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March 16, 2005

Hughes is back (and better than ever?) in the Fourth Circuit

The Fourth Circuit, which had me scratching my head in this post when the panel which decided Hughes and established the circuit's plain error standard granted rehearing, has now reissued its Hughes opinion.  The opinion, which is available here, stays true to its original holding (background here), but the court now can explain why it thinks the Eleventh Circuit's approach to plain error in Rodriguez is erroneous.  As one person wrote to me: "This is pretty crazy, it is almost like it was personal."

March 16, 2005 at 06:17 PM | Permalink


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Isn't the Fourth Circuit wrong when it notes that Booker must have preserved his 6th Amendment claim since the Supreme Court didn't review for plain error? I thought Judge Posner lamented the fact that the government had declined to argue plain error despite Booker's forfeiture of the Sixth Amendment issue.

Posted by: Steve | Mar 16, 2005 7:37:31 PM

Yes; surprising Judge Wilkins didn't fix that, after numerous commentators pointed out his error. The gov't "waived" plain error review in Booker in the 7th by failing to brief it. The Solicitor General then (strategically, but wrongly, in hindsight) adhered to that waiver expressly in the Supreme Court.

Posted by: Peter G | Mar 16, 2005 9:47:03 PM

Interesting that Hughes still cites Ameline as support for its position when Ameline was withdrawn last week pending rehearing en banc. I believe the Ninth even went so far in its order to formally admonish the citation of Ameline as precedent in the meantime.

Posted by: adam | Mar 18, 2005 8:13:40 AM

Hughes makes a number of points which warrant consideration. The Rodriguez decision claims that plain error only exists if a defendant will be better off at resentencing if the case is remanded. This is a new twist on plain error analysis. As Hughes states, for plain error analysis, “the proper focus is on what actually happened [in the prior proceeding] as a result of the error, not what might happen in a subsequent proceeding on remand.”
The Rodriguez opinion treated the mandatory character of a sentence as an essential part of whether a Sixth Amendment “constitutional error” occurred. This too was a new twist. As Hughes explains, the error of sentencing a defendant under a mandatory system only exists as a result of the Booker remedy. It is “distinct” from the Sixth Amendment error: it can occur even if there is no Sixth Amendment error. And there’s nothing “constitutional” about it.
Finally, it is true that the Supreme Court’s disposition of the Booker case – affirming the judgment of the Seventh Circuit – does not necessarily enlighten us on the meaning of “plain error, since plain error was not litigated in the Supreme Court. But the Hughes opinion could justifiably point to the Supreme Court’s silence, and state: “That the Supreme Court did not even mention, much less discuss, [the new Rodriguez] twist to its previously settled pattern of assessing Sixth Amendment errors . . . indicates that no such alteration of the prejudice analysis was contemplated by the Court.”

Posted by: Tim | Mar 18, 2005 10:12:33 AM

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