Federal circuit judge laments at lengthy how plain error review now works for guideline errors

A helpful reader made sure I did not miss the concurring opinion authored by Fifth Circuit Judge Oldham this week in US v. Del Carpio Frescas, No. 17-50245 (5th Cir. July 29, 2019) (available here). The Fifth Circuit panel vacated a sentence on plain error review based on a small guideline calculation problem. Judge Oldham seems quitr grumpy that applicable SCOTUS precedent required this reversal, and he authors a 20-page concurrence to explain why. That opinion starts this way:

Today’s result might surprise the uninitiated: Based on a one-point offense-level miscalculation in the advisory Guidelines, the United States must restart its criminal-justice machinery so it can fix a mistake that’s supposedly so “plain” it cannot be ignored but also so subtle that del Carpio ignored it below.  This result is particularly surprising because, not so long ago, the Supreme Court told us that “[m]eeting all four prongs of [plain-error review] is difficult, as it should be.” Puckett v. United States, 556 U.S. 129, 135 (2009).  But this case illustrates it’s no longer that difficult.  So I agree current Supreme Court precedent requires that del Carpio be resentenced.  I write separately to explain how we got here.