Petitioner Armarcion Henderson pled guilty in district court to being a felon in possession of a firearm. The district court judge gave Henderson a longer sentence than required to ensure that he could participate in a drug treatment program and Henderson did not object to the sentence. The district court denied Henderson's later motion to correct his sentence and he appealed to the Fifth Circuit. The Fifth Circuit reviewed the district court's decision for plain error under Federal Rule of Criminal Procedure 52(b) and, finding no substantial mistake by the district court, upheld the district court's sentencing. Henderson now argues that the Fifth Circuit should have reversed for plain error because, following Henderson's trial, the Supreme Court decided that judges cannot base a sentence on a defendant's rehabilitative needs. The United States argues that because the law pertaining to sentencing was not settled at the time of his trial and the defendant did not object to his sentence, Henderson's claims do not meet the Rule 52(b) standard. The Supreme Court's decision in this case will affect criminal defendants who use Rule 52(b) to appeal trial court decisions and will also impact judicial efficiency.
When the governing law is unsettled at the time of trial but settled in the defendant's favor by the time of appeal, should an appellate court reviewing for "plain error" apply Johnson’s time-of-appeal standard, as the First, Second, Sixth, Tenth, and Eleventh Circuits do, or should the appellate court apply the Ninth Circuit’s time-of-trial standard, which the D.C. Circuit and the panel below have adopted?
Whether an appellate court can find plain error in a lower court's sentencing where the law was unsettled at the time of the appellant’s trial and the appellant did not object to his sentence at trial?
Armarcion Henderson pled guilty in the United States District Court for the Western District of Louisiana to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See United States v. Henderson, 646 F.3d 223, 224 (5th. Cir. 2011). The district court judge sentenced Henderson to 60 months imprisonment even though the sentencing guidelines only required 33 to 41 months. Id. The judge reasoned that the longer sentence would enable Henderson to participate in the Federal Bureau of Prisons' drug abuse treatment program. See id. Henderson did not object to the longer sentence, but eight days after the sentencing hearing, he filed a motion under Federal Rule of Criminal Procedure 35(a) ("Rule 35(a)") to correct his sentence. Id.; Fed. R. Crim. P. 35. Henderson claimed that the district court had clearly erred by violating 18 U.S.C. §3582(a) and imposing a longer sentence so that Henderson could be rehabilitated through the treatment program. See Henderson, 636 F.3d at 224. The district court denied the motion and Henderson appealed to the United States Court of Appeals for the Fifth Circuit. Id.
The Fifth Circuit first addressed the question of whether Henderson's Rule 35(a) motion after the sentencing hearing preserved his claim of clear error for appeal. Henderson, 636 F.3d at 224. At the time of Henderson's trial, the circuits were split on whether a district court could impose a longer sentence on a defendant to promote the defendant's rehabilitation. Id. at 225.Furthermore, the Fifth Circuit had not made a ruling on this issue at the time of Henderson's trial. Id.The Fifth Circuit concluded that because the circuits were split and there was no precedent in the Fifth Circuit itself on the issue, the lower court decision was not a clear error. See id.
The Fifth Circuit then considered whether the district court made a plain error under Federal Rule of Criminal Procedure 52(b) ("Rule 52(b)"). See Henderson, 636 F.3d at 225. A plain error is a mistake made by a trial court that is so clear and significant that, although neither party objected to it at trial, the appellate court will review it. See Fed. R. Crim. P. 52. Comparatively, clear error means that even though an appellate court recognizes that the trial court's finding has some evidentiary support, the appellate court strongly believes that based on all of the evidence the trial court made a mistake. See Concrete Pipe and Products of California, Inc., v. Construction Laborers Pension Trust For Southern California, 508 U.S. 602, 622 (1993). The Fifth Circuit determined that based on Tapia v. United States, which the Supreme Court decided after Henderson's trial, the district court did err by imposing a longer sentence so that Henderson could be rehabilitated in the treatment program. See id.; see also Tapia v. United States, 131 S.Ct. 2382 (2011). The Fifth Circuit held, however, that to be a plain error, the error had to be obvious under the law governing at the time of Henderson's trial, according to the Court's decision in United States v. Jackson. See United States v. Jackson, 549 F.3d 963, 977 (5th Cir. 2008); See Henderson, 636 F.3d at 225. Consequently, the Fifth Circuit decided that because at the time of Henderson's trial there was no precedent on the issue of imposing a longer sentence, there was no plain error and thus the Fifth Circuit affirmed the district court's sentence. Id.
