Friday, May 20, 2005

Plain Error Under Booker Likely Headed to the Supreme Court

Courtesy of Doug Berman, who is enjoying "Revenge of the Sith" this evening, the Solicitor General's Office submitted a response to a petition for certiorari in Rodriguez v. United States (here) urging the Supreme Court to review the proper application of the plain error rule to Booker sentencing cases in which the defendant is forced to argue plain error because he or she did not raise the sentencing issue in the district court.  As Doug has admirably traced out on Sentencing Law & Policy (in posts too numerous to link -- check here for the Weekly Roundup), the circuit courts have essentially devolved into a three-way split, with an en banc in the Ninth Circuit keeping that court out of the game.  Approaches range from the Seventh Circuit's almost automatic limited remand to the Eleventh Circuit's "over our dead bodies" stand. The government's position on the issue is that "despite the likely limited effect of a decision by this Court in this case, further review is warranted.  There is a clear and deep multi-circuit conflict on the proper analysis of plain Booker error."

While the government may prefer the Eleventh Circuit approach, I doubt it will be particularly troubled by adoption of any of the three approaches taken by the circuits.  Moreover, it's unlikely an additional plain error opinion by the Court will have any real effect on Rule 52(b), given the decisions in Olano and Johnson have restricted the scope of the plain error doctrine sufficiently so that it is very difficult to ever get a reversal on plain error grounds, a position favorable to the government.  I think the interesting part of the case is the second question presented, which may be the more important one for the government:

2. Whether such a defendant, who received a sentence within the applicable Guidelines sentencing range, can meet his burden to show that the error under Booker seriously affected the fairness, integrity, or public reputation of judicial proceedings, as is required to obtain relief under the plain-error rule.

This is the fourth-step in the plain error analysis -- the "no-harm-no-foul" approach for you basketball fans -- that permits a court to refrain from correcting an error if it decides there is insufficient harm to the system from leaving the error uncorrected.  I wonder if the government will use the case to seek a reaffirmation from the court (at least the Breyer fivesome) of the importance of the Guidelines in determining the sentence, even in their "advisory" state.  Such a statement could give aid to legislative efforts (i.e. H.R. 1528) to push the Guidelines back closer to the mandatory range by restricting downward departures, restoring some of the power prosecutors had under the Guidelines pre-Booker.  Moreover, statements emphasizing the importance of the Guidelines strengthen the argument for government appeals in cases involving downward departures from Guidelines sentences.

While the Court hardly needs to issue another plain error case, I think most agree with Doug's assessment that the Booker split is simply unfair because of the inconsistency between the circuits.(ph)

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