Should the Supreme Court correct a sentencing error where a prisoner’s criminal history is miscalculated, but the imposed sentence falls within the U.S. Sentencing Guidelines’ range?
To aid the courts in sentencing defendants, the U.S. Sentencing Guidelines recommend prison sentences based on defendants’ criminal histories. When a probation officer miscalculated convicted defendant Rosales-Mireles’s criminal history, the error bumped Rosales-Mireles into a sentencing category with a longer recommended imprisonment range. However, he ultimately received a sentence that overlapped with the range of the appropriate sentencing category. Rosales-Mireles contends that allowing such plain errors in criminal history calculations damages the fairness of the judicial process, and undermines the Guidelines’ purpose of uniform sentencing. The Government counters that requiring remand would erode courts’ discretion and impose a heavy financial burden on the Government. The Court must decide if integrity of the judiciary is better preserved by correcting a sentencing error or adhering to standard criminal procedure.
Questions as Framed for the Court by the Parties
Whether, in order to meet the standard for plain error review set forth by the Supreme Court in United States v. Olano that "[t]he Court of Appeals should correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings,’” it is necessary, as the U.S. Court of Appeals for the 5th Circuit required, that the error be one that “would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.”
In January 2010, Florencio Rosales-Mireles, a Mexican citizen, was convicted of aggravated assault in Texas state court, and was subsequently sent back to Mexico. In 2015, after illegally reentering the United States, Rosales-Mireles was again arrested in Texas. After this arrest, Rosales-Mireles entered a guilty plea for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2), in the U.S. District Court for the Western District of Texas (the “District Court”).
Pursuant to the mandate of 18 U.S.C. § 3552, one of the District Court’s probation officers used the U.S. Sentencing Guidelines (the “Guidelines”) to prepare a presentence report (the “PSR”) to calculate the recommended sentencing time for Rosales-Mireles. When completing this calculation, the probation officer counted 1 of Rosales-Mireles’s past convictions twice, causing it to add 4 criminal-history points to the calculation rather than 2. The probation officer ultimately calculated Rosales-Mireles’s total criminal-history score as 13, rather than 11, placing him in a criminal-history category of VI. This category, coupled with his current offense level of 21, produced a recommended imprisonment range of 77 to 96 months.
Though, at sentencing, Rosales-Mireles requested that the District Court depart from the calculated Guidelines range to grant a sentence of 41 months, he did not object to the double-counting of his prior conviction. Furthermore, when the District Court denied Rosales-Mireles’s request and sentenced him to 78 months in prison he did not object to the sentence. This sentence fell within the Guidelines range that would have applied if the probation officer had calculated the past convictions correctly.
After Rosales-Mireles’s sentence was imposed, however, he appealed the sentence to the Fifth Circuit Court of Appeals (the “Fifth Circuit”), arguing that it was based on an erroneous Guidelines range calculation. Because Rosales-Mireles never raised an objection to the calculation in District Court, the Fifth Circuit determined that it could only review the appeal under the plain-error standard of Rule 52 of the Federal Rules of Criminal Procedure. This standard required Rosales-Mireles to satisfy the three-pronged inquiry advanced in United States v. Olano, which asks whether 1) an error occurred, 2) the error was clear or obvious, and 3) it affected a defendant’s substantial rights. If Rosales-Mireles satisfied each of these prongs, according to Molina-Martinez v. United States, there is a fourth prong indicating that the Court of Appeals had the discretion to remedy the error if it deemed it to “seriously affect the fairness, integrity, or public reputation of judicial proceedings.”
Though the Fifth Circuit agreed that the District Court erred in its Guidelines calculation, and determined that the first three prongs of the plain-error standard were satisfied, the Fifth Circuit declined to exercise its discretion. In making its decision, the Fifth Circuit explained its view that within-Guidelines sentences are presumed reasonable, and that the only types of errors warranting reversal under the fourth prong of the plain-error standard articulated in Molina-Martinez are errors that “shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.” Because Rosales-Mireles’s original sentence was within the correct Guidelines range and was not based solely on Rosales-Mireles’s prior convictions, the Fifth Circuit determined that the presumption of reasonableness for his sentence was not rebutted and that the error did not warrant reversal under the fourth prong.
Rosales-Mireles subsequently petitioned the Supreme Court for a writ of certiorari, which the Court granted on September 28, 2017.
SHOULD A GUIDELINES MISCALCULATION SATISFY THE FOURTH PRONG OF THE PLAIN-ERROR REVIEW STANDARD IN MOST CASES?
