Can a Guideline Mistake Be Fixed on Appeal If Nobody Objected?

If the judge made an obvious mistake in figuring your guideline range, an appeals court should usually fix it, even if nobody objected at sentencing. The Supreme Court so held in June 2018 in Rosales-Mireles v. United States, 585 U.S. 129 (2018). In doing so, it reversed the Fifth Circuit, which had read the plain error rule so narrowly that the answer would usually have been no.

U.S. Supreme Court : Plain Error Rule

What happened in the case

Florencio Rosales-Mireles, a Mexican citizen, pleaded guilty to illegally reentering the United States. It was then up to the federal district court to decide his sentence.

Under 18 U.S.C. § 3553(a), a federal judge must impose a sentence that is "sufficient, but not greater than necessary" to meet the four goals of sentencing: punishment (retribution), deterrence, protecting the public (incapacitation), and rehabilitation. The judge has discretion but works within a framework Congress set up, and the federal sentencing guidelines are part of that framework. The judge must start by correctly calculating the guideline range. That can be complex, but it helps keep sentences uniform, predictable, and fair across the country.

In his case, the presentence report (the report the probation office writes before sentencing) counted one of his prior convictions twice. Because of that mistake, the judge used a range of 77 to 96 months. The correct range was 70 to 87 months.

Nobody caught the error, and he did not object. The judge denied his request for a downward departure and sentenced him to 78 months (6.5 years). He raised the mistake for the first time on appeal.

The plain error test

When you did not object in the trial court, an appeals court reviews only for "plain error." Under United States v. Olano (1993), you must show:

1. There was an error that you did not knowingly give up.
2. The error was plain, meaning clear or obvious.
3. The error affected your substantial rights. For a sentence, that usually means a reasonable chance the sentence would have been different.
4. The error seriously affects the fairness, integrity, or public reputation of court proceedings.

What the Fifth Circuit did

The Fifth Circuit agreed the first three parts were met: he did not knowingly give up the objection, the error was obvious, and his sentence likely would have been different without it. But it said the fourth part was not met.

That ruling alone might have been open to debate, because the 78-month sentence fell inside both the wrong range and the correct range. But in the author's view, the Fifth Circuit went a step further and tried to change the plain error standard itself.

It said an error meets the fourth part only if it would "shock the conscience of the common man," serve as a "powerful indictment" of the justice system, or seriously call into question the judge's competence or integrity. Language like that made it much harder to get a sentencing mistake fixed on appeal.

What the Supreme Court decided

In a 7-2 opinion by Justice Sotomayor, the Supreme Court reversed. It held that the Fifth Circuit's "shock the conscience" test was too strict and had no basis in the rule. The Court made three points:

• When it decided Olano in 1993, the Court had considered a stricter test for the fourth part, much like the Fifth Circuit's, and rejected it.
• The Fifth Circuit's test conflicted with how other federal appeals courts read the fourth part.
• The test did not come from the federal rule (Rule 52(b)) that lets defendants raise unobjected-to errors in the first place.

The Court held that a plain guidelines error that affects your substantial rights will usually meet the fourth part, so in the ordinary case the appeals court should correct it. That is true even if the sentence falls inside both the wrong range and the correct range. Double-counting a prior conviction affected his substantial rights and seriously affected the fairness, integrity, and public reputation of the proceedings.

Justice Thomas, joined by Justice Alito, dissented. They would not have required the error to be corrected. The dissent described Mr. Rosales-Mireles's past violent crimes, which were not the crime at issue in the case, a focus the author saw as out of place in a legal discussion about the right Olano standard.

Why this matters

This case helps federal defendants in several ways:

• It makes clear that appeals courts should correct obvious sentencing errors.
• It gives a good general explanation of what a federal judge must do at sentencing.
• It shows, as the author saw it, a conservative court, the Fifth Circuit, trying to change a legal standard to support its own decision.

Rosales-Mireles is worth reading. If your guideline range was calculated wrong, you may still be able to fix it on appeal, even if your lawyer did not object at sentencing. Read more about Supreme Court cases from the October 2017 term.

Timing matters. A notice of appeal in a federal criminal case generally must be filed within 14 days after the judgment is entered (Federal Rule of Appellate Procedure 4(b)(1)(A)). Even better, catch the mistake before sentencing: the parties have 14 days after receiving the presentence report to object in writing (Federal Rule of Criminal Procedure 32(f)(1)).

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.