Ninth Weighs In On Circuit Split: No Objection Required In District Court to Preserve Substantive Reasonableness Challenge

United States v. Autery, No. 07-30424 (9th Cir. Feb. 13, 2009) (Thompson, Smith; Tashima, concurring in part and dissenting in part)

Remember that circuit split over reasonbleness review and plain error? Courtesy of our colleagues at the Ninth Circuit Blog (here and here), we learn that the Ninth Circuit has weighed in on that question. Much like the Sixth Circuit in Vonner---and, curiously, without ever mentioning Vonner---the Nines draw a distinction between procedural errors and substantive reasonableness: an un-objected-to procedural error is reviewed for plain error, whereas "the substantive reasonableness of a sentence—whether objected to or not at sentencing—is reviewed for abuse of discretion." In so holding, the Ninth Circuit expressly disagreed with our own circuit's contrary decision in Peltier, instead finding the Seventh Circuit's reasoning more persuasive:

In Castro-Juarez, the Seventh Circuit reasoned that “[t]o insist that defendants object at sentencing to preserve appellate review for reasonableness 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.” 425 F.3d at 433-34. “Since the district court will already have heard argument and allocution from the parties and weighed the relevant § 3553(a) factors before pronouncing sentence,” the court reasoned, “we fail to see how requiring the defendant to then protest the term handed down as unreasonable will further the sentencing process in any meaningful way.” Id. at 434.

Autery also takes issue with Peltier's head-counting on the circuit split:

In Peltier, the Fifth Circuit acknowledged that the Seventh Circuit held that a defendant need not object at sentencing to the reasonableness of his sentence to preserve the issue for review, and then stated that various other circuits have taken a contrary view. 505 F.3d at 391. In support of this latter point, the court cited decisions from the Second, Sixth, Tenth, Third, and Ninth Circuits. Id. at 391 n.5. In so doing, however, the Peltier court apparently mistook the holdings of some of those cases, conflating substantive reasonableness with the procedural failure to consider the § 3553(a) factors, discussed supra. See id.

It's a safe bet that this issue will make its way to the Supreme Court eventually. How soon that will happen is hard to say. (See how easy it is to make a prediction that, at any given point in time, can't be wrong?) Autrey won't be the vehicle, though. You see, the Government was the appellant in Autery, and it failed to object to the substantive reasonableness of the sentence in the district court. Although the Government loses in Autrey---because the Ninth Circuit affirms the sentence two votes to one---it obviously won't be petitioning for en banc review or cert on the ground that its challenge to the sentence should have been reviewed for plain error, rather than an abuse of discretion. It's rather elegant, isn't it?