Rosales-Mireles argues that sentencing a defendant under an incorrect Guidelines range, as in this case, normally satisfies the fourth prong of the plain-error review standard as explained in Molina-Martinez. Rosales-Mireles asserts that though the plain-error standard gives courts of appeals discretion to decide whether to correct plain errors, some errors always seriously affect the fairness, integrity, and public reputation of judicial proceedings and should be corrected in most cases. A sentence based on an erroneous Guidelines range, Rosales-Mireles contends, is one such error. Rosales-Mireles bases this contention on the fact that the sentencing Guidelines are central to judicial proceedings and, thus, leaving sentencing errors in place would, in most cases, undermine the integrity of the entire system. Rosales-Mireles argues that Congress’s mandate in 18 U.S.C. § 3742(f)(1) – that a court of appeals should remand cases for further sentencing proceedings when it determines that the sentence resulted from an incorrect use of the sentencing Guidelines – shows that Congress agrees with this contention. In addition, Rosales-Mireles argues that other courts of appeals are in virtually unanimous agreement that a Guidelines calculation error satisfies the fourth prong, and that this view is extended to situations where the error resulted in a range that was also within the correct Guidelines calculation.
In response, the Government asserts that a forfeited Guidelines calculation error does not, and should not, generally satisfy the fourth prong of plain-error review. The Government argues that interpreting the fourth prong of the plain-error review standard to mandate this would completely change the usual plain-error review process by eliminating any incentive to make timely objections and eliminating any consequences of failing to do so. The Government contends that the contemporaneous objection rule of Rule 51 of the Federal Rules of Criminal Procedure, which mandates that certain rights may be forfeited if a timely objection is not made, works with the plain-error rule to encourage litigants to pursue initial fair trials while allowing for correction of some overlooked injustices. Because of the balance struck by the two rules, the Government contends that the plain-error review standard’s fourth prong is, and should be, difficult to satisfy. Though the Supreme Court has not articulated any exact rules for when this prong should be deemed satisfied, the Government identifies guideposts that have been recognized by the Supreme Court. These guideposts include: 1) the fourth prong must be applied on a case-by-case, fact-by-fact basis; 2) the fourth prong is an independent barrier to relief and that a defendant must thus prove not only that his substantial rights were affected, but also that there was a harm to the system as a whole; 3) even though such a harm to the system may be proved, some policy interests do not warrant reversal, and, thus, the fourth prong must only be satisfied in exceptional cases; and 4) that a court of appeals’ decision about the fourth prong should be guided by the policies underlying the plain-error and contemporaneous objection rules.
WOULD A PRESUMPTION OF REMAND FOR GUIDELINES MISCALCULATIONS TAKE AWAY COURTS’ DISCRETION UNDER PLAIN-ERROR REVIEW?
Rosales-Mireles asserts that correcting Guidelines errors in most cases still allows courts to consider countervailing factors, and thus would not remove courts’ plain-error discretion. Rosales-Mireles first argues that Molina-Martinez’s directive that courts of appeals “should” exercise discretion if the fourth prong is satisfied demonstrates that the Supreme Court intended remand to be granted in most cases. In addition, Rosales-Mireles contends that court of appeals’ discretion is a discretion to decline remand only when case- and fact-specific countervailing factors weigh against it. Rosales-Mireles notes that examples of countervailing factors which would merit denial of relief for a Guidelines miscalculation include 1) when a defendant waived his right to appeal in a plea agreement and the sentence imposed does not unreasonably exceed the correct guideline range; 2) when a defendant’s sentence is already completed; and 3) when the defendant has a concurrently running sentence.
Rosales-Mireles further argues that the Fifth Circuit’s “shocks the conscience” standard ensures that courts will never exercise the discretion granted by the fourth prong. He asserts that “shocks the conscience” is a substantive due process standard that was meant to allow for very narrow scrutiny of government actions. The standard, Rosales-Mireles argues, was meant to help identify government actions deliberately depriving a person of life, liberty, or property. Because the “shocks the conscience” standard is targeted at deliberate conduct, Rosales-Mireles asserts that it is unsuited for plain-error review, which is meant to remedy inadvertent mistakes in the judicial process. Rosales-Mireles argues that the Fifth Circuit’s standard thus effectively nullifies the Supreme Court’s holding in Molina-Martinez that a defendant can ordinarily show prejudice simply by demonstrating that he received a sentence under an incorrect sentencing scheme.
The Government responds that there is no basis for Rosales-Mireles’s contention that Guidelines errors should be corrected in most cases and that creating a presumption of remand for Guidelines errors would effectively eliminate courts’ discretion under the fourth prong. The Government asserts that, though Molina-Martinez determined that Guidelines miscalculations usually satisfy the third prong of plain-error review, it also stated that satisfying the first three prongs is sufficient to get relief, but that courts of appeals maintain ultimate discretion under the fourth prong to determine whether to correct the error. This discretion, the Government argues, centers on whether the Guidelines error prejudiced, not the defendant, but the administration of justice as a whole. In making this determination, the Government contends that courts may consider 1) whether, despite the error, the sentence reflects a reasonable exercise of discretion; 2) the severity of the error in light of the sentencing as a whole; and 3) whether the defendant was given proper procedural protections to ensure the sentencing proceeding was fair. In addition, the Government contends that Rosales-Mireles’s examples of countervailing factors are all situations in which plain-error review would not be used fully, if at all, and that the argument is a pretense for ensuring that errors are corrected regardless of case-specifics.
