For the purposes of plain-error review, should an appellate court apply a rebuttable presumption of prejudice against a defendant if a misapplication of the United States Sentencing Guidelines (“Sentencing Guidelines”) leads a trial court to rely on an erroneous sentencing range calculation?
In order to be granted relief under Federal Rule of Criminal Procedure Rule 52(b) (“Rule 52(b)”), plain-error review requires that a defendant establish prejudice by proving that the error affected a substantial right. In this case, the Supreme Court has an opportunity to determine whether an appellate court, applying plain-error review, should presume a rebuttable presumption of prejudice if there is a miscalculation of a defendant’s sentencing range under the United States Sentencing Guidelines (“Sentencing Guidelines”). Molina-Martinez, the petitioner, argues that an erroneous sentencing calculation under the Sentencing Guidelines should result in a rebuttable presumption that the error affected a defendant’s substantial rights. The United States, the respondent, counters that because the misapplication of the Sentencing Guidelines is a non-structural error, Molina-Martinez retains the burden of showing prejudice. The Court’s decision will potentially impact appellate courts’ application of plain-error review under Rule 52(b) and affect the procedural strategy and substantive rights of criminal trial litigants.
Questions as Framed for the Court by the Parties
Where an error in the application of the United States Sentencing Guidelines results in the application of the wrong Guideline range to a criminal defendant, should an appellate court presume, for purposes of plain-error review under Federal Rule of Criminal Procedure 52(b), that the error affected the defendant’s substantial rights?
On August 31, 2012, United States Customs and Border Protection agents arrested petitioner Saul Molina-Martinez (“Molina-Martinez”)—a Mexican national with no legal status in the United States—near Sarita, Texas. The agents determined that five days earlier, on August 26, Molina-Martinez illegally entered the United States without inspection. Prior to this arrest, Molina-Martinez had been deported from the United States on two earlier dates, February 5, 2007 and August 20, 2012. Moreover, Molina-Martinez had two previous convictions from 2002 and 2011 for aggravated burglary. On September 25, 2012, a grand jury indicted Molina-Martinez with one count under 8 U.S.C. § 1326(a) and (b) of unlawful presence in the United States after deportation. On October 11, 2012, Molina-Martinez pled guilty in the United States District Court for the Southern District of Texas.
To assist with the sentencing phase, the district court ordered a presentencing report (“PSR”). Based on Molina-Martinez’s criminal history, which included four aggravated burglaries in May 2009, a fifth aggravated burglary in May 2010, and an arrest in June 2010 for those burglaries, the PSR calculated that Molina-Martinez had a criminal history score of 18. Based on this score, the United States Sentencing Guidelines (“Sentencing Guidelines”) recommended a sentencing range of 77 to 96 months of imprisonment. In turn, the district court sentenced Molina-Martinez to 77 months of imprisonment. Molina-Martinez appealed to the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”), arguing for the first time that the district court erred in its criminal history score calculation.
On appeal and under plain-error review, the Fifth Circuit affirmed the district court’s decision. In its holding, the Fifth Circuit found that the PSR erred in calculating the criminal history score by not accounting for a lack of intervening arrests between the May 2009 burglaries and May 2010 burglary. The Fifth Circuit instead found that the proper calculation would have given Molina-Martinez only 12 criminal history points and would have reduced Molina-Martinez’s sentencing range of 70 to 87 months of imprisonment. However, the Fifth Circuit found that because the actual sentence fell within the correct sentencing range, Molina-Martinez had to show additional evidence to establish that there was a clear and obvious error affecting his substantial rights. The Fifth Circuit concluded from the record that Molina-Martinez produced no additional evidence to establish that the sentencing guidelines error affected his substantial right and warranted a plain-error reversal.
During the proceedings, Molina-Martinez preserved for possible review his contention that an error in the use of Sentencing Guidelines should be presumed prejudicial. Molina-Martinez subsequently petitioned the Supreme Court of the United States for a writ of certiorari, which the Supreme Court granted on October 1st, 2015.
In this case, the Supreme Court will decide whether Federal Rule of Criminal Procedure 52(b) (“Rule 52(b)”) triggers a rebuttable presumption that affects a defendant’s substantial rights when the Sentencing Guidelines result in an inaccurate sentencing range. If a defendant’s substantial rights are prejudiced due to a plain error, appellate courts will consider the error on appeal despite it not being raised in the lower court. Molina-Martinez argues that sentencing guideline errors, un-objected to by defense counsel, trigger a rebuttable presumption that the error affected the defendant’s substantial rights. On the contrary, the United States argues that sentencing miscalculations, un-objected to by defense counsel, do not trigger a rebuttable presumption that the error affected a defendant’s substantial right. The United States maintains that a defendant seeking relief from such an error must fulfill all the “requirements of the plain-error standard” set forth in Rule 52(b).
DOES THE DIFFICULTY OF PROVING PREJUDICE NECESSITATE A REBUTTABLE PRESUMPTION OF PREJUDICE?
