7th Circuit issues plain error standard for Booker

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“The only practical way (and it happens also to be the shortest, the easiest, the quickest, and the surest way) to determine whether the kind of plain error argued in these cases has actually occurred is to ask the district judge.” Hon. Richard A. Posner Seventh Circuit

The Seventh Circuit on Feb. 25 announced its standard for application of the plain-error doctrine to appeals from sentences rendered under the federal sentencing guidelines before the Supreme Court held in Booker v. U.S, 125 S.Ct. 738 (2005), that they are advisory rather than mandatory.

Under the standard, most cases will be remanded to the district court for the limited purpose of giving the sentencing judge the opportunity to state whether he would have imposed a different sentence had the guidelines been merely advisory.

The court consolidated eight appeals, all involving sentences and judgments that had not yet become final before the Supreme Court decided Booker. None of the defendants had raised a Booker issue in the district court.

Had the judgments been final, “the defendants would be out of luck,” the court wrote, “because Booker is not retroactive,” citing McReynolds v. U.S., 2005 WL 237642 (7th Cir. Feb. 2, 2005). Had they preserved the issues in the district court, the claims of error would be reviewed “in the ordinary way.”

Because they did not do so, however, the court concluded that review is for “plain error” only, in a decision by Judge Richard A. Posner. The opinion was circulated to the entire court before issuance, but only two members supported en banc review, and wrote dissents — Judges Kenneth F. Ripple and Michael S. Kanne.

The court also issued a separate decision the same day, by Judge Frank H. Easterbrook, holding that, where the sentencing judge made clear he would have imposed an even longer sentence were it not for the Guidelines, there was no plain error, and the sentence must be affirmed.

Consolidated Cases

Under the plain error standard, an error is plain if it affects the defendant’s “substantial rights” and, in addition, “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

The government argued that, since the sentences were within the sentencing range that Congress had created for the defendants’ conduct, the district judge could give them identical sentences without violating the Sixth Amendment, and therefore, since the defendants cannot prove otherwise, the judges’ errors in thinking themselves bound by the guidelines were not plain error.

Because the cases involve only an unlawful sentence, rather than an unlawful conviction, the government maintained there was no plain error: “if a sentence was legal before Booker, it cannot be plainly erroneous; because the guidelines remain valid, albeit demoted to being merely advisory, a sentence that complies with them would be very unlikely to be reversed.”

The court disagreed, concluding, “unless any of the judges in the cases before us had said in sentencing a defendant pre-Booker that he would have given the same sentence even if the guidelines were merely advisory (which none of the judges did say), it is impossible for a reviewing court to determine — without consulting the sentencing judge (a pregnant qualification, as we are about to see) — whether the judge would have done that.”

The court also rejected the government’s argument that, in any case in which the sentencing judge imposed more than the guideline minimum, this fact shows the judge would not have imposed a lighter sentence had he known the guidelines were only advisory.

The court reasoned, “A conscientious judge — one who took the guidelines seriously whatever his private views — would pick a sentence relative to the guideline range. If he thought the defendant a more serious offender than an offender at the bottom of the range, he would give him a higher sentence even if he thought the entire range too high.”

The court added that, in some cases, it may be confident that the sentencing judge would have given the same sentence even if he knew the guidelines were advisory, stating, “if a judge were to impose a sentence at the statutory maximum and say that if he could he would have imposed an even longer sentence, there would be no basis for thinking that if he had known that the sentencing guidelines are merely advisory he would have given the defendant a lighter sentence.”

Absent such an indication, the court concluded that sentences must be vacated, reasoning, “if as in the cases before us the sentencing judge might well have decided to impose a lighter sentence than dictated by the guidelines had he not thought himself bound by them, his error in having thought himself bound may have precipitated a miscarriage of justice. … To tell a defendant we know your sentence would have been 60 months shorter had the district judge known the guidelines wer
e merely advisory, because he’s told us it would have been — but that is your tough luck and you’ll just have to stew in prison for 60 additional months because of an acknowledged violation of the Constitution — would undermine the fairness, the integrity, and the public repute of the federal judicial process.”

