Tuesday, June 26th, 2018

Plain Error Under Rosales-Mireles

Though it disgraced itself today, the Supreme Court issued a hopeful opinion last week in Rosales-Mireles v. United States concerning the scope of plain error review for unobjected-to Guidelines miscalculations at sentencing. One of the most significant parts of this opinion is a footnote where the Court confirms that “proof of a plain Guidelines error” will ordinarily be sufficient for a defendant to meet the burden of showing that the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Slip op. at 11 n.3. The opinion, worth reading in its entirety, is available here.

The defendant in Rosales-Mirales was sentenced (for illegal reentry) based on an incorrect Guidelines range resulting from an incorrect calculation of his criminal history score. He was sentenced at the low end of the incorrectly calculated Guidelines range, but squarely in the middle of the correct Guidelines range. The defendant did not object to the error before the District Court, and his appeal was therefore subject to plain error review.

Justice Sotomayor’s majority opinion, to the dissent’s chagrin, is robust in its scope. The Court takes as its premise that unnoticed Guidelines errors are plain and affect substantial rights (thus satisfying the first three prongs of the plain error standard under United States v. Olano). As to Olano‘s fourth prong, the Court concludes that such errors “will in the ordinary case, as here, seriously affect the fairness, integrity, or public reputation of judicial proceedings, and will thus warrant relief.” Id. at 1. In doing so, the Court rejects the Fifth Court’s rule that Olano‘s fourth prong is satisfied only when a plain error would “shock the conscience of the common man.” Slip op. at 5. (Such a standard, the Court explains, inappropriately imports due process language without any doctrinal or statutory foundation for doing so.)

More broadly, however, the Court uses procedural justice literature (and common sense) to articulate a forgiving plain error standard for Guidelines miscalculations. Such miscalculations result from judicial error, rather than trial strategy, and defendants will have little incentive to forego objections to their sentence in the hope of exploiting a lax plain error standard on appeal. See id. at 10, 14. Moreover,  the Court explains, “the possibility of additional jail time . . . warrants serious consideration” when an appellate court decides whether to exercise its discretion to correct a plain error. Id. at 9. This consideration, the Court emphasizes, appropriate because “[i]t is crucial in maintaining public perception of fairness and integrity in the justice system that courts exhibit regard for fundamental rights and respect prisoners ‘as people.'” Id. (quoting Tom R. Tyler, Why People Obey the Law 164 (2006)). Additionally, the Sentencing Commission relies on accurate sentencing data to assess whether revisions to the Guidelines are necessary to better ensure their fairness. Given these broader institutional and systemic considerations. Id. at 10. At the same time, sentencing errors are relatively inexpensive to correct in comparison to errors that require a new trial.

Given these institutional and systemic considerations, the Court explains that “in the ordinary case” appellate courts are expected to correct plain Guidelines errors. Id. at 15 (emphasis added). Practitioners should keep these considerations in my when thinking of ways to advocate for extending Rosales-Mirales‘s holding beyond the Guidelines-error context.


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Categories: plain error, sentencing
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