In United States v. Olano, the Supreme Court established a four-prong test for plain-error review under Federal Rule of Criminal Procedure 52(b). Under the third prong of plain-error review, the defendant bears the burden of showing prejudice to a substantial right. Molina-Martinez argues that the Supreme Court created two exceptions to this presumption in Olano. Molina-Martinez focuses on the second Olano exception, which presumes prejudice when there is a high probability that the error will affect the outcome of the case and the nature of the error makes it unlikely that the defendant will be able to make a specific showing of prejudice. Molina-Martinez argues that the difficulty of proving prejudice under the Sentencing Guidelines necessitates a rebuttable presumption of prejudice for sentencing miscalculations. Molina-Martinez contends that it is nearly impossible to determine whether an erroneous sentence would have been different because a judge can render a sentence with “little or no explanation.” Molina-Martinez concludes that unless the sentencing judge makes a “fortuitous comment” explaining why a specific sentence was imposed, the defendant cannot demonstrate prejudice.
The United States disagrees with Molina-Martinez and argues that the miscalculation of a sentence under the Sentencing Guidelines is not an error that is “presumptively prejudicial.” The United States maintains that the Supreme Court’s precedent indicates that “structural errors”—those errors “affect[ing] the framework within which the trial proceeds”—are presumptively prejudicial. The United States argues that the misapplication of the Sentencing Guidelines is a “non-structural” error that requires a showing of prejudice. The United States therefore argues that relief under Rule 52(b) requires Molina-Martinez to demonstrate that there is a high likelihood he would have received a lesser sentence. The United States argues that a presumption of prejudice is inappropriate when based on the “difficulty in establishing case-specific prejudice from a Guidelines error.” . The United States maintains that a fortuitous comment is not necessarily required for proving specific prejudice in Sentencing Guideline cases. The United States points out that the reviewing court will know the “nature and magnitude” of the sentencing error in every case, which will allow the court to determine the likelihood of prejudice regardless of a “fortuitous comment”. The United States further contends that there will be other evidence on the record for proving specific prejudice, such as sentencing memoranda, pre-sentence reports, and any objections filed by either party.
CAN THE “NATURAL EFFECT” OF THE SENTENCING GUIDELINE SUPPORT A PRESUMPTION OF PREJUDICE?
Molina-Martinez maintains that Supreme Court precedents “suggest that a rebuttable presumption of prejudice is appropriate in a criminal case where the  ‘natural effect’ of a particular type of error is to affect a defendant’s substantial rights.” Molina-Martinez then argues that the “natural effect” of erroneously calculating a Sentencing Guideline is to directly affect a defendant’s sentence, which subsequently affects the substantial rights of that defendant. Molina-Martinez contends that the Sentencing Guidelines’ “continuing centrality and influence in federal sentencing provide compelling reasons for presuming that Guideline application errors affect a defendant’s substantial rights.” Molina-Martinez supports this assertion by noting that the Sentencing Guidelines are not only the starting point for district court judges in determining a sentence, but that judges must take them into consideration throughout the entire sentencing process. Molina-Martinez highlights Supreme Court precedent post Booker to demonstrate that the Sentencing Guidelines still hold considerable weigh in sentencing decisions despite not being mandatory. Thus, Molina-Martinez asserts that an erroneously calculated sentence under the Sentencing Guideline affects a defendant’s substantial rights, because “the whole point of the guidelines is to affect the defendant’s ‘substantial rights’ by guiding the district court’s analysis of how much of his liberty he must forfeit to the government.”
The United States disagrees and argues that a “category-wide presumption of prejudice” cannot be “based on an error’s natural effect.” The United States maintains that the Supreme Court has cautioned against the use of “mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record.” The United States further contends that there is a “congressional preference for determining ‘harmless error’ without the use of presumptions.” The United States argues that the courts of appeals, when determining Guideline errors, has never “determined the ‘natural effect’ of a type of error based on ‘empirical evidence’ and ‘expertise.’” . The United States maintains that Molina-Martinez’s ‘natural-effects test’ is inappropriate. In stating so, the United States relies on United States v. Booker to demonstrate the test’s impracticality because, during Booker, there was “no relevant data to consult because district courts had just begun sentencing under advisory Guidelines.” The United States argues that “even now, with a body of judicial experience and data on advisory Guidelines sentencing, empirical evidence still provides an unreliable and shifting basis for crafting legal presumptions that may long outlive empirical generalizations thought true at the time.”
IF A PRESUMPTION OF PREJUDICE IS NOT PRESUMED, CAN THE COURT FIND THAT MOLINA-MARTINEZ’S SUBSTANTIAL RIGHTS HAVE BEEN AFFECTED?
Molina-Martinez argues that even if the rebuttable presumption of prejudice he proposes is not adopted, “the Court should hold that [he] nevertheless met his burden of establishing an effect on his substantial rights, because the record shows at least a reasonable probability that the sentence would be lower under the correct Guideline range.” Specifically, Molina-Martinez points out that although the government asked for the longest sentence under the Guidelines, the district court actually assigned Molina-Martinez the shortest possible sentence within that range.
