.

You fault the lawyer in Rodriguez for failing to "ask[] the district court to place a comment in the record about the unfairness of the applicable range," which I agree might have carried the day on appeal. But, is that a realistic criticism? As I've noted previously, under the mandatory guidelines, defense counsel had little or no reason to educate a judge about the defendant's personal history and characteristics, or to do so comprehensively. Unless it's clear counsel did that adequately here, the judge really wouldn't have had a sufficient record upon which the express such an opinion and, therefore, counsel might have been wise not to ask for it. Assuming the record was not complete on 3553(a) factors that have now become critical, a remand to expand the record is the fair and appropriate thing to do, as the Second Circuit has recognized in Crosby.

The fact that the judge selected a sentence in the middle of the range deserves significant consideration. But, suppose the guidelines range had actually been lower. We don't know if the judge would also have chosen the middle of a lower range or if he would then have felt compelled to sentence at the top of it. It's possible he chose the precise middle of the recommended range simply to make the point that Rodriguez was more culpable than defendants in similar cases. On the other hand, he might have believed that 109 months just happened to be the right sentence after considering everything about this defendant, including his personal history and characteristics. Without an illuminating record on this point, we can't really conclude that a remand would be "pointl[ess] . . . without serious potential for a more favorable result," as you claim.

One the other hand, if defense counsel did a poor job educating the judge about individual factors, which he could permissibly have considered in determining where within the range to sentence, that might be a legitimate basis for not finding plain error. Nevertheless, the massive change in the overall approach to sentencing should, in my opinion, overcome that type of failure. No matter what the judge did or didn't know, or should have known, about this defendant, if his beliefs about the appropriate level of punishment for the overall class of similar defendants would now change, it's almost certain his views on the relative increase appropriate for this particular defendant would change as well. Thus, even without considering anything else, there's a good chance this judge might, repeat might, impose a different sentence now.

For that reason, this defendant deserves a chance to be reassessed in light of the new world order, as do all those for whom you observe "district judges indicated on the record that they might have imposed the same sentence provided by the Guidelines even without them." We simply don't know if those pronouncements would stick after these judges considered additional information about the defendants' histories and characteristics or, if they might feel differently now that they're actually operating in a post-Booker world.

It's inconsistent with any enlightened notion of fair and impartial justice to deny defendants sentenced under an unconstitutional scheme the opportunity to rectify those errors on anything less than the merits. Relying on unrealistic notions that counsel should have made objections that were contrary to unanimous circuit-level authority and which couldn't and wouldn't have changed a judge's analysis by one iota, is a bit too close to legal "gotcha," in my opinion. Let's show judicial courage and wisdom by giving those whose sentences might have been imposed in violation of the sixth amendment the opportunity simply to ask their sentencing judges if that was the case.

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