Wrong Range, Silent Record, Means Federal Sentence Affected

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By Alisa Johnson

April 20 — A federal criminal sentence derived from an incorrect sentencing range can, and often will, be sufficient to establish that the error affected the defendant's substantial rights under plain-error review, the U.S. Supreme Court held April 20.

Defense attorney Laura Kelsey Rhodes, of Rockville, Md., said the majority opinion by Justice Anthony M. Kennedy “doles out some interesting commentary” about the significance of the guidelines despite their advisory nature. She predicted that Kennedy's opinion will set up “the next few years of disputes” over federal sentencing proceedings.

Wrong Range

No one realized at Saul Molina-Martinez's sentencing that the pre-sentence report referenced a higher criminal history category than what was actually appropriate. It was not until defense counsel had prepared a no-merits brief on appeal that Molina-Martinez brought the error to counsel's attention.

In the meantime, the district court had imposed a sentence that was at the bottom of the incorrect range and the middle of the correct range.

Plain-error review, which applies to errors that were not preserved at trial, requires a defendant to prove three things:

  • (1)  that the error was not intentionally relinquished or abandoned;
  • (2)  that it was plain in the sense that it is clear or obvious; and
  • (3)  that the error affected his substantial rights, which means demonstrating a reasonable probability that, but for the error, the outcome of the proceeding would have been different.


The circuit court refused to correct the error, reasoning that the defendant could not establish a reasonable probability that but for the error he would have received a different sentence, given that the sentence he received was within the correct range. It said that in such cases the defendant must produce some additional evidence that the error resulted in a higher sentence.

The Supreme Court disagreed and said that the guidelines are the lodestar of federal sentencing. In most, if not all, cases the mere fact of the use of the wrong sentencing range will be enough to show an effect on substantial rights, the court said.

It rejected a categorical requirement of additional evidence and said that such a requirement is unworkable in a case such as this one, in which the district court provided little explanation for the sentence.

No Additional Evidence Required

The court held that “when a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.”

It added that nothing in the text of the plain-error rule, “its rationale, or the Court’s precedents supports a requirement that a defendant seeking appellate review of an unpreserved Guidelines error make some further showing of prejudice beyond the fact that the erroneous, and higher, Guidelines range set the wrong framework for the sentencing proceedings.” It also said “this is so even if the ultimate sentence falls within both the correct and incorrect range.”

Despite their advisory nature, the guidelines establish “the essential framework” for sentencing proceedings by serving as the starting point for any federal sentence, the court said. Absent a government motion, which often requests a downward variance, the district courts impose sentences within the applicable guidelines about 80 percent of the time. It follows, then, that “an error related to the Guidelines can be particularly serious,” the court said.

The court said there may be cases in which, despite application of an erroneous guidelines range, there is no reasonable probability of prejudice. For instance, the district court may have indicated that the sentence imposed was appropriate irrespective of the guidelines range.

But when “the record is silent as to what the district court might have done had it considered the correct Guidelines range, the court’s reliance on an incorrect range in most instances will suffice to show an effect on the defendant’s substantial rights.” It added that the sentences that fall within a guidelines range are those least likely to be explained on the record. In the absence of a detained record, it said, “there is at least a reasonable probability that the District Court would have imposed a different sentence had it known” the actual minimum recommended under the correct range.

The court said it was not requiring the government to prove that every guidelines error was harmless.

Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined in the opinion.

Justice Samuel A. Alito Jr., concurring and joined by Justice Clarence Thomas, wrote separately to say he didn't concur in the majority's speculations as to “how often the reasonable probability test will be satisfied in future cases.”

Alito added, “The Court’s predictions in dicta about how plain-error review will play out are predicated on the view that sentencing judges will continue to rely very heavily on the Guidelines in the future, but that prediction may not turn out to be accurate.” He said that “some may misunderstand those predictions as veiled directives.”

Timothy Crooks, of the Federal Public Defender's Office, Houston, argued for Molina-Martinez. Scott A.C. Meisler, Department of Justice, Washington, argued for the federal government.

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

Full text at http://src.bna.com/ehr.

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