Is a criminal defendant required to formally object after being sentenced in order to receive reasonableness review on appeal?
This case asks the Supreme Court to consider whether a formal objection at sentencing is necessary for criminal defendants to receive reasonableness review of the length of their sentence upon appeal. Gonzalo Holguin-Hernandez argues that Federal Rule of Criminal Procedure 51 (“Rule 51”) only requires defense counsel to argue prior to sentencing that a certain sentence would be unreasonable, thereby rendering a formal post-sentencing objection unnecessary. The United States agrees and also argues against the Fifth Circuit’s requirement of a formal post-sentence objection. The Court appointed an Amicus to brief the opposing side of the issue. Amicus argues that both Petitioner and Respondent misinterpret Rule 51, and that defendants must clearly state their objection and its grounds to preserve an argument for reasonableness review on appeal. The outcome of this case has implications for how clearly defendants need to articulate their objections to a court’s sentence and for the consistency of court procedure across criminal and civil cases.
Questions as Framed for the Court by the Parties
Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.
In June 2016, the U.S. District Court for the Western District of Texas (the “District Court”) convicted Gonzalo Holguin-Hernandez for possession of marijuana with intent to distribute, and sentenced to 24 months in prison, which would be followed by two years of supervised release. Brief for Petitioner, Gonzalo Holguin-Hernandez at 4. After serving his prison sentence and while on supervised release, Holguin-Hernandez was arrested and charged with aiding and abetting the possession of marijuana with intent to distribute. Id. at 5. Holguin-Hernandez pleaded guilty and was sentenced to 60 months imprisonment. Id. The District Court also granted the United States’ petition to revoke Holguin-Hernandez’s supervised release. Id.
The District Court concluded that, according to the sentencing guidelines, 12 to 18 months imprisonment would be an appropriate range of punishment. Id. Holguin-Hernandez’s defense counsel asked the District Court to consider lowering this sentence because it was too harsh. Id. In support, defense counsel claimed that a cartel threatened Holguin-Hernandez into carrying the drugs and that there was no value in sentencing him to 12 months in prison in addition to the 60-month sentence. Id. at 6. The District Court denied this request and sentenced Holguin-Hernandez to 12 months of additional imprisonment for his supervised-release violation. Id. When the District Court announced this sentence, the defense attorney did not formally object to its reasonableness. Id. at 6–7.
Holguin-Hernandez appealed to the United States Court of Appeals for the Fifth Circuit (the “Fifth Circuit”), arguing that his 12-month sentence was unreasonable. Id. at 7. He conceded that he did not object to the reasonableness of the sentence when the District Court announced it, but argued that doing so was nevertheless unnecessary because the sentence itself was substantively unreasonable. Id.
The Fifth Circuit concluded that it could review the sentence only for plain error because Holguin-Hernandez failed to properly object to the sentence. United States v. Holguin-Hernandez at 2. The Fifth Circuit did not find any plain error in the District Court’s sentence and affirmed it. Id. Holguin-Hernandez appealed to the United States Supreme Court which granted certiorari on June 3, 2019. Because the United States Government agreed with Holguin-Hernandez’s position, the Court appointed an Amicus to represent the opposing side.
INTERPRETING FEDERAL RULE OF CRIMINAL PROCEDURE 51
Petitioner Holguin-Hernandez argues that requiring defendants to object to a sentence after a district court’s ruling when they have already argued for a shorter sentence is contrary to Federal Rule of Criminal Procedure 51. Brief for Petitioner, Gonzalo Holguin-Hernandez at 10. Holguin-Hernandez explains that the Supreme Court generally interprets and enforces statutory terms according to their ordinary meaning. Id. He contends that Rule 51 clearly states that a party can preserve its objection by informing the court of an action it believes should be taken “when the court ruling is made or sought.” Id. According to Holguin-Hernandez, the word “or” in the text has a clear purpose: a defendant can preserve an objection either by objecting to a sentence after it is made or by asking the court to set a certain sentence before the sentencing phase. Id. at 12. Here, Holguin-Hernandez argued for a specific sentence under the requirements of 18 U.S.C. § 3553(a) prior to the district court’s sentencing. Holguin-Hernandez asserts that doing so informed the court of the action he wished it to take, thus preserving his claim of error for appeal under Rule 51. Id. at 12.
The Court-appointed Amicus counters that the Court should interpret Rule 51 and Rule 46 of the Federal Rules of Civil Procedure analogously because the advisory committee’s note to Rule 51’s adoption provides that they are “practically identical.” Brief of Amicus Curiae K. Winn Allen, in Support of the Fifth Circuit at 14. The Amicus argues that while Rule 51 does not expressly require a party to state the grounds supporting its request or objection, Rule 46 does contain this requirement, and therefore, Rule 51 should also contain such a requirement. Id. at 14. Under this reading, asserts the Amicus, to preserve an objection to a sentence, a party must not simply request a different sentence length, but must both explain that it is entitled to a different sentence and state the specific facts that support this explanation. Id. at 15. While generally this is most likely to be done in a post-sentencing objection, Amicus argues that a defendant could still preserve his claim of error by asking for a specific sentence prior to sentencing, but the defendant’s argument must also include an argument that a certain sentence would be unreasonable, and the grounds that support this argument. Id. at 30.
