Case No. 16-9493 | 5th Cir. Decision
Criminal defendants who fail to timely object to errors at trial face a heavy lift in convincing a court on appeal that the error warrants reversal. The question in Rosales-Mireles is whether a forfeited error in computing the defendant’s sentence should give rise to a presumption that the defendant can carry that burden.
Florencio Rosales-Mireles, a Mexican citizen illegally present in the United States, was deported after being convicted of an assault. He waded across the Rio Grande back into the United States shortly thereafter, and following his apprehension pleaded guilty to illegal reentry into the United States. The Probation Office calculated a sentencing range between 77 and 96 months. Unnoticed by either party, however, the presentencing report double-counted one of Rosales-Mireles’s prior convictions; a proper calculation would have resulted in a sentencing range between 70 and 87 months. The district court sentenced Rosales-Mireles to 78 months.
The Fifth Circuit affirmed the sentencing, finding that the error did not merit reversal under the “plain error” standard applicable to unpreserved errors. In United States v. Olano, 507 U.S. 725 (1993), the Supreme Court laid out a four-prong test for courts to apply on plain-error review. Applying the first three prongs, a court must find that there was an error, that the error was plain, and that the error affected the defendant’s substantial rights. If a court finds that the error satisfies all three of those prongs—as the parties agree the error in Rosales-Mireles’s case does—a court should correct the error if failure to do so “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” 507 U.S. at 736. The Fifth Circuit interpreted the fourth prong to mean that a court should reverse for plain error only if the error “shock[s] the conscience of the common man, serve[s] as a powerful indictment against our system of justice, or seriously call[s] into question the competence or integrity of the district judge.” United States v. Rosales-Mireles, 850 F.3d 246, 250 (5th Cir. 2017) (quoting United States v. Segura, 747 F.3d 323, 331 (5th Cir. 2014)).
Before the Supreme Court, the parties agree that the Fifth Circuit’s “shocks-the-conscience” test misstates the fourth prong of Olano. They disagree, however, about the scope of relief that is appropriate when a forfeited district court error results in a higher sentencing range. Rosales-Mireles argues that an erroneously high sentencing range should raise a presumption that the error satisfies the plain error standard. Although the government can still invoke countervailing factors to argue that the error does not merit reversal, Rosales-Mireles argues, in most cases courts should find that it does. Even if the Court does not adopt such a sweeping holding, Rosales-Mireles argues the Fifth Circuit’s unduly stringent “shocks-the-conscience” test, which makes it effectively impossible for defendants to satisfy Olano’s fourth prong, justifies reversal in his case.
In response, the government argues that Rosales-Mireles’s proposed presumption in cases of sentencing miscalculation would turn plain-error review on its head. The plain error standard is intentionally difficult to meet, the government argues, in order to encourage defendants to timely object to errors at trial. Replacing case-by-case evaluation with a default presumption in cases of miscalculated sentences would undercut the policy rationales underlying the rule. Although the government concedes that the Fifth Circuit misstated the standard, it argues that the court nevertheless applied it correctly. In Rosales-Mireles’s case, the final sentence imposed by the district court was reasonable and within both the erroneous range and the correctly calculated one, and thus did not seriously undermine the fairness of the proceedings.