The United States counters by arguing that Molina-Martinez’s argument for reversal lacks merit because it was not articulated in the question presented. The United States further notes that it is erroneous to address Molina-Martinez’s alternative argument because “it would not resolve whether the [Molina-Martinez] is entitled to relief under the fourth prong on the plain-error test.” The United States argues that even if the court did address this argument, it would not grant Molina-Martinez relief because there is no evidence to suggest that the court would have imposed a shorter sentence had the correct Guidelines been used.
This case presents the Supreme Court with an opportunity to determine whether an appellate court should presume a rebuttable presumption of prejudice under plain-error review when a misapplication of Sentencing Guidelines leads to a sentencing error. Molina-Martinez argues that a misapplication of the Sentencing Guidelines should result in a rebuttable presumption that the error affected the defendant’s substantial rights. The United States counters that the misapplication of the Sentencing Guidelines is a non-structural error, and as such Molina-Martinez retains the burden of showing prejudice in his sentencing. The Court’s decision will impact appellate courts’ application of plain-error review under Federal Rule of Criminal Procedure 52(b) (“Rule 52(b)”) and potentially affect the procedural strategy and substantive rights of criminal-trial litigants.
DOES A REBUTTABLE PRESUMPTION INCENTIVIZE DEFENDANTS TO WITHHOLD OBJECTIONS UNTIL APPEAL?
Molina-Martinez maintains that a rebuttable presumption of prejudice will not encourage defendants to delay objections to sentencing guideline errors until appeal. Instead, Molina-Martinez argues that a defendant is incentivized to challenge sentencing calculations prior to appeal. In support, Molina-Martinez explains that withholding an objection lacks any tactical advantage and would possibly disadvantage the defendant in litigation and sentencing, particularly because any presumption of prejudice would be rebuttable. This rebuttable presumption, Molina-Martinez explains, allows courts to correct errors made in sentencing while preserving defendants’ incentives to object during the proceedings.
The United States counters that forcing the government to rebut prejudice will discourage defense counsels from both scrutinizing and objecting to the Sentencing Guideline calculations during sentencing. Instead, the United States argues that the current plain-error rule puts the onus on defense counsels to be diligent and attentive, and encourages them to address any potential errors in the Sentencing Guideline calculations at the defendant’s sentencing. Given the complexity of the Sentencing Guidelines, the United States argues that having the defendant retain the burden of showing prejudice will ensure that defense counsel remain diligent in identifying potential errors in the sentencing calculations.
DOES A REBUTTABLE PRESUMPTION PROTECT THE DISTRICT COURT’S ROLE IN SENTENCING?
Molina-Martinez argues that a presumption of prejudice will allow district courts to retain their power over appellate courts as a sentencing body—a role that district courts have historically occupied within the American legal system. Based on this protection, Molina-Martinez asserts that a rebuttable presumption will provide district courts the opportunity to correct undisputed sentencing errors. Molina-Martinez contends that this will force district courts to rethink their sentencing policies and will help to amend the Sentencing Guidelines.
The United States argues that, although district court judges are in the best position to calculate sentences, preserving the current prejudice requirements will encourage timely objections, which will better preserve the district court’s sentencing role. The United States asserts that allowing district courts to correct and avoid mistakes before they can affect the defendant’s final sentence would be the best way to respect the district court’s role.
DOES A REBUTTABLE PRESUMPTION IMPOSE EXTRA COSTS ON THE LEGAL SYSTEM?
Molina-Martinez contends that an appellate court’s application of a rebuttable presumption will not impose significant costs on the legal system. Molina-Martinez notes that remanding cases generates minimal costs and that the brevity of sentencing proceedings requires only minimal effort from the involved parties when compared to a retrial. Moreover, Molina-Martinez maintains that parties can waive the right to attend allocution, which allows courts to enter new judgments without a hearing. Given these low costs and the benefits of reaching the correct result, Molina-Martinez contends that applying a rebuttable presumption will incentivize courts to reverse errors and exercise proper sentencing.
The United States, however, counters that Molina-Martinez undervalues the costs that a rebuttable presumption will generate. The United States argues that resentencing will force over-burdened district courts to revisit an error that could have been resolved with an objection and to bear the costs of reconvening all parties involved in the prior litigation. The United States further argues that there is no evidence to indicate that defendants would waive their right to allocution. To support this position, the United States points to the overall value to defendants of being able to present evidence of post-sentencing rehabilitation, as well as the current rarity in practice of defendants waiving allocution.
In this case, the Supreme Court will determine whether an appellate court should apply a rebuttable presumption of prejudice for purposes of plain-error review if a misapplication of the Sentencing Guidelines leads to an erroneously calculated sentencing range. To resolve the issue, the Supreme Court will have to decide whether a misapplication of the Sentencing Guidelines that produces an erroneous sentencing range prejudices a defendant’s substantial rights. The Court’s ruling will potentially alter appellate courts’ application of plain-error-review procedure under Federal Rule of Criminal Procedure 52(b) and affect the procedural strategy and substantive rights of criminal-trial litigants.
- Kelly Knaub, Justices to Hear Deportee’s Appeal of Sentencing Calculation, Law 360 (October 1st, 2015).
- Matthew Bultman, Mexican Man Pushes For Sentencing Change At High Court, Law 360 (November 20, 2015).