Justices of US Supreme Court consider what law governs plain error appeals

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The justices of the U.S. Supreme Court tussled on Wednesday over the issue of whether a plain error sentencing appeal must be decided according to the law in effect at the time of sentencing or at the time of appeal.

The case of Henderson v. U.S. involves an appeal brought by Armarcion D. Henderson, who had pleaded guilty to felony firearm possession charges. The sentencing guidelines range for the crime was 33 to 41 months, but the judge sentenced Henderson to 60 months in order to allow enough time for him to complete the Bureau of Prisons drug program. Henderson didn’t object at the time of sentencing, but later filed a motion to correct the sentence, which was denied.

He appealed, seeking reversal of the sentence under Rule 52(b) of the Federal Rules of Criminal Procedure. While his appeal was pending, the Supreme Court decided Tapia v. U.S., holding that federal law precludes a judge from imposing or lengthening a prison term to promote a criminal defendant’s rehabilitation.

Henderson argued that the ruling in Tapia demonstrated that the judge in his case committed plain error. But the 5th Circuit disagreed, finding that the determination of plain error must be based on the law at the time of sentencing. Since plain error was not clear at the time of sentencing, the court affirmed the sentence.

The Supreme Court granted Henderson’s petition for certiorari.

Questions of efficiency

Patricia A. Gilley, a partner in the Shreveport, La., office of Gilley & Gilley, who has represented Henderson since the trial stage, said at oral arguments that the subset of cases like this is small. Therefore, she argued, allowing a court to consider Supreme Court precedent handed down during a pending appeal would not open the floodgates to plain error claims.

“There are very few cases that would come out of the Supreme Court during the period of time of appeal that would allow for the petitioner to say, ‘Well, now it’s clear,’” Gilley said.

“The time from the district court decision in this case to today is how long?” asked Chief Justice John G. Roberts Jr. “Two years? So in a typical case in which this happens, you’ve got two years of cases, right?”

“Mr. Henderson’s case is unusually long,” Gilley said. “I don’t think that that’s common.”

Justice Samuel A. Alito Jr. asked if one of the purposes of the plain error rule – efficiency – was served “better as applied at the time of trial or at the time of appeal?”

“I think that it very much helps to assess and evaluate the plainness of the error at the time of appeal,” Gilley said.

Justice Ruth Bader Ginsburg wondered why Henderson waited so long to object to the sentence.

“There was a statute that says, ‘Judge, don’t lengthen sentences for purposes of rehabilitation,’” Ginsburg said. “And you didn’t call that statute to the attention of the judge, did you?”

“I did not,” Gilley said, noting that at the time she knew the guidelines were advisory, so she didn’t initially know how to properly object.

“Were you aware of the statute at the time? Ginsburg asked.

“I [was] not, Your Honor,” Gilley said, but added that she filed a motion to reduce the sentence eight days later.

Later, Ginsburg asked: “How many months are left for the defendant’s sentence?”

Gilley said he was scheduled for release in May of 2013.

“He never did get the in-depth treatment program,” she added.

Burdens and incentives

Before Jeffrey B. Wall, assistant to the U.S. solicitor general, could begin his argument on behalf of the government, the justices began peppering him with questions. Ginsburg again focused on the statute in existence before the Tapia ruling came down.

“The statute says to the judge, don’t lengthen the defendant’s sentences for purposes of some cure,” Ginsburg said. “And if the judge was not aware of that statute – and he surely should have been – wasn’t it incumbent on the prosecutor to tell the judge, ‘Judge, sorry, you can’t do that?’”

“I think it cuts actually exactly the opposite way,” Wall said. “There was a long-standing circuit split that the Court resolved in Tapia. Courts reached different conclusions on this.”

“But [the judge] was not aware of the statute,” Ginsburg said.

“It is then exactly the kind of debatable, open, unsettled legal question that our adversarial system counts on parties to raise every day,” Wall replied.

When Wall argued that a ruling for Henderson would incentivize lawyers to avoid objecting to sentences only to lodge plain error challenges later, Justice Elena Kagan doubted his logic.

“I don’t know of a lawyer who would say: ‘I’m not going to make this objection because I’m just going to assume that sometime between now and my direct appeal the law is going to change, and it’s going to change in my favor, and when it changes, I’m going to be able to make this objection,’” Kagan said, echoing an earlier statement by Justice Stephen G. Breyer, who called such a lawyer “a unicorn.”

But Justice Antonin G. Scalia said, unicorns aside, “I think there are a lot of lawyers who will not be as careful about finding all of the issues that they should bring to the court’s attention.”

A ruling for the government would encourage attorneys to raise better objections at the trial level because they’d know the issue “will not be able to be patched up on appeal,” Scalia said.

A ruling is expected later this term.