High Court Addresses Reality Of Modern Criminal Sentencing by Taylor Crabtree
Ellis & Winters
This article was originally published on June 21, 2018 on Law360 and can be found here.
Rosales-Mireles v. United States – The Guidelines Error Presumption in Plain Error Review
On Monday, June 18th, the Supreme Court issued its opinion in Rosales-Mireles v. United States. Read together with the Court’s 2016 decision in United States v. Molina-Martinez, this opinion establishes a presumption that a defendant is entitled to resentencing whenever the district court makes a clear error in calculating a defendant’s United States Sentencing Guidelines range, even if the error was raised for the first time on appeal.
Rosales-Mireles and Molina-Martinez both address the application of the plain error doctrine to cases where the defendant was sentenced based on an erroneously high Guidelines range. When a defendant fails to object to an error before the trial court, Federal Rule of Criminal Procedure Rule 52(b) provides that the court of appeals may correct the error if (1) there was an error, (2) that error was plain, and (3) the error affected substantial rights.[i] To show that an error affected substantial rights, the defendant must generally show that the error “affected the outcome of the district court proceedings.”[ii] In what has become known as the fourth prong of the plain error test, the Supreme Court has explained that appellate courts should exercise the discretion afforded by Rule 52(b) to correct plain errors when failure to do so would “seriously affect the fairness, integrity or public reputation of judicial proceedings.”[iii]
In United States v. Molina-Martinez, the Court held that if a defendant has been sentenced pursuant to an erroneously high Guidelines range, the Guidelines calculation error alone is ordinarily sufficient to show that the error affected his substantial rights—even if the sentence he ultimately received fell within the corrected Guidelines range.[iv] The Guidelines range serves as the starting point for federal sentencing. And the Court recognized the powerful anchoring effect the Guidelines range has on the judge considering the defendant’s sentence—in the usual case, the selected Guidelines range will affect the sentence.
Rosales-Mireles presents the logical follow-up question: If Guidelines errors generally affect substantial rights, do they also “seriously affect the fairness, integrity or public reputation of judicial proceedings” if they go uncorrected? The Supreme Court held that such errors “ordinarily” will warrant relief under the fourth prong.
The probation officer who prepared the presentence report (PSR) for Mr. Rosales-Mireles mistakenly double-counted one of his convictions resulting in a Guidelines range of 77–96 months. The correct Guidelines range without the error would have been 70–87 months. Neither the court nor the parties noticed the error, and Mr. Rosales-Mireles was sentenced to 78 months—one month above the low end of the erroneous range. When defense counsel raised the issue on appeal, the Fifth Circuit agreed that Mr. Rosales-Mireles had met the first three prongs of the plain error standard.[v] There was error; that error was plain; and the error increased the Guidelines range and thus affected Mr. Rosales-Mireles’s substantial rights.[vi] But, the Fifth Circuit declined to grant relief under the fourth prong because the sentence imposed was within the corrected Guidelines range.
The Fifth Circuit applied an odd mashup of language cobbled together out of substantive due process precedent. The court declined to correct the error because it did not “shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.”[vii]
The Supreme Court reversed. The Court began by flatly rejecting the Fifth Circuit’s approach as overly restrictive and out of step with the Court’s precedent. The Court announced its own rule: a plain Guidelines error will “ordinarily” warrant relief under Rule 52(b) because the error will undermine confidence in the judicial proceedings if left uncorrected.
The Court emphasized two features that make Guidelines errors unique. First, the district court often plays a direct role in the creation of Guidelines errors. For example, in this case, the probation office, acting as an arm of the court, made the double-counting error in the original PSR. And second, Guidelines errors are much easier to correct than trial errors. A resentencing generally takes less than a day and requires the attendance of only the defendant, counsel, and court personnel. The public would rightly look less favorably on the judiciary if it failed to correct its own mistakes especially where the cost of error correction is so low.
Justice Thomas’s dissented joined by Justice Alito. Where Justice Sotomayor’s opinion emphasizes procedural justice and error correction, Justice Thomas emphasizes keeping defense counsel “on his toes.”[viii]
Justice Thomas concluded with a charge that is often leveled in response to any rule that allows courts of appeals to correct trial court errors—that the rule will encourage sandbagging. But as the majority points out, this retort rings hollow. It is hard to believe that defense counsel would engage in this sort of tactic in contravention of his or her ethical obligations for so speculative a remedy. The court of appeals could always determine that the error was not plain. And even if the case were remanded, there is nothing to stop the district court from adhering to the original sentence if that is the sentence it thought appropriate.
At bottom, Justice Thomas’s dissent reveals that he has yet to accept the holding of Molina-Martinez. To him, defendants like Mr. Rosales-Mireles have not shown that the error had any effect on their sentence. The 7-2 majority makes clear that this view is not likely to make a comeback anytime soon.
After Rosales-Mireles and Molina-Martinez, a defendant who can show that his sentence was based on a plainly erroneous Guidelines calculation is presumptively eligible for relief. That is as it should be given the consequences of the error and the low costs of correction. And it’s how Congress originally designed the system. 18 U.S.C. § 3742(f)(1) provides that “[i]f the court of appeals determines that (1) the sentence was . . . imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings . . . .” If there was a Guidelines error, the case “shall” be remanded—no room for the discretion afforded by Olano’s fourth prong, and arguably no room for the plain error rule at all. The Court essentially adopts this approach for plain errors but does so without mentioning this statutory history. By omitting any reference to the statute, the Court was able to avoid answering the difficult question of just how far United States v. Booker, went in striking down other aspects of the mandatory Guidelines regime. As counsel admitted at oral argument, whether section 3742(f)(1) survived Booker “remains an open question.”[ix]
It remains to be seen just how broadly the majority’s rule is applied. Justice Sotomayor pays lip service to the Court’s prior admonition that the fourth prong “requires ‘a case-specific and fact-intensive’ inquiry.”[x] And the opinion recognizes that “[t]here may be instances where countervailing factors satisfy the court of appeals that the fairness, integrity, and public reputation of the proceedings will be preserved absent correction.” But the opinion provides no examples of what those considerations might be. Many courts may apply this as a categorical rule.
Rosales-Mireles represents a substantive win for criminal defendants and recognizes the practical reality of modern criminal sentencing. We know that the Guidelines range plays a significant role in determining criminal sentences. Where the sentence is based on a clear error, and that error can easily be corrected, the courts of appeal should do so. “[W]hat reasonable citizen wouldn’t bear a rightly diminished view of the judicial process and its integrity if courts refused to correct obvious errors of their own devise that threaten to require individuals to linger longer in federal prison than the law demands?”[xi]
[i] United States v. Olano, 507 U.S. 725, 732—34 (1993).
[ii] Id. at 734.
[iii] Id. at 735–36.
[iv] Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016).
[v] United States v. Rosales-Mireles, 850 F.3d 246, 249 (5th Cir. 2017).
[vi] See id. (citing Molina–Martinez, 136 S.Ct. at 1345).
[vii] See id. at 250 (quoting United States v. Segura, 747 F.3d 323, 331 (5th Cir. 2014)).
[viii] Dissent at 2.
[ix] Tr. at 40, 45.
[x] Slip Op. at 11 (quoting Puckett v. United States, 556 U. S. 129, 142 (2009)).
[xi] Slip Op. at 10 (quoting United States v. Sabillon-Umana, 772 F. 3d 1328, 1333-—1334 (10th Cir. 2014) (Gorsuch, J.)).
About The Author
Taylor Crabtree is a trial and appellate lawyer focusing on complex commercial litigation, antitrust, and criminal defense