Plain error on plain error in the First Circuit?

I have not spent much time on Booker plain error issues since the Supreme Court denied cert on the issue (background here and here and here) and each circuit settled into one of the three divergent Booker plain error standards.  Nevertheless, a case applying the First Circuit's tough plain error standard merits note because of an interplay between the district and circuit judges in the case.

In US v. Hansen (noted here), a First Circuit panel affirmed a lengthy pre-Booker sentence (of almost 30 years) imposed by District Judge Nancy Gertner after concluding that the defendant was able to show a "reasonable probability" that the sentencing court, in the absence of mandatory guidelines, would have imposed a more favorable sentence.  Obviously troubled by this conclusion, Judge Gertner wrote a three-page letter to the panel in which she explained why she believed "based upon my recollection of the facts, and my review of the record, there was at least a 'reasonable probability' that a more lenient sentence would have been imposed under an advisory guideline regime."  (Judge Gertner's letter is available for download below.)

In response, last week the First Circuit panel that decided Hansen denied a petition for panel rehearing and reaffirmed its ruling affirming the near 30-year sentence that was imposed back in 2003.  Here are snippets of the panel's explanation for its action (with citations omitted):

The court has considered the argument on page 4 of the petition that this court should consider a letter from the district judge written after the panel opinion issued.  The letter does not concern information which was not produced because the guidelines were mandatory at the time. Further, it contains materials not transcribed and not in the record.  There are very strong interests in the law in both finality and in prohibiting review based on materials not in the record.  These interests alone could preclude consideration of letters from district courts containing non-record material and commentary.  Whether in the interests of justice or to prevent a miscarriage of justice we might ever consider and be persuaded by such a letter is a matter we need not decide today.  That is not this case.  The record simply presents a different picture than does the letter, and the record prevails.  The petition for panel rehearing is denied.

Among the interest aspects of this case is how the First Circuit panel places an interest in finality above an interest in sentencing uniformity.  In six other circuits applying a less rigorous plain error, defendant Hansen would have clearly been resentenced under Booker, and its quite possible that even some other circuit applying the tougher plain error standard would have granted Hansen resentencing on this record.  But now, interestingly, sentencing finality becomes more important than sentencing uniformity.

Download gertner_plain_error_letter_to_1st_circuit.rtf