Oops: When Does a Plain Error in Calculating a Defendant’s Sentencing Guidelines Range Warrant Resentencing?

Oops: When Does a Plain Error in Calculating a Defendant’s Sentencing Guidelines Range Warrant Resentencing?

Legal Sidebari

Oops: When Does a Plain Error in Calculating
a Defendant’s Sentencing Guidelines Range
Warrant Resentencing?
August 8, 2018
In the federal criminal justice system, not all errors justify relief. Notably, under Federal Rule of Criminal
Procedure 52(b), federal courts may, but are not required to, correct an error if a defendant failed to notify
the district court about the error. (These kinds of forfeited errors, like failing to object when an error is
made, are generally called “plain errors.”) However, the Supreme Court has opined that an appellate court
should exercise its discretion to correct an unpreserved error “if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” For example, under that standard a new trial
unlikely would be warranted if defense counsel neglected to object to a prosecutor’s improper leading
question. But what about if defense counsel doesn’t point out an error in the district court’s calculation of
the defendant’s U.S. Sentencing Guidelines (Guidelines) range? Rosales-Mireles v. United States, argued
during the Supreme Court’s October 2017 term, addressed that question. Specifically, the case evaluated
the scope of an appellate court’s discretion to order resentencing when the district court makes a plain
error in calculating a defendant’s Guidelines range. In a 7-2 ruling authored by Justice Sotomayor, the
Court held that “in the ordinary case,” resentencing will be warranted.
Guidelines Calculation - Overview: Before sentencing a defendant, the district court must calculate the
defendant’s Guidelines range. (This is generally done with the aid of a presentence report prepared by the
U.S. Probation Office.) Although the Guidelines are only advisory, the court must “remain cognizant of
them throughout the sentencing process” and explain the reasons for deviating from them.
A defendant’s Guidelines range is determined by calculating a defendant’s “offense level” and “criminal
history score.” The offense level is based on the particular crime committed, plus any aggravating or
mitigating factors. The criminal history score takes into account the defendant’s past criminal
transgressions. A court commits a procedural error when it incorrectly calculates the Guidelines.
Plain Error Standard: Federal Rule of Criminal Procedure 52(b) permits federal appellate courts to
correct a “plain error” that was not brought to the district court’s attention. In United States v. Olano, the
Supreme Court outlined three requirements for appellate courts to exercise this discretion: (1) the error
must be “plain,” or obvious, under current law; (2) the right to contest the error could not have been
intentionally abandoned; and (3) the error must have affected the defendant’s substantial rights, for
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example, by affecting the outcome of the district court proceedings. If those three elements are met, an
appellate court “should exercise its discretion to correct the forfeited error if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Rosales-Mireles: Rosales-Mireles v. United States involved the sentencing of Florencio Rosales-Mireles
for unlawful reentry into the United States. In calculating his criminal history score, the probation office
counted a 2009 conviction twice, resulting in an erroneous score of 13 and placement in criminal history
category VI—the highest category. That score, combined with his offense level of 21, produced a
Guidelines range of 77 to 96 months’ imprisonment. Had Rosales-Mireles’s criminal history been
correctly calculated, his Guidelines range would have been 70 to 87 months. The district court imposed a
78-month sentence—a sentence that fell within both the incorrect and correct Guidelines ranges.
The error went unnoticed until Rosales-Mireles sought to appeal his sentence. The U.S. Court of Appeals
for the Fifth Circuit (Fifth Circuit) declined to exercise its discretion to remedy the error because circuit
precedent limited that discretion to sentencing 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.” And the court concluded that a sentence like Rosales-
Mireles’s, which falls within the properly calculated Guidelines range notwithstanding a Guidelines’
calculation error, does not “shock the conscience.”
Because the Fifth Circuit stood alone among its sister courts in applying that standard to the final element
of the test outlined in Olano, the Supreme Court granted certiorari to resolve the circuit split. The Court
rejected the Fifth Circuit’s formulation of plain error review, describing its approach as “unduly
restrictive.” The Court recounted that the “shock the conscience” standard is typically invoked to assess
whether the government has committed a due process violation. And generally, the Court elaborated,
conscience-shocking behavior is the result of intentional, or deliberate indifference to, conduct intended
to injure a person in a manner that cannot be justified by any governmental interest. But, the Court
opined, the plain-error standard has never been limited to such intentional conduct. Rather, the Court
reminded, it has “repeatedly reversed judgments for plain error on the basis of inadvertent or
unintentional errors.”
Having resolved that narrow issue certified for argument, the Supreme Court opined further that “[a] plain
Guidelines error that affects a defendant’s substantial rights is precisely the type of error that ordinarily
warrants relief under Rule 52(b).” The Court reasoned that “[t]he risk of unnecessary deprivation of
liberty”—in the form of a longer prison sentence—“particularly undermines the fairness, integrity, or
public reputation of judicial proceedings in the context of a plain Guidelines error because of the role the
district court plays in calculating the range and the relative ease of correcting the error.” It is the court that
errs when miscalculating the Guidelines, the Court emphasized. With that in mind, the Court declared—
borrowing from an opinion authored by then-Judge Gorsuch when he sat on the U.S. Court of Appeals for
the Tenth Circuit—“what reasonable citizen wouldn’t bear a rightly diminished view of the judicial
process and its integrity if courts refused to correct obvious errors of their own devise that threaten to
require individuals to linger longer in federal prison the law demand?” Still, the Court cautioned that
relief in such circumstances is not automatic, and unspecified “countervailing factors” way warrant an
appellate court, in an extraordinary case, to decline to exercise its discretion to correct a plain Guidelines
error.
In dissent, Justice Thomas, joined by Justice Alito, criticized the majority opinion for diluting Rule
52(b)’s “demanding standard.” In his view, the majority has created a rebuttable presumption that plain
Guidelines errors satisfy Rule 52(b). And because the majority did not discuss what countervailing factors
might not warrant resentencing when a Guidelines error is made, Justice Thomas asserted that the
discretionary element of plain-error review will be “‘illusory’ in most Guidelines cases.”

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Conclusion: Rosales-Mireles is the most recent elaboration of Rule 52(b) in a series of Supreme Court
rulings interpreting how appellate courts may exercise the discretion Congress has authorized. Going
forward, the appellate courts may need to determine what “countervailing factors” will make a case so
atypical such that resentencing would not be warranted. Otherwise, Rosales-Mireles directs the appellate
courts to order resentencing when the district court plainly erred in calculating the defendant’s Guidelines
range. Should Congress seek to cabin or expand Rule 52(b)’s discretion, it could amend the rule.

Author Information

Sarah Herman Peck

Legislative Attorney

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