PUTTING THE TRIAL COURT ON NOTICE
Respondent United States, writing in support of vacatur, agrees with Holguin-Hernandez on his interpretation of Rule 51, asserting that a defendant preserves his substantive challenge to a sentence by initially arguing for a shorter one. Brief for Respondent, United States at 15. The United States argues that, once a defendant asks a court for a lower sentence, that court becomes on notice that the defendant views any longer sentence as unnecessary, and the objection should therefore be preserved for appellate review. Brief for Respondent at 22. While the United States concedes that, had the objection here been about a purely procedural issue, like a miscalculation based on the Federal Sentencing Guidelines, the defendant would have had to object after sentencing, but that does not apply here where the objection was based on a substantive issue of which the court was already aware. Id. at 20. Additionally, the United States argues that the Fifth Circuit’s ruling—that defendants must specifically object to a sentence’s reasonableness—confuses the very issue: reasonableness is the standard of review for the appellate court, while the error asserted by Holguin-Hernandez is that the district court did not adequately consider his circumstances. Id. at 23. A defendant need only notify the court that he disagrees with its ruling; he does not also need to tell the court that their ruling will fail under the appellate standard of review. Id. at 25.
Amicus counters that almost every defendant will ask for a shorter sentence because such a sentence is a preferable outcome. Brief of K. Winn Allen at 21. The Amicus adds that the text of Section 3553(a) requires the court to issue “a sentence sufficient, but not greater than necessary,” which creates a range of reasonable sentences. Id. at 15. The Amicus emphasizes that a request for a shorter sentence prior to sentencing does not adequately put the court on notice that a defendant finds the sentence given unreasonable—just that the defendant would prefer a shorter one within the range of reasonable sentences. Id. at 21–22. The Amicus contends that a trial court is only put on notice when it has been given specific grounds in support of an argument, allowing the court the opportunity to determine for itself whether a sentence exceeds the requirements of Section 3553(a). Id. at 28. According to the Amicus, presenting the issue of reasonableness for the first time on appeal would deprive the district court of the opportunity to review the issue on its own, and use their “institutional advantage” to make these decisions prior to consideration by the appellate court. Id. at 19–20, 26.
SUBSTANTIAL REASONABLENESS OF PETITIONER’S SENTENCE
Holguin-Hernandez argues that, because the United States defends the reasonableness of his sentence, the Court may consider the question of whether his sentence is reasonable and find his sentence unreasonable. Reply Brief for Petitioner at 17. At sentencing, the district court stated that the 12-month revocation sentence for his original crime was necessary because the original offense had to “mean something.” Id. at 17. Holguin-Hernandez argues that this is unnecessary: the 60-month sentence he received for his second crime was a mandatory minimum, which the court could have used its discretion to set aside had he not been a repeat offender, and given him a sentence in a range of 30 to 37 months. Id. at 18. Because of his original crime he received a longer sentence already, rendering the additional 12 months added by the court unnecessary and unreasonable, which he says allows the court to overturn his sentence. Id.
The United States, while agreeing that the standard to apply is reasonableness as opposed to plain error, argues that the sentence he received should survive under a reasonableness review. Brief of Respondent at 32. It explains that Holguin-Hernandez committed a breach of trust while on supervised release which should be accounted for, and it did so by applying the lowest sentence in the range of sentences recommend by the Guidelines. Id. at 32–33. This, the United States argues, is a reasonable sentence given the circumstances, and the sentence should be affirmed. Id.
Amicus entirely rejects the assertion that Holguin-Hernandez is entitled to any standard of review other than the plain-error review that the Fifth Circuit has already applied. Brief of K. Winn Allen at 33–34. Even if the Court reviews under a more lenient reasonableness standard, Amicus argues, Holguin-Hernandez would still not be entitled to relief as his sentence was reasonable. Id. The Amicus explains that Holguin-Hernandez argued on appeal that his sentence was unreasonable because he posed no danger to the public, but he did not raise this argument in the trial court, and thus the appellate court reviewed his sentence only for plain error. Id. Therefore, the Amicus argues that the Fifth Circuit was correct to find no plain error here. Id. The Amicus also acknowledges that there was no need, from a deterrence standpoint, to add the additional 12 months to the already existing 60-month sentence, especially since Holguin-Hernandez understood that, given his status as a repeat offender, a third conviction could lead to life in prison. Id. at 35. Despite this concession, Amicus argues that it was not preserved for appeal and thus the plain error review was proper. Id. at 35–36. Even if Holguin-Hernandez had preserved the argument, Amicus argues, it still would have failed under a reasonableness review. Id. 35–36. Because the Fifth Circuit held that there was no “clear or obvious error” as the sentence was both within the Guidelines range and followed policy statements, this is enough, Amicus states, for the Fifth Circuit to also find that the district court did not abuse its discretion under a reasonableness standard. Id. at 35–37.
