Failure to Object At Sentencing to Reasonableness of Sentence Triggers Plain Error Review
United States v. Peltier, No. 05-30440 (5th Cir. Oct. 23, 2007) (Higginbotham, Smith, Owen)
Peltier pled guilty to being a felon in possession of a firearm. The district court sentenced him to 120 months' imprisonment, which was the statutory maximum and more than double the 46- to 57-month range recommended by the Guidelines. Peltier had argued for a below-guideline sentence and "suggested that he would benefit from a halfway house." But the district court concluded that he needed drug and psychological counseling, and explained that the 120-month sentence was done in part "to give him full opportunity to be able to get the treatment he needs because I don't think a one- or two-year program is going to help this." According to the opinion, "Peltier did not object to the sentence." Peltier appealed.
The court began with the standard of review, observing that "[t]his court has not yet determined whether a defendant's failure to object at sentencing to the reasonableness of his sentence triggers plain error review." There's a circuit split on this issue, with several circuits having held that plain error review applies. "[T]he Seventh Circuit," on the other hand, "has held that a defendant need not object at sentencing to preserve the error, because such a strict requirement would 'create a trap for unwary defendants and saddle busy district courts with the burden of sitting through an objection probably formulaic in every criminal case.'"
The court declined to follow what it characterized as the Seventh Circuit's "Booker-is-different" approach. It argued that an objection "serves a critical function by encouraging informed decisionmaking and giving the district court an opportunity to correct errors before they are taken up on appeal," and that Booker did not change that "underlying rationale." Thus, the court joined those circuits which review an "unpreserved claim of Booker unreasonableness" for plain error.
The court went on to hold that "[a]lthough Peltier’s 120-month sentence for keeping a rusty shotgun in a shed raises concerns about its reasonableness, any error does not appear so plain to us as to warrant reversal." It rejected Peltier's argument that the sentence gave insufficient weight to the much-lower Guideline range, approving the district court's conclusion that "Peltier's long history of recidivism made his situation stand out from the norm." It also found no plain error in the district court's apparent reliance on Peltier's socioeconomic status---the district court didn't think Peltier had the financial means to get the drug and psycholigical treatment outside of prison that it felt he needed. According to the court of appeals, "in light of the [district] court’s strong emphasis on Peltier’s general need for treatment and its reliance on other proper factors such as criminal history and risk of recidivism, any erroneous reliance on socioeconomic status was neither plain nor so essential to the judgment as to affect Peltier’s substantial rights."
The court also rejected Peltier's argument about the lack of expert support for the district court's findings:
Finally, the court disagreed with Peltier's argument that the district court "did not explain why the need for treatment demanded a 120-month sentence instead of the 46- to 57-month sentence advised by the guidelines." It instead held that "the fact that a particular treatment program might be completed before the sentence has been served does not necessarily make the longer sentence unreasonable. That remains particularly so where, as here, factors other than treatment also support the sentence."
There's a lot that can be said about this opinion, and it has already generated some strong criticism from Professor Berman, both for its adoption of a plain error standard of review and for its application in this case. (He's also promised further commentary on the case, so keep an eye out for that. UPDATE: Here it is.)
Using plain error as the standard is wrong for several reasons. First, contrary to what the court says, the rationale for requiring an objection does not apply in this situation. When a defendant has asked for a particular sentence, backed up by specific reasons, and the district court has decided on a different sentence and given some explanation for its decision, it's hard to see what an objection is supposed to accomplish. Second, although the court doesn't say exactly what the objection is supposed to be, it suggests that a defendant must object to the reasonableness of the sentence. But reasonableness is the standard of appellate review, not the standard the district court is supposed to use when selecting a sentence. The district court standard is found in § 3553(a): a sentence sufficient, but not greater than necessary, to accomplish the goals of sentencing identified in the statute. Third, as some commenters over at Professor's Berman's post have pointed out, Peltier appears to run afoul of Fed. R. Crim. P. 51. That rule states that "[e]xceptions to rulings or orders of the court are unnecessary," and provides that "[a] party may preserve a claim of error by informing the court---when the court ruling or order is made or sought---of the action the party wishes the court to take, or the party's objection to the court's action and the grounds for that objection."
Nevertheless, for all the opinion's flaws, it's binding precedent in our circuit for the time being. Prudence therefore dictates that you object if the district court imposes a sentence greater than what you've asked for, even if you've already exhaustively laid out your argument before the court. Peltier unfortunately provides little guidance as to what that objection is supposed to say, so for now you'll have to figure that out for yourselves. And in light of the way the plain error review played out in this case, you may want to object to anything in the PSR that court arguably justify a higher sentence for your client, even facts which don't directly impact the calculation of the guideline range.
