Judge Tjoflat speaks out (again) on the 11th Circuit's approach to plain error

Last week, as detailed in this post, the 11th Circuit's Judge Hill wrote separately to assaile his circuit's refusal to consider Booker claims not raised in an initial brief.  Today, in US v. Thompson, No. 04-12218 (11th Cir. Sept. 1, 2005) (available here) it is 11th Circuit Judge Tjoflat's turn to write separately, and he does so to criticize the circuit's approach to Booker plain error (which he has done before, as detailed here, in his dissent from the denial of rehearing en banc of the circuit's key Rodriguez case which defined the court's approach to Booker plain error ).

Judge Tjoflat's concurring opinion in Thompson is fascinating and should be read in full.  Here is a lengthy sample to whet your interest:

The court's opinion illustrates one of many problems with the Rodriguez standard or, as I coin it, the "magic words" approach to plain-error review.  Under Rodriguez, we do not generally reverse a sentence unless the district court has stated on the record that the guideline sentence is too high — and, by implication, unfair and unjust — that it would select a lower sentence if the law allowed it to do so, and that it is in general dissatisfied with the punishment provided for by democratically empowered lawmakers.  That is, we vacate a sentence only where the judge has spoken some combination of these "magic words."....

A district judge who makes such comments may do so in the sincere belief that over time he or she, along with other like-minded judges, will persuade the Sentencing Commission or Congress to revise severe mandatory sentences. The judge may also think he or she is simply giving the defendant or his family a bit of encouragement.  Or the judge may simply hope that the defendant will not hold a lengthy sentence against the judge personally. The least charitable view, however, is that the judge is just shooting the breeze and, in the process, doing the defendant and society a great disservice.

When a judge tells a defendant that his sentence is unjust and unfair, the defendant is inclined to believe him.  The defendant is, therefore, unlikely to accept the justice of his punishment and enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary.  The judge may also unwittingly encourage the defendant to persist in attacking his sentence on direct appeal and collateral review, notwithstanding that its substance and the manner of its imposition are legally correct. After all, why shouldn't the defendant appeal a sentence that even the judge criticized as too severe? Finally, by openly disparaging the defendant's sentence, the judge fosters disrespect for the rule of law....

The Rodriguez rule encourages judges to continue opining on the record as to the fairness of sentences they impose in individual cases.... Supreme Court precedents upholding mandatory minimums based on extra-verdict judicial findings and extra-verdict enhancements based on prior convictions are now thought by some to be in doubt.  Judges who are required to impose what they deem to be unfair or unjust sentences as the result of such laws are encouraged by Rodriguez to state their criticisms on the record.  Moreover, beyond these immediate issues, there will always be a possibility that some unanticipated ruling will, post-sentencing, call into question a sentence on a ground not advanced in the district court, thereby triggering Rodriguez's "magic words" requirement.  Thus, any time a judge is required to impose an "unjust" sentence, he should, according to Rodriguez, tell the defendant all about the injustice being done to him so that the defendant can receive the benefit of any subsequent appellate decisions. Finally, even putting aside Rodriguez's impact on future sentencing hearings, I find it troubling that our decisions applying its standard appear to give past comments of this sort the imprimatur of this court. The logical implication of our cases is that such statements are at least harmless — if not desirable — because we reward the defendant based on their presence in the record.