Subsequently, Henderson filed petitions for a hearing en banc and a panel rehearing, both of which the Fifth Circuit denied. Brief for Petitioner, Armarcion D. Henderson, at 1. Henderson then filed a writ of certiorari, which the Supreme Court granted on June 25, 2012 to consider whether the district court committed plain error under Rule 52(b) by sentencing Henderson to a longer sentence for the purpose of rehabilitation. See id. at i, 1; see also Brief for Respondent, United States, at 10.
Petitioner Henderson asserts that because the Supreme Court had decided Tapia by the time of his appeal to the Fifth Circuit, that court should have determined that his longer sentence was indeed plain error. See Brief for Petitioner, at 30–34. The United States believes, however, that because the law was unsettled at the time of Henderson's trial, the Fifth Circuit could not have found that Henderson's sentence was plain error. See Brief for Respondent, at 10–11, 29–30. The Supreme Court's decision will affect the efficiency of the judicial system as well as criminal defendants relying on Rule 52(b) regarding whether an appellate court can find plain error when the law was settled in favor of a defendant after the defendant's trial but before the defendant’s appeal. Brief of Amicus Curiae National Association of Criminal Defense Lawyers ("NACDL") in Support of Petitioner at 1.
The National Association of Criminal Defense Lawyers (“NACDL”), contends that Henderson’s time-of-appeal standard promotes justice for criminal defendants. Brief of NACDL at 7. The NACDL argues that Rule 52(b) is supposed to protect criminal defendants from unfair treatment by ensuring that obvious errors can be rectified on appeal. Id. Consequently, the NACDL asserts that whether the law was settled before or after a defendant’s trial should not factor into an appellate court’s Rule 52(b) consideration. Id. According to the NACDL, the time-of-trial standard undermines the purpose of Rule 52(b) because a defendant might not get justice simply because the law was settled after that defendant’s trial. Id. at 8.
The United States claims, however, that the time-of-trial standard Rule 52(b) still provides justice for defendants. Brief for Respondent at 32, 44. Specifically, the United States notes that if the law was unsettled at the time of trial then the district court did not make an unjust decision and if the defendant thought that the court’s decision was a wrong, the defendant could have objected and preserved the claim for appeal. See id. at 33-34, 43. Furthermore, the United States argues that justice for the defendant has to be balanced against the public’s interest and believes that a time-of-appeal standard would undermine the public’s interest in having a final decision made by the district court. Id. at 31, 44. Specifically, the United States believes that the time-of-appeal standard would allow defendants to wait before objecting to a possible error, forcing an appellate court to review the case for an issue that the district court did not consider. See id.
THE IMPACT ON SIMILARLY SITUATED DEFENDANTS
The NACDL also emphasizes the importance of courts treating similarly situated defendants the same. Brief of NACDL at 8. The NACDL claims that the Supreme Court applies law retroactively to cases awaiting appeal to ensure that the same law applies to similarly situated defendants. Id. The NACDL asserts that under the time-of-appeal standard appellate courts would treat similarly situated defendants the same, but under the time-of-trial standard similarly situated defendants would not, simply because of when the law was settled. See id. at 9–10.
According to the United States, a defendant who does not object to an error at trial is not similarly situated to one who objects and therefore courts do not need to treat the two the same. See Brief for Respondent at 41–42. A defendant who does not object at trial wastes the court system’s time and resources by waiting to make a claim of error, but a defendant who objects allows the court to promptly make a decision at trial or ensures that a claim is clearly preserved for appeal. See id.
