Monday, February 7, 2005

Courts Scatter Over Plain Error After Booker

As discussed extensively by Doug Berman on the Sentencing Law & Policy blog (here and here), the question regarding how closely the "plain error" review will be undertaken by appellate courts in light of Booker is still very much up for grabs.  Doug discusses the division in the Sixth Circuit between cases that find plain error almost as a matter of course and a decision that finds no plain error because the sentence was within the range that the judge likely would have given anyway (what Doug calls the "process versus outcomes" distinction).

Two decisions that involve more traditional white collar violations that are emblematic of this split are U.S. v. Bruce (6th Cir.) and U.S. v. Hughes (4th Cir.).  Bruce involved a guilty plea to bank fraud and illegal access device charges involving fake credit cards.  Hughes was a bankruptcy fraud case involving the transfer of assets without disclosure to the trustee.  Plain error analysis requires that a defendant prove (1) an error that is (2) plain and (3) affects substantial rights (i.e. prejudice), and then a discretionary fourth step in which the appellate court will correct a plain error only if it "seriously affects the fairness, integrity, or public reputation of judicial proceedings." (Main cases here are Johnson v. U.S., 520 U.S. 461 (1997) and U.S. v. Olano (507 U.S. 725 (1993)). This fourth step is where the Booker appeals will get hung up in cases where the sentencing took place before the Supreme Court's decision in Blakely.  Because no defense counsel (or district judges) knew Blakely was coming, much less Booker, no one knew to make the requisite objection to the mandatory nature of the Sentencing Guidelines to avoid plain error. This prong has been used by courts to review the evidence and outcome in white collar cases, perhaps most notably in the area of Gaudin-error involving instructions on the materiality element in any type of fraud prosecution.  Few convictions were reversed for this type of error.

The Sixth Circuit panel in Bruce took the outcome (or instrumental) approach to plain error, finding that the fourth prong had not been met because the district judge likely would have come out the same way.  The decision states:

Two other considerations buttress our conclusion on the fourth prong of the plain error standard. First, we view it as unlikely that the district court would have imposed a lower sentence if it had realized that the guidelines are advisory and not mandatory. Exercising its more limited discretion under the mandatory regime, the district court elected to sentence Defendant at the top of the applicable 27-to-33-month guideline range. Surely, if the district court was not inclined to impose a shorter sentence despite its power to do so within the guidelines’ mandatory sentencing scheme, it would not have elected to reduce Defendant’s sentence under a more open-ended advisory system does not distinguish between offense-related conduct and other sentence enhancing facts, we cannot help but believe that a judge’s findings concerning obstructive conduct toward a probation officer during a court-ordered and judicially-supervised presentence investigation do not trigger the same "fairness" concerns as, say, a judge’s determination that a defendant brandished a weapon during the commission of a crime.

Bruce is written by U.S. District Judge Rosen, who was sitting on the panel by designation. He was appointed to the bench in 1989, and has spent his career working under the Guidelines, and I suspect is fairly accepting of the approach taken by them. The Fourth Circuit decision in Hughes takes a different approach toward the fourth prong of the plain error analysis, stating (in a footnote, by the way):

In determining whether the exercise of our discretion is warranted, it is not enough for us to say that the sentence imposed by the district court is reasonable irrespective of the error. The fact remains that a sentence has yet to be imposed under a regime in which the guidelines are treated as advisory. To leave standing this sentence simply because it may happen to fall within the range of reasonableness unquestionably impugns the fairness, integrity, or public reputation of judicial proceedings.

Chief Judge Wilkins, the first Chair of the Federal Sentencing Commission, is the author of Hughes, and his approach seems to take a blanket view of all challenges to sentencings after Booker that are subject to plain error: reversal and resentencing.  That seems to run counter to the usual plain error analysis, which reverses a decision because of the error only in the rare case.  This looks more like an automatic (or structural) error approach that does not involve the usual plain error analysis.

White collar crime cases usually involve a range of sentencing determinations beyond just the conviction, such as role in the offense, abuse of trust, use of a special skill, and most importantly in economic crimes the loss (actual v. potential, etc.). If the circuit courts adopt the automatic review approach of Hughes, then a number of sentences in the past couple years (think about the Olis sentencing to 24 years imprisonment) in cases on appeal will be subject to resentencing. I wonder whether the circuits want to open up that many cases to resentencing.  At the same time, if the approach taken by Bruce in the Sixth Circuit (which cannot seem to even decide on a unified analysis) is followed, then this will be Gaudin-error all over again: few sentences reversed. (ph)

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