Follow-up SCOTUS filing on plain error

As detailed here, late last week the Solicitor General in Rodriguez v. US, the big plain error decision coming from the Eleventh Circuit, urged the Supreme Court to grant cert on the Booker plain error issue.  Rounding out the (non-)debate over whether SCOTUS should take up this issue, the lawyers representing Rodriguez today filed a cert reply brief in the Supreme Court.  That brief, which can be downloaded below, has this introduction:

The Government acknowledges the need for certiorari in this case, and offers three compelling reasons in support of that conclusion: (1) "There is a clear and deep multi-circuit conflict on the proper analysis of plain Booker error"; (2) the eleven circuits to address the issue "have adopted three different broad approaches, with further variations within each broad category"; and (3) "[s]ome of the differences among the courts of appeals illuminate basic disagreements about the proper approach to plain-error review" that will potentially recur in other contexts.

These critical points advanced by the Government merit elaboration beyond what the Government has said. First, although the circuit split at issue applies principally to cases in which the sentences were imposed before Booker, that category comprises massive numbers of cases; indeed, this Court alone has granted, vacated, and remanded more than 700 cases in light of Booker, almost all of which are likely to present plain-error issues.  Second, allowing vast differences in the treatment of similarly situated defendants based solely on the Circuit in which sentencing occurs is repugnant to the Sentencing Reform Act's central goal of eliminating such disparities.  Third, the divergent court of appeals decisions reflect basic and significant disagreements concerning plain-error analysis that are certain to recur in this and other contexts, including differences over what constitutes a "reasonable probability" of a different result and over whether a court of appeals may delegate the task of assessing that probability to the district court.

Download rodriguez_scotus_reply.pdf