Further, the Government agrees with Rosales-Mireles’s contention that the Fifth Circuit’s “shocks the conscience” standard is an inaccurate elaboration on the fourth plain-error prong. The Government concedes that this standard is usually meant to target intentionally injurious conduct and that it is an inappropriate and impossible standard for correcting inadvertent errors under plain-error review. Yet, the Government contends that the Fifth Circuit’s decision to affirm Rosales-Mireles’s sentence was proper under the appropriate fourth plain-error-prong analysis. To support this argument, the Government asserts that 1) the sentence reflects a reasonable exercise of discretion because the nature and circumstances of Rosales-Mireles’s offense and history were serious; 2) the error was not severe in light of the sentencing as a whole because the sentence was selected based on consideration of many sentencing factors; and 3) proper procedural protections ensured a fair proceeding because Rosales-Mireles was given many weeks to review the PSR and had further opportunity to raise concerns at the sentencing hearing.
IS THE INTEGRITY OF THE COURT SYSTEM UNDERMINED OR UPHELD BY REFUSING TO CORRECT A SENTENCING ERROR?
Rosales-Mireles contends that the court’s failure to correct its mistake tarnishes its reputation to the public because the court is choosing to keep an individual in prison rather than admit an error. Rosales-Mireles argues that any additional jail time is not only constitutionally impermissible, but also has grave repercussions for prisoners, including damage to their careers and reputations. support of Rosales-Mireles, the National Association of Criminal Defense Lawyers (“NACDL”) and other national nonprofits add that inappropriately lengthy prison sentences also harm these prisoners’ families, forcing them to reschedule important events and miss their loved ones at key milestones. NACDL maintains that even seemingly trivial extra jail time has these grievous consequences. Resentencing, Rosales-Mireles claims, would therefore protect the integrity of the judicial system because the public would have greater esteem for judges who respect prisoners’ rights.
The Government counters that the court’s integrity is better preserved by affording a prisoner the standard procedural protections. Here, the Government continues, Rosales-Mireles was at fault for failing to identify the error originally, and resentencing would unfairly reward that mistake. Moreover, the Government claims that, because there are often minor errors in calculating the Guidelines sentencing ranges, a reasonable sentence should only be revisited in an “exceptional circumstance.” Further, the Government maintains that the harms of imprisonment are implicated in all criminal cases, and that while liberty interests are significant, they do not justify creating exceptions to standard court procedures.
DOES CORRECTING AN ERROR FURTHER THE GUIDELINES’ PURPOSE IN ACHIEVING UNIFORM SENTENCING?
According to Rosales-Mireles, the Guidelines serve as a framework for federal sentencing proceedings, and a basis for the ultimate sentence. Rosales-Mireles asserts that miscalculations are too often unnoticed and typically result in longer sentences. Correcting such mistakes, Rosales-Mireles argues, promotes the Guidelines’ overarching purpose of ensuring uniform and proportionate sentences. Furthermore, there are systemic ramifications of uncorrected Guidelines errors: agencies collect sentencing data informed by the Guidelines to classify prisoners, structure prisoners’ releases, and make recommendations to Congress. Rosales-Mireles suggests that if sentencing errors are not corrected, the criminal justice system will be implementing policy based on erroneous information.
The Government argues that the Guidelines are far less determinative than Rosales-Mireles implies. The Government maintains that the district courts are not rigidly applying the Guidelines but have the discretion to consider multiple factors in addition to the Guidelines in making their sentencing determinations, including the need to impose a fair punishment and protect the public from future crimes. Additionally, the Government disputes Rosales-Mireles’s proffered overarching purpose of the Guidelines. Rather, the Government insists that there is no evidence that Congress was so concerned with sentencing disparities that it sought to modify plain error rules and construct a formulaic approach. Regardless, the Government continues, when judges exercise discretion in criminal cases, any error creates a similar risk of disparate outcomes, but the courts do not provide all affected prisoners with the opportunity for resentencing.
IS CORRECTING AN ERROR ON REMAND COST-EFFECTIVE?
Rosales-Mireles claims that in most instances, resentencing is a “simple task,” and certainly not as expensive as a retrial. Indeed, Rosales-Mireles notes that remand for resentencing is ultimately less costly. Rosales-Mireles points out that there are many expenses associated with imprisonment, and despite the upfront costs of resentencing, shorter prison terms overall save money.
The Government finds such remands wasteful. According to the Government, resentencing is often complicated and costly. Resentencing places myriad burdens on the court, the Government notes, adding to their overfull dockets and forcing them to reconvene all parties—including prisoners who must be transported to court once again. In addition, the Government contends that there is the potential for appeals from the resentencing, continuing a cycle of waste and inefficiency in defiance of the entire point of plain error rules. The Government notes that this misuse of resources could be avoided if the parties made proper objections during the initial trial.
- Families Against Mandatory Minimums, Rosales-Mireles v. United States, (n.d.).
- Jeffrey L. Lowry, Plain Error Rule—Clarifying Plain Error Analysis Under Rule 52(b) of the Federal Rules of Criminal Procedure, J. of Crim. L. & Criminology (Winter 1994).
- Stephen A. Saltzburg, Molina-Martinez v. United States: When Guidelines Affect Substantive Rights, George Wash. L. Rev. (Apr. 25, 2016).