Plain Error Case Analysis

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In adopting the “limited remand” approach to plain error, the Seventh Circuit takes the middle ground in what has become a three-way division among the Circuits.

The Second Circuit is largely in accord with the Seventh Circuit. U.S. v. Crosby, 2005 WL 240916 (2d Cir. Feb. 2, 2005).

The court in Lee listed only three instances in which there would be no limited remand: (1) the sentencing court imposed a mandatory minimum; (2) the sentencing judge stated on the record that he would have imposed a higher sentence if he could have; and (3) the court granted an upward departure from a properly calculated range.

Discussing the third circumstance, the court wrote, ‘Upward departure is just a special case of the first circumstance: By moving up, the judge evinces not only a belief that discretion exists but also a disposition to exercise it adversely to the accused. Such a judge, knowing that Booker affords yet more latitude, might impose a sentence higher still; knowledge that freedom has increased would not induce the judge to reduce the sentence.”

The Eleventh Circuit has adopted the most restrictive approach, concluding that, because, in most cases, it cannot be determined what the district court would have done had he known the guidelines were mandatory, therefore, the defendant cannot establish plain error. U.S. v. Rodriguez, 2005 WL 272952 (11th Cir. Feb 4., 2005).

However, the defendant in Rodriguez has already petitioned the U.S. Supreme Court for review, and the petition can be accessed at this link (PDF).

At the opposite end, the Fourth, Sixth and Ninth circuits have concluded that all sentences must be vacated, to allow the judges to exercise discretion. U.S. v. Hughes, 396 F.3d 374 (4th Cir. 2005); U.S. v. Ameline, No. 02-30326, 2005 WL 350811 (9th Cir. Feb. 10, 2005); U.S. v. Milan, No. 02-6245, 2005 WL 309934 (6th Cir. Feb. 10, 2005).

Given the split, and the importance of the issue, it seems certain that the Supreme Court will consider the issue, and do so on an expedited basis, just as it did in Booker.

A question for defense attorneys in the interim is what to include in briefs to the sentencing courts. Specifically, must such briefs be limited to the record presented at the sentencing, or not.

	Related Links Seventh Circuit Court of Appeals Related Article 7th Circuit issues plain error standard for Booker

Arguably, a defense attorney can argue in such a brief that, had it been known the guidelines were only advisory, the attorney would have presented different evidence that mandatory Guidelines would consider improper. On this issue, the court’s opinion is silent. Until told otherwise, attorneys should assume that they can, and argue that, but for the assumption that the guidelines were mandatory, a plethora of mitigating evidence would have been presented.

As Judge Kanne wrote in his dissent, “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.”

It would be wise to get those characteristics before the sentencing judge at the soonest opportunity, and not wait until there is a full sentencing hearing, for such a time may never arrive.

– David Ziemer

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David Ziemer can be reached by email.