THE EFFECT ON JUDICIAL EFFICIENCY
The NACDL is also concerned that the time-of-trial standard will increase the strain on the appellate courts. Brief of NACDL at 10. Under the time-of-trial standard, appellate courts considering a Rule 52(b) motion will have to decide the issue of whether law was settled or not at the time of trial, which may be a difficult decision because the line between settled and unsettled is not always clear. See id. at 10. Under the time-of-appeal standard, the NACDL argues, the appellate courts will not have to waste time with these decisions. See id. at 11–12.
The United States contends, however, that the time-of-trial standard is actually the more efficient standard because the time-of-appeal standard will increase the number of remands and resentencings as a result of appellate courts finding plain error. See Brief for Respondent at 38, 47–49. The United States also claims that, because under the time-of-trial standard defendants are more likely to object to any possible errors at trial, an appellate court will not have to address these errors for the first time. See id. Furthermore, the United States argues that the time-of-trial standard protects district courts as the courts that have the better understanding of the facts and issues of a case because the district courts are where a case is first heard. Id. at 31.
The Federal Rule of Criminal Procedure 52(b) (the Rule) provides for appellate review of “plain” errors that appellants fail to object to in lower court proceedings. Fed. R. Crim. P. 52(b). The Rule has four prongs that must be satisfied before appellate courts will review a forfeited error (an error that was not objected to during lower court proceedings). See Brief for Petitioner at 13–16. The first is that an error must have occurred. See Brief for Respondent at 39–40. The second prong requires that the error be plain, meaning clear and obvious. See id. The third prong asks whether the error factored into the lower court’s ruling and thus substantially affected the appellant’s rights. See Brief for Petitioner at 14–15. The fourth prong considers whether the error affects the fairness, integrity, or public reputation of judicial proceedings. See id. at 15–16. In this case, Petitioner Henderson asserts that his forfeited error at trial has become a plain error due to a change in laws on criminal sentencing, so his case is entitled to a review of this error per Rule 52(b). See id. at 9–11, 16–19. However the United States contends that the textual, structural, and historical features of Rule 52(b) demonstrate that the Rule is not meant to encompass plain errors that were not errors at the time of the trial but became errors at the time of the appeal. See Brief for Respondent at 11.
Transitional Moments and Retroactive Application of Rule 52(b)
Henderson argues that prior cases dealing with the applicability of Rule 52(b) to cases in which there was an error due to a transitional moment (i.e., change) in the law between the time of trial and the time of appeal have held that the Rule allows appellate review of such forfeited errors. See Brief for Petitioner at 18. Henderson further contends that due to the frequency of errors committed during trial proceedings, cases have provided appellate courts with wide discretion to determine what error is or is not plain at the time of trial and time of appeal. See id. at 22. As such, appellate courts can retroactively apply the law to permit a review of forfeited errors as provided by Rule 52(b). See id. at 29. In other words, Henderson asserts that if a new law is made during the time that a case has not become final—like a case pending review—the new law has to be retroactively applied. See id.
The United States rebuts Henderson’s arguments by stating that the district court’s sentencing error was not clear or obvious under the laws at that time, so the ruling should not be submitted for plain-error review provided by Rule 52(b). See Brief for Respondent at 9. The United States asserts that an error is not plain if the law pertaining to the error is unsettled at the time of trial or the time when the claim of error was forfeited. See id. at 11–15. Adding to this, the United States argues that Rule 52(b) allows review of errors that were not objected to if an objection would have been futile due to the law having already been settled against the appealing party or unnecessary due to the egregious nature of the error. See id. Such errors are plain errors, the United States argues, because a competent district court judge should avoid committing these errors even without an objection from the party in the trial proceeding. See id. at 20. However, the United States believes that the Rule does not cover situations where the law is unsettled and the appealing party does not reserve an objection to the error related to the unsettled law because in these situations, making an objection would not be futile or unnecessary. See id. at 10.
Textual Interpretation of Rule 52(b)
Henderson asserts that Rule 52(b) allows appellate courts to consider forfeited errors that arise after the time of the trial because the Rule and relevant case law provide that “the appellate court must consider the error, putative or real, in deciding whether the judgment below should be overturned.” Brief for Petitioner at 13–16. Henderson also maintains that the wording of Rule 52(b) does not imply that the forfeited error and the error brought up for review on appeal must be the same or that the former error must have been in existence at the time of the trial. See id. at 12. At bottom, Henderson contends that as long as an error is plain—suggesting an egregious mistake of law that could harm an appellant’s rights—then reviewing courts should have the authority given by Rule 52(b) to correct the error. See id. at 10.
