Justices Examine ‘Plain-Error Review' After Sentencing Snafu

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By Alisa Johnson

Jan. 12 — Amid strong reactions from the justices of the U.S. Supreme Court, a defendant Jan. 12 asked that they “tweak” the stringent plain-error standard when a district court has imposed a sentence using the wrong range under the advisory U.S. Sentencing Guidelines, even though the sentence imposed also falls in the correct guidelines range (Molina-Martinez v. United States, U.S., No. 14-8913, argued 1/12/16).

Much of the argument focused on who would end up carrying the burden of showing a sentencing mistake affected a defendant's rights. There was also some discussion of just how “advisory” the sentencing guidelines can be if a mistake is presumed to require reversal.

In the case before the justices, no one realized at sentencing that the pre-sentence report referenced a higher criminal history category than the one actually applicable to the defendant. It was not until defense counsel had prepared a no-merits brief on appeal that the defendant brought the error to counsel's attention.

Defense counsel switched gears and sought resentencing. The government conceded that the error was plain but argued that the error nonetheless couldn't clear the additional requirements of the plain-error review that is applicable when there has been no objection at trial. The U.S. Court of Appeals for the Fifth Circuit agreed with the government.

Focusing on one prong of plain-error review, the circuit court said the defendant failed to show that the erroneously-calculated sentence affected his substantial rights. It pointed out that the two ranges overlapped with the sentence that was imposed, falling at the bottom of the erroneously-calculated range and in the middle of the properly-calculated range. It said that when correct and incorrect ranges overlap and the defendant is sentenced within the overlap, courts don't assume—in the absence of additional evidence—that the sentence affects a defendant's substantial rights.

Here, the circuit court pointed out, the defendant proffered no such additional evidence.

The defendant is asking the Supreme Court to do what the Fifth Circuit refused to do: To presume, for purposes of plain-error review, that the application of the wrong guidelines range affects the defendant's substantial rights.

‘Natural Effect.'

Timothy Crooks, of the Federal Public Defender's Office, Houston, arguing for the defendant, focused on how the guidelines are the touchstone for federal courts at sentencing. Despite the fact that the guidelines are advisory, he said they “remain uniquely central to federal sentencing even where the district court ultimately chooses to sentence outside the guidelines.”

Therefore, Crooks added, “the natural effect of an erroneously high guideline range is to skew a defendant's sentence higher than it would have been under the correct range.”

Justice Samuel A. Alito Jr. wondered if the presumption would apply to any sentence that was within both the original and the correct guidelines range, not just one at the bottom of the erroneously applied incorrect range.

Crooks said that in the absence of any other indication, reviewing courts should infer at least a reasonable probability that the sentence would have been different under the correct range.

Burden Shifting

The justices wondered aloud about presumptions versus assumptions versus burdens of persuasion. Alito asked Crooks if he was saying that the burden of persuasion shifts to the prosecution.

Crooks said that the court's opinion in United States v. Olano, 507 U.S. 725 (U.S. 1993), “supports a conceptualization that it simply gives the defendant an alternative way to satisfy his burden of persuasion, which is done in a generalized rather than a cases-specific way.”

Alito asked about cases in which the sentencing judge has given no explanation for the sentence. Crooks said that in that situation, reviewing courts should say the defendant has shown an effect on his substantial right. Alito characterized that understanding as being that the burden of persuasion is on the prosecution. He added that he didn't think the word “presumption” is absolutely necessary; it's “really viewed more as who bears the risk of nonpersuasion.”

Justice Antonin Scalia wanted to know where the court has done that before. He characterized the language in Olano cited by the defendant as mere dictum and said, “maybe it's wrong.”

‘Anchoring Effect.'

Crooks stressed the anchoring effect the guidelines have as the starting point for all federal sentences. Scalia asked “what good does it do to say that the guidelines are advisory, which is what we have held, if, when you mistake them or when you don't apply them properly, you automatically get a reversal?” Crooks responded that the question before the court has to do with but one of the multiple prongs of plain-error review.

Justice Stephen G. Breyer said nobody knows what the sentencing judge would have done in the absence of the error, and that “common sense suggests ask him.” Breyer pointed out that some circuits have employed a limited remand for purposes of finding out just what the district judge was thinking.

He added that he didn't think this case is about the plain error rule; rather, it's about “what the guidelines are and how they affect a sentence. And once we work that out, the answer will be obvious.” He said he wouldn't disagree with the government about the rule or about Olano, but he would “disagree about what you think the effect of failing to apply the right guideline is in the mine run of cases.”

Chief Justice John G. Roberts Jr. addressed Scott A.C. Meisler, of the Department of Justice, Washington, who argued for the government. Roberts said it doesn't matter if you call it a “presumption,” it's “who bears the burden of at least moving forward, and certainly the burden of proof, if one of these errors is on the record?”

Meisler said the court's cases make it clear that the defendant bears the burden under plain-error review. But Justice Elena Kagan said that even so, the question is whether the defendant has met that burden when there has been a “mistake in the guidelines” and “we know that there's an anchoring effect” of the guidelines which “creates a reasonable probability” that the sentence would have been different.

Meisler rejected what the defense characterized as a “generalized showing.” On the contrary, Meisler said, the review must be conducted on a fact-specific basis.

Breyer didn't seem convinced that the defendant is asking for something that is not fact specific. By way of analogy, he said, “You want to prove that it rained at noon on the 5th of February. Your witness says, I heard pitter-patter on the roof. I looked outside. Water was going by the window. Well, it might have been the window washer, but there is no jury that couldn't find that it was raining. Same thing here. Case after case, this court has said: ‘We assume,' ‘we presume' ” the guidelines influence the sentence. “That's what they meant by the word ‘anchor,'” Breyer said.

He added that “we'd have to overcome about five cases” if “we are going to rebut the common sense notion that of course using the wrong guideline had an effect on the sentence.” He added that “if it's an unusual case, i.e. if it's the window washer, let the government show it was the window washer. But the normal case, pitter-patter means rain, and the normal case is that the judge, when he uses the guidelines, or even when he uses them as a basis and says I'm departing, that that made a difference.”

Justice Ruth Bader Ginsburg added that her intuition was the same: “If you if you apply the wrong guidelines, then there's a reasonable probability that he would have received a lower sentence.”

Justice Anthony M. Kennedy added, “You don't have to use the term ‘presumption.' You can say that this defendant has met his burden of persuasion.”

Meisler said it is the opposite of what usually happens under the substantial rights prong to say that absent the government coming forward with something else, the defendant wins.

Plain-Error Standard

Scalia came back to the fact that the defendant did not object at sentencing: “Surely there ought to be a penalty for that. We don't treat cases where there has been an objection the same as we treat cases where there has not been.”

Crooks responded that plain-error review remains a high hurdle to clear and the incentives for timely objections remain, noting that “it is still far more difficult to secure relief on plain-error review, even with the tweak to the third prong that we're suggesting, than it is to just make the objection in the first place.”

To contact the reporter on this story: Alisa Johnson in Washington at ajohnson@bna.com

To contact the editor responsible for this story: Reilly Larson at rlarson@bna.com

For More Information 
Argument transcript at http://src.bna.com/b0i.