No new grants, but a rebuke for the 5th Circuit

Last Friday, the justices had their regularly scheduled private conference. According to the court’s Public Information Office, the meeting was a departure from their normal format: Following Center for Disease Control guidelines to combat the spread of the coronavirus, only Chief Justice John Roberts was actually in the justices’ conference room, with the rest of the justices joining the meeting by phone. Today the justices issued orders from that conference, but they did not add any new cases to their docket for next term.

The justices summarily vacated a decision by the U.S. Court of Appeals for the 5th Circuit in the case of Charles Davis, who in 2016 pleaded guilty to being a felon in possession of a firearm and possessing drugs with the intent to distribute them. Davis was sentenced to 40 months in federal prison, with his sentence to start after time in prison for state offenses in 2015 for which he had not yet been sentenced.

Davis did not object to his sentence at the time, but when he appealed to the 5th Circuit he argued that his federal sentence should run concurrently with, rather than consecutively to, his state sentences because they were part of the “same course of conduct.” However, the 5th Circuit refused to consider his argument at all. Although an appellate court normally reviews an argument that a criminal defendant did not raise in the district court for “plain error,” the 5th Circuit ruled that Davis’ argument involved a question of fact. And in the 5th Circuit, questions of fact that the district court could have resolved if the defendant had objected cannot be plain error.

Davis asked the Supreme Court to review the 5th Circuit’s decision, and today the justices threw out the ruling, with a discussion of the legal rule that was so brief that it amounted to an implied rebuke of the court of appeals. The text of Federal Rule of Criminal Procedure 52(b) and the Supreme Court’s own cases, the justices explained in an unsigned three-page decision, do not “immunize factual errors from plain-error review.” “Simply put,” the court continued, “there is no legal basis for the Fifth Circuit’s practice of declining to review certain unpreserved factual arguments for plain error.” While the justices did not weigh in on whether Davis had met the plain-error standard, they sent the case back to the lower courts for new proceedings.

The justices denied a petition filed by Edwin Avery, who had asked them to decide whether the ban on second or successive filings of habeas petitions applies to federal prisoners seeking collateral review. Noting that that the federal government now disagrees with the six courts of appeals that “had previously decided the issue in the Government’s favor,” Justice Brett Kavanaugh indicated that he would grant review in a future case to resolve the division among the courts of appeals on this question.

The justices are scheduled to meet (perhaps remotely) again on Friday for another private conference. Orders from that conference are likely on Monday, March 30, at 9:30 a.m.

This post was originally published at Howe on the Court.