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February 2, 2005

The 6th Circuit speaks on plain error!

Joining the Fourth Circuit which last week came to a similar conclusion in Hughes (basics here), this morning the Sixth Circuit has held in US v. Oliver, No. 03-2126 (6th Cir. Feb. 2, 2005) (available here), that "the district court plainly erred by applying the federal sentencing guidelines as mandatory rather than advisory and thereby sentencing Oliver beyond the sentencing range which the jury verdict and Oliver's criminal history supported." 

The Oliver opinion has a lot of interesting language about how courts should be sorting through cases post-Booker, and a footnote distinguishing the Supreme Court's "plain error" ruling in US v. Cotton, 535 U.S. 625 (2002), seems especially noteworthy.  These lines in that footnote particularly caught my eye:

Provided that a district court judge metes out a sentence which constitutes a reasonable application of 18 U.S.C. § 3553(a), the sentence may diverge from the applicable guideline range.  Thus, even if we conclude that the evidence is "overwhelming and essentially uncontroverted" we cannot know the length of imprisonment that the district court judge would have imposed pursuant to this evidence following Booker.  We would be usurping the discretionary power granted to the district courts by Booker if we were to assume that the district court would have given Oliver the same sentence post-Booker.

With the Oliver ruling, we now have two unanimous panels of two purportedly "conservative" circuits finding Booker errors to constitute "plain error" (which means they lead to reversal even if the issue was not raised in the district court).   I would expect this may soon become a consensus view in all the circuits (though, especially after the Booker ruling, I now take nothing for granted concerning court rulings in this area).

February 2, 2005 at 10:21 AM | Permalink


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In light of the explicit language used by SCOTUS in Booker regarding application of Booker to cases on appeal, why the necessity for spilling so much ink on finding a reason to first rule on the issue and second to remand to the district court? Application of the so-called "plain error" rule in these cases is inanity and demonstrates how these rules can be so distinguished that for all intents and purposes they become meaningless: nothing more than a pretext for judicial expounding. First, the way the courts apply and the common meaning of the words “plain error” are contradictory. If the Booker “error” was so plain and obvious, why was is that so few jurists saw it, at least prior to Blakely? Instead of engaging in linguistic gymnastics, what not have a very simple rule, to wit: “If a controlling decision modifying, amending or abrogating extant law is rendered after the decision in the lower court becomes final, i.e., no longer open to reconsideration, the appellate court on appeal may consider that issue even though it was not raised in the court below.” Forget the “plain error” rule and playing semantical games to get around it. The suggested rule is fair and comports with reality and the rule that appellate courts apply the law as it exists at the time the appeal is decided, not at the time the lower court rendered its decision. There is no principled reason for requiring counsel any more than lower courts to anticipate a change in controlling law.
As for raising the issue on appeal, the same rationale applies and the appellate court should, in the interests of justice, request supplemental briefing in cases of this nature (fundamental constitutional rights) as soon as it becomes aware of the change in controlling law, whether through a FRAP 28(j) letter or, if otherwise, sua sponte. [One might note that several appellate panels across the country did just this when the Blakely “sea change” (perhaps we should term it “tsunami”) hit. Some circuits even put out notices to please quit submitting 28(j) letters and/or requests to file supplemental briefs.]
Although on the particular facts of this case, it does not appear to be in the interests of judicial efficiency to remand for reconsideration of the sentence, the Oliver panel was correct in its statement that it should not usurp the district court’s “discretion.” Far too frequently appellate courts do, in fact, usurp the discretionary functions of the trial courts, substituting the panel’s “discretion” for that of the trial court. In Oliver it unlikely the district court is going to impose a different sentence. The unenhanced range was 135 to 168 months, the enhanced range 168 to 210 months and the sentence 180 months. It seems obvious that the district court exercised its discretion by picking a number higher than the 168 months (the maximum under the lower range and the minimum under the higher range) but lower than the 210 months it could have imposed. Be that as it may, however, the discretion is vested in the district court and that court, not the court of appeals, should be given the opportunity to exercise it in the first instance.

Posted by: Thomaas J. Yerbich | Feb 2, 2005 12:34:01 PM

That's the first time I've heard the Sixth Circuit called conservative in a while. Maybe in relation to the Ninth, but when the conservative end of the spectrum includes the Fourth, Fifth, and Eleventh, I'd call the Sixth middle-of-the-road at best (but really, on the liberal side). Am I crazy for thinking that?

Posted by: Milbarge | Feb 2, 2005 2:41:06 PM

Because of a few recent additions, Milbarge, I think the of Sixth tilting right, but you are certainly correct that at least three circuits have more claim to the label I used than the Sixth.

Posted by: Doug B. | Feb 2, 2005 5:29:23 PM

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