A NECESSARY STEP TO AVOID NEEDLESS CONFUSION
The National Association of Criminal Defense Lawyers and the National Association of Federal Defenders (“NACDL”), in support of Holguin-Hernandez, argue that, rather than improve the sentencing process, requiring a post-sentence objection would “impose an empty ritual that is both redundant and futile.” Brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders (“NACDL”), in Support of Petitioner at 9. NACDL reasons that once a defense attorney has objected to an unreasonable sentence, an additional post-sentence objection would add no new information necessary for appeal. See id. at 9–10. To show the lack of its practical value, NACDL cites several examples of defense attorneys attempting to raise post-sentencing objections in order to ensure their arguments are preserved for appeal; in each example, NACDL argues, the district judge seemed confused or annoyed at the redundant nature of the post-sentencing objection. See id. at 10–11. Finally, NACDL explains that such a formalistic requirement could unfairly subject several unreasonable sentences to plain error review on appeal, which is a more difficult standard for defendants. See id. at 16.
The Court-appointed Amicus, in support of the judgment below, argues that asking a defendant to explain why their sentence is unreasonable, even if they have raised their concerns earlier, is not a mere formality; rather, it would help ensure that the district court has an opportunity to consider the specific arguments defendant has before they are reviewed by an appellate court. See Brief for Amicus Curiae K. Winn Allen, in Support of Judgment Below at 29. Without the post-sentencing objection requirement, Amicus suggests, a defendant would be able to merely state his disagreement with the sentence without any supporting facts and nonetheless be permitted to raise, for the first time, any arguments about the length of a sentence on appeal. See id. at 23. Indeed, Amicus continues, forcing the defendant to clearly articulate his precise argument would allow the district court—the court most familiar with the facts of the case, and therefore in the best position to evaluate the argument—an opportunity to fully and carefully consider what the defendant has to say. See id. at 12. Additionally, Amicus argues, it would force defendants to assert their objection in a timely manner, thereby allowing the trial court to consider it in the first instance and preventing defendants from ‘sandbagging’ the court—withholding his objection and thereby preventing the court from evaluating the argument and raising it on appeal only if he received an unfavorable sentence. Id.
CONSISTENT PROCEDURE IN CRIMINAL AND CIVIL CASES
The Amicus notes that, in civil cases where defendants want to appeal the amount of damages imposed, courts require them to make after-the-fact objections to preserve their arguments for appeal. See Brief of K. Winn Allen at 31–32. Even when a defendant has already argued for no damages or lower damages, Amicus explains, the defendant must still formally file a post-trial motion in order to challenge the excessiveness of the damages award on appeal. Id. at 32. Additionally, Amicus notes that Rule 46 of the Federal Rule of Civil Procedure is the civil-equivalent of Rule 51 of the Federal Rules of Criminal Procedure. Id. at 14–15. Rule 46 requires a party to identify supporting grounds for both their objections to past action as well as requests for future action. Id. Therefore, Amicus argues, if the decision below is reversed, Rule 51 and Rule 46 would function differently, thereby creating needless inconsistencies between criminal and civil cases with no compensating benefits; for example, Rule 51 and Rule 46 both require a party to (1) identify their argument, and (2) list the specific facts they have in support, so treating the two rules’ differently would be unnecessarily confusing. See id.
NACDL contends that, when the Advisory Committee proposed Rule 51, they purposely left out any formalistic requirements of post-sentencing objections. Brief of NACDL at 8–9. NACDL argues that the Advisory Committee aimed to follow the common-sense approach that recognized that defense attorneys need only make their objections known to the court once because that would give the trial judge sufficient opportunity to weight the arguments; requiring more would place “form over substance.” See id. at 9. Holguin-Hernandez adds that in several civil law contexts, such as challenges to attorney’s fees or sanctions, an attorney need not argue the particularities that the Fifth Circuit held were required. Reply Brief of Petitioner at 11–12. Rather than maintain uniformity, Holguin-Hernandez explains, the ruling below could instead “upend all of these long-settled understandings” and result in “sweeping changes” across criminal and civil cases. Id. at 12.
- Carlton Fields, Sylvia Walbolt, Roben West: Form Over Substance? High Court Agrees to Take a Look at an Old Fifth Circuit Rule Requiring Formal Objection, JDSupra (June 12, 2019).
- Jimmy Hoover: 5th Circ.’s Appeal Rule Finally Earns Top Court Review, Law360 (June 3, 2019).
- Jordan S. Rubin: High Court Takes Up Sentencing Appeal Objection Issue, Bloomberg Law (June 3, 2019).