Peltier pled guilty to being a felon in possession of a firearm. The district court sentenced him to 120 months' imprisonment, which was the statutory maximum and more than double the 46- to 57-month range recommended by the Guidelines. Peltier had argued for a below-guideline sentence and "suggested that he would benefit from a halfway house." But the district court concluded that he needed drug and psychological counseling, and explained that the 120-month sentence was done in part "to give him full opportunity to be able to get the treatment he needs because I don't think a one- or two-year program is going to help this." According to the opinion, "Peltier did not object to the sentence." Peltier appealed.
The court began with the standard of review, observing that "[t]his court has not yet determined whether a defendant's failure to object at sentencing to the reasonableness of his sentence triggers plain error review." There's a circuit split on this issue, with several circuits having held that plain error review applies. "[T]he Seventh Circuit," on the other hand, "has held that a defendant need not object at sentencing to preserve the error, because such a strict requirement would 'create a trap for unwary defendants and saddle busy district courts with the burden of sitting through an objection probably formulaic in every criminal case.'"
The court declined to follow what it characterized as the Seventh Circuit's "Booker-is-different" approach. It argued that an objection "serves a critical function by encouraging informed decisionmaking and giving the district court an opportunity to correct errors before they are taken up on appeal," and that Booker did not change that "underlying rationale." Thus, the court joined those circuits which review an "unpreserved claim of Booker unreasonableness" for plain error.
The court went on to hold that "[a]lthough Peltier’s 120-month sentence for keeping a rusty shotgun in a shed raises concerns about its reasonableness, any error does not appear so plain to us as to warrant reversal." It rejected Peltier's argument that the sentence gave insufficient weight to the much-lower Guideline range, approving the district court's conclusion that "Peltier's long history of recidivism made his situation stand out from the norm." It also found no plain error in the district court's apparent reliance on Peltier's socioeconomic status---the district court didn't think Peltier had the financial means to get the drug and psycholigical treatment outside of prison that it felt he needed. According to the court of appeals, "in light of the [district] court’s strong emphasis on Peltier’s general need for treatment and its reliance on other proper factors such as criminal history and risk of recidivism, any erroneous reliance on socioeconomic status was neither plain nor so essential to the judgment as to affect Peltier’s substantial rights."
The court also rejected Peltier's argument about the lack of expert support for the district court's findings:
Peltier contends the district court made a clear error of judgment in balancing the § 3553(a) factors because it did not “rationally connect” them with the facts of the case and the resulting sentence. Specifically, Peltier objects to the absence of any expert diagnosis of his anger and addiction problems. Although the court did not rely on expert diagnosis, it based its findings on the presentence investigation report (“PSR”) indicating a long history of substance abuse. Peltier did not object to facts contained in the PSR, and the court did not require an expert to rely reasonably on that report.
Finally, the court disagreed with Peltier's argument that the district court "did not explain why the need for treatment demanded a 120-month sentence instead of the 46- to 57-month sentence advised by the guidelines." It instead held that "the fact that a particular treatment program might be completed before the sentence has been served does not necessarily make the longer sentence unreasonable. That remains particularly so where, as here, factors other than treatment also support the sentence."
There's a lot that can be said about this opinion, and it has already generated some strong criticism from Professor Berman, both for its adoption of a plain error standard of review and for its application in this case. (He's also promised further commentary on the case, so keep an eye out for that. UPDATE: Here it is.)
Using plain error as the standard is wrong for several reasons. First, contrary to what the court says, the rationale for requiring an objection does not apply in this situation. When a defendant has asked for a particular sentence, backed up by specific reasons, and the district court has decided on a different sentence and given some explanation for its decision, it's hard to see what an objection is supposed to accomplish. Second, although the court doesn't say exactly what the objection is supposed to be, it suggests that a defendant must object to the reasonableness of the sentence. But reasonableness is the standard of appellate review, not the standard the district court is supposed to use when selecting a sentence. The district court standard is found in § 3553(a): a sentence sufficient, but not greater than necessary, to accomplish the goals of sentencing identified in the statute. Third, as some commenters over at Professor's Berman's post have pointed out, Peltier appears to run afoul of Fed. R. Crim. P. 51. That rule states that "[e]xceptions to rulings or orders of the court are unnecessary," and provides that "[a] party may preserve a claim of error by informing the court---when the court ruling or order is made or sought---of the action the party wishes the court to take, or the party's objection to the court's action and the grounds for that objection."
Nevertheless, for all the opinion's flaws, it's binding precedent in our circuit for the time being. Prudence therefore dictates that you object if the district court imposes a sentence greater than what you've asked for, even if you've already exhaustively laid out your argument before the court. Peltier unfortunately provides little guidance as to what that objection is supposed to say, so for now you'll have to figure that out for yourselves. And in light of the way the plain error review played out in this case, you may want to object to anything in the PSR that court arguably justify a higher sentence for your client, even facts which don't directly impact the calculation of the guideline range.
Labels: Reasonableness Review
posted by Brad Bogan at 2:02 PM
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