The United States argues that previous cases dealing with Rule 52(b), particularly Johnson v. United States, do not apply to this case. See Brief for Respondent at 18. The United States states that the Johnson Court specifically declined to expand that case’s ruling to situations where the law is unsettled at the time of trial but becomes settled by the time of appeal. See id. at 9, 16–17. The United States adds that Johnson allows review of errors that become plain at the time of the appeal only if an objection to the error at the time of trial would not have been helpful to the party making the objection—basically cases in which the law has been settled against the party. See id. However, in this case, making an objection at the time of trial would have been helpful. See id. at 20. Looking to the text of Rule 52(b), the United States argues that the Rule’s wording, particularly the phrase “plain error that affects substantial rights,” does not suggest that the error only needs to be plain at the time of review. See id. at 18. If an error needs to be plain only at the time of review, then the Rule’s second clause, which allows a plain error to be considered “even though it was not brought to the court’s attention,” would be unaccounted for. Id.
History and Intent of Rule 52(b)
The United States contends that the Advisory Committee that drafted Rule 52(b) did not intend for the Rule to apply to errors that are unsettled at the time of trial but that become settled at the time of appeal. See Brief for Respondent at 24. The Advisory Committee Note included with the Rule gives examples of application of Rule 52(b), and none of the examples permits review of errors for which the law is unsettled at the time of trial. See id. The United States claims that the Advisory Committee Note has persuasive sway in this matter because the codification of Rule 52(b) has been done exactly as the Advisory Committee suggested. See id. at 26. Furthermore, the United States asserts that the narrow construction of Rule 52(b) is meant to limit the use of plain-error review by forcing appellants to make objections at the trial level so that many errors will be resolved early in the case rather than prolonged through the appeals process. See id. at 27. In this way, appellate courts will not waste their time deciding errors that could have been resolved, and instead these courts can focus on consideration of truly egregious errors that the appellant was unable to avoid through raising an objection. See id. at 28, 33.
Henderson argues that the looking to the legislative intent of Rule 52(b) is not useful because Congress did not take part in drafting the Federal Rules of Criminal Procedure. See Brief for Petitioner at 6–7. Rather, the Supreme Court was put in charge of creating the Rules and reporting them to Congress. See id. at 7. Henderson contends that the United States’ arguments relying on the Advisory Committee Note are without merit because the Committee is a body affiliated with the Supreme Court. See id. at 6–7. Although the Advisory Committee works with the Supreme Court, Henderson believes, it is not in charge of, and not responsible for, the Rules. See id. at 8. Henderson asserts that the Court itself remains in charge. See id. Henderson adds that a few Justices in the Court found it inappropriate for Congress to request the Supreme Court to make the Rules because the Court is not in touch with the workings of trial courts and thus would not make effective or relevant Rules to which the federal district court judges will be held. See id. Henderson makes a final point that since the Rules first issuance around 1944, the Court has incorporated many revisions and additions in the Rules, and Congress has not reviewed any of these changes although the Court feels that it should. See id. at 8–9.
The Supreme Court’s decision in this case will determine whether Rule 52(b) applies when the defendant did not object to an error at trial even though the law was unsettled at the time of the trial. Henderson believes that the time-of-appeal standard is appropriate in this case because laws can be applied retroactively and therefore the district court did make a plain error in its sentencing. The United States, however, supports a time-of-trial standard and argues that Henderson should have objected to his sentence at his trial because the law was unsettled. The Court’s decision will impact judicial efficiency and defendants who rely on Rule 52(b) to appeal.
- The Oyez Project, Henderson v. United States (Oct. 16, 2012)
- Thomson Reuters News & Insight, Defendants Can Benefit From Clarifications in the Law: 5th Circuit (July 26, 2012)
- Wex: Criminal Procedure
- Wex: Sentencing