Today the Supreme Court granted cert. in Holguin-Hernandez v. United States, S. Ct. No. 18-7739, to resolve the earth-shattering question of whether plain-error review applies to an appellate claim of substantive unreasonableness (i.e., “The sentence is too damn long!”) when defense counsel did not object to the sentence’s unreasonableness at sentencing. The case comes out of the 5th Circuit, the only Circuit to apply plain-error review in this situation. Eight Circuits have held that a post-sentence objection is not required to invoke regular ol’ “substantive reasonableness” review (i.e., abuse of discretion review) on appeal. The Second Circuit has dodged this question, concluding every time that it need not resolve the issue because the challenged sentence is proper even under ordinary reasonableness review. See, e.g., United States v. Nesbitt, 757 F. App’x 13, 14 (2d Cir. Nov. 26, 2018).
As we breathlessly await The Nine’s …