Opinion analysis: Plain Sentencing Guidelines errors “ordinarily” justify relief

When a federal district court sentences a defendant under an incorrect Sentencing Guidelines range, the defendant ordinarily is entitled to a resentencing, the Supreme Court ruled 7-2 on Monday in Rosales-Mireles v. United States. This presumption of relief applies even when the actual sentence happens to fall within the correct range, stated Justice Sonia Sotomayor’s 15-page opinion for the court. The decision, which highlights sharp divisions between justices about the status of the Sentencing Guidelines and how the American public regards the criminal justice system, will affect a significant number of cases.

In 2015, Florencio Rosales-Mireles was convicted in Texas state court of assaulting his wife and son, and was released to ICE custody. Rosales-Mireles then pleaded guilty to illegal re-entry into the United States. In drafting its pre-sentence report, the Probation Office mistakenly counted one of Rosales-Mireles’ previous convictions twice, resulting in an incorrect range under the Sentencing Guidelines of 77-96 months. The correct range was 70-87 months. Neither the prosecutor, defense lawyer nor the district court caught the mistake. The court proceeded to sentence Rosales-Mireles to 78 months — near the middle of the correct range, but near the bottom of the incorrect range under which the court was operating.

On appeal, Rosales-Mireles’ lawyer detected the error. Because the defense had not objected in the district court, the U.S. Court of Appeals for the 5th Circuit reviewed the sentence for plain error under Federal Rule of Criminal Procedure 52(a), as interpreted by the Supreme Court’s 1993 decision in United States v. Olano. Olano set forth three requirements for relief: (1) there must be an error that has not been intentionally relinquished or abandoned; (2) the error must be plain (“clear or obvious”); and (3) the error must have affected the defendant’s substantial rights.

If those three conditions are satisfied, the analysis moves to what has now come to be called Olano‘s fourth prong, namely, that “the court of appeals should exercise its discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” The 5th Circuit panel denied relief, stating that this fourth prong was not satisfied unless the error was so egregious as to “shock the conscience.” The Supreme Court granted certiorari to clarify the proper standard under the fourth prong.

The government conceded that the 5th Circuit’s “shock the conscience” test was improper, yet insisted that Rosales-Mireles’ sentence should be upheld on the grounds that it was reasonable (falling within the correct range), and came after a hearing that was fundamentally fair (the defense lawyer could have caught the mistake but didn’t). At oral argument, however, it became clear that two critical votes, Justices Anthony Kennedy and Neil Gorsuch, were going to stick to their previously articulated views that relief in cases involving plain sentencing errors should not be limited to exceptional cases, given that resentencing is not nearly as onerous as a full retrial.

Sotomayor’s majority opinion made relatively short work of the “shock the conscience” standard. It then explained why any restrictive interpretation of Olano‘s fourth prong would undermine both the guidelines and the fourth prong itself. Section 3553(a) of the Federal Criminal Code states that a court “shall impose a sentence sufficient, but not greater than necessary,” to achieve the listed objectives of sentencing. Using an incorrectly high range creates a reasonable probability that the resulting sentence will be greater than necessary, Sotomayor stated. The fourth prong of Olano speaks in terms of the “fairness, integrity or public reputation of judicial proceedings.” “In broad strokes,” wrote Sotomayor, “the public legitimacy of our justice system relies on procedures that are ‘neutral, accurate, consistent, trustworthy, and fair,’ and that ‘provide opportunities for error correction.’”

The court’s sweeping language about public perception of the criminal justice system was abundant and striking. “It is crucial in maintaining public perception of fairness and integrity in the justice system that courts exhibit regard for fundamental rights and respect for prisoners ‘as people,’” stated the court, quoting from Tom Tyler’s 2006 book, “Why People Obey the Law.” Citing a Gorsuch decision from the U.S. Court of Appeals for the 10th Circuit, the court asked, “[W]hat reasonable citizen wouldn’t bear a rightly diminished view of the judicial process and its integrity if courts refused to correct obvious errors of their own devise that threaten to require individuals to linger longer in federal prison than the law demands?” And, drawing on the empirical work of Rebecca Hollander-Blumoff (a Tyler protegée), the court ventured, “[A] sentence that lacks reliability because of unjust procedures may well undermine public perception of the proceedings.”

Justice Clarence Thomas’ dissent, joined by Justice Samuel Alito, took a diametrically opposed view of what undermines public perception of the criminal justice system. Quoting the late Chief Justice of California Roger Traynor, Thomas stated that reversal based on errors that have “no actual effect on the judgment … encourages litigants to abuse the judicial process and bestirs the public to ridicule it.” Reversal based on a “technicality” is the “real threat” to fairness, integrity, and the public reputation of judicial proceedings, he continued. He pointedly discounted the methodology of Hollander-Blumoff’s study and asserted that the majority’s views about the importance of procedure in this context contravene precedent. “This Court has repeatedly concluded that purely procedural errors—ones that likely did not affect the substantive outcome—do not satisfy the fourth prong of plain-error review.”

The dissenters renewed their longstanding protest to the continued centrality of the guidelines after United States v. Booker, in which the Supreme Court held that mandatory guidelines violated the Sixth Amendment, but that the guidelines could still serve as an advisory anchor. The dissent bristled at the majority’s assertion that plain sentencing errors must be corrected so that convicts do not “linger longer in federal prison than the law demands.” “But the Guidelines are not ‘law,'” protested the dissent. “They are purely ‘advisory’ and ‘merely guide the district courts’ discretion.’ Although the Guidelines range is one of the factors that courts must consider at sentencing, … judges need not give the Guidelines range any particular weight.”

The majority in Rosales-Mireles did not simply assume the legitimacy of the guidelines as a continuing feature of the federal sentencing apparatus, but instead asserted it front and center. In its Section I-A, the majority began by saying, “[T]o ensure ‘certainty and fairness’ in sentencing, district courts must operate within the framework established by Congress. The Sentencing Guidelines serve an important role in that framework. District courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.” Rosales-Mireles is thus another tile in a post-Booker mosaic into which the guidelines, however advisory, are cemented.

One obvious question after Rosales-Mireles is what the court means by the term “ordinarily” to describe when a defendant is entitled to a resentencing after the district court has made a plain sentencing guidelines error. Such language implies a presumption in favor of relief in any such case. However, the court did not specify what might rebut that presumption. “There may be instances where countervailing factors satisfy the court of appeals that the fairness, integrity, and public reputation of the proceedings will be preserved absent correction,” stated the majority. “But on the facts of this case, there are no such factors.”

The court did rule out one argument that prosecutors might have attempted. Under United States v. Vonn, a defendant bears the burden to persuade the court that the error seriously affected the “fairness, integrity or public reputation of judicial proceedings.” Prosecutors might have argued that, even after Rosales-Mireles, defendants must demonstrate that there are no “countervailing factors” that would negate their eligibility for relief. However, the court made it clear in its footnote 4 that such an argument must fail. “In the ordinary case,” it stated, “proof of a plain Guidelines error that affects the defendant’s substantial rights is sufficient to meet that burden.”