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 resolution, local practitioners should note that the Government itself believes that the 5th Circuit is wrong and that plain-error review is not applicable in this situation. As the Solicitor General explained in his brief at the cert. stage, “The practice of applying plain-error review to substantiveness-reasonableness claims incorrectly extends Fed. R. Crim. P. 51’s contemporaneous-objection requirement. When a defendant argues for a given sentence, the defendant has already put the court on notice of his objection to the length of the length of the sentence and so — in accord with Rule 51(a), which provides that ‘[e]xceptions to rulings’ are unnecessary — need not repeat that objection after the court announces the sentence.” SG Brief at 7.