Remedy

Turning to the proper remedy for a possible Booker error, the court held, “The only practical way (and it happens also to be the shortest, the easiest, the quickest, and the surest way) to determine whether the kind of plain error argued in these cases has actually occurred is to ask the district judge. We agree, therefore, with the Second Circuit’s ruling in United States v. Crosby, 2005 WL 240916, at *11 (2d Cir. Feb. 2, 2005), that what an appellate court should do in Booker cases in which it is difficult for us to determine whether the error was prejudicial is, while retaining jurisdiction of the appeal, order a limited remand to permit the sentencing judge to determine whether he would (if required to resentence) reimpose his original sentence. If so, we will affirm the original sentence against a plain-error challenge provided that the sentence is reasonable, the standard of appellate review prescribed by Booker. The proviso is important; the mere reimposition of the original sentence does not insulate it from appellate review under the new standard (cites omitted).”

The court added, “If, on the other hand, the judge states on limited remand that he would have imposed a different sentence had he known the guidelines were merely advisory, we will vacate the original sentence and remand for resentencing. In formulating the statement (whether the judge’s conclusion is that he would, or would not, adhere to the original sentence), ‘the District Court should obtain the views of counsel, at least in writing, but “need not” require the presence of the Defendant, see Fed.R.Crim.P. 43(b)(3). Upon reaching its decision (with or without a hearing) whether to resentence, the District Court should either place on the record a decision not to resentence, with an appropriate explanation,’ or inform this court of its desire to resentence the defendant. (By ‘should’ in the quoted passage we understand ‘must.’) We will then vacate the sentence and, ‘with the Defendant present, [the district court shall] resentence [the defendant] in conformity with the SRA [and] Booker/Fanfan,…including an appropriate explanation, see sec. 3553(c)(cites omitted).’”

Accordingly, the court vacated all the sentences before it save one, in which the sentencing court had imposed a sentence well below the Guideline range, and which was the statutory minimum.

The Dissents

The denial of rehearing en banc produced two dissents.

Judge Ripple wrote that the proper remedy is to vacate all the sentences, and remand to the district court, just as the Supreme Court had done in the Booker case, writing, “Booker requires a simple, direct remedy to those harmed by the unconstitutional procedure of former times. We would best serve justice by implementing the Supreme Court’s mandate quickly and efficiently.”

Ripple reasoned, “The panel decision today offers a superficially pragmatic, but not a principled, basis for adopting its novel approach to plain error analysis.

Particularly troubling, in terms of its longterm impact, is the delegation to the district court of our judicial responsibility to evaluate plain error on an independent basis.

Indeed, even when viewed as a ‘pragmatic’ response to Booker’s mandate, the panel’s hastily constructed procedure falls on its own sword. The panel never tells us what it plans to do with cases in which retirement, disability or death has made impossible consultation with the district judge who imposed the unconstitutional sentence. Even when such consultation is possible, our case tracking computer programs will get quite a workout, and we certainly shall see another New Year come and go before this situation no longer impedes our regular work. … It is indeed difficult to see how the odyssey on which the panel now sends us will do anything other than tie us in knots.”

	Related Links Seventh Circuit Court of Appeals Related Article Case Analysis

Judge Kanne also dissented, concluding “any sentence handed down under a mandatory guideline regime is unconstitutional (emphasis in original).”

Kanne wrote, “In the post-Booker world, sentencing judges have discretion to weigh a multitude of factors that were not ordinarily relevant or appropriate to consider under the previous regime. See, e.g., U.S.S.G. 5H1 (specific offender characteristics including age, family ties and responsibilities, and employment record). These are the very factors that might convince a judge to resentence. The panel’s limited remand leaves open the possibility that these factors might come to light in a hearing conducted by the district court, but there is no guarantee that such a hearing will be held — and if we retain jurisdiction as the panel would have it, it is unclear that a district judge could even compel such a hearing.”

U.S. v. Lee

In the other case decided on Feb. 25, U.S. v. Lee, No. 03-4239, the court affirmed the sentence at issue, finding no constitutional error. Citing the decision in the consolidated cases, the court found that the narrow circumstances in which it could conclude that there was no error, to be present.

The court wrote, &#14
7;The district judge expressed a strong preference to give a higher sentence if he could do so. And the actual sentence was well below the guideline range (which had been properly calculated). It was set, not by a percentage or level-based discount, but by the statutory maximum. Thus we can be confident that none of Lee’s substantial rights was adversely affected by the district judge’s application of pre-Booker law. Plain error has not been established, and the judgment is affirmed.”

Like the consolidated cases, the opinion was circulated to the entire court, but again, only Judges Ripple and Kanne dissented from the denial of rehearing en banc.

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David Ziemer can be reached by email.