Has the Fifth Circuit's Approach to Plain Error Review Been Too Permissive?

United States v. Ellis, No. 07-11276 (5th Cir. Mar. 26, 2009) (Higginbotham, Elrod, Haynes)

We all know that plain error review is not your friend. Nevertheless, there have been more than a few cases, particularly in the COV arena, in which the Fifth Circuit has vacated sentences on a finding of plain error. But has the court been too quick to pull the plain error trigger? That's the view of the panel in Ellis. Which is all the more reason, as if any more was necessary, to properly preserve issues for appellate review.

This case involved a particularly thorny COV issue (and, to be fair, one that doesn't exactly leap off the pages of the PSR). Ellis, who was convicted of three counts of bank robbery, also had prior North Carolina convictions for common law robbery and attempted common law robbery. At sentencing, the district court found Ellis to be a career offender, based on a determination that the NC priors were COVs under guideline §4B1.2. Ellis did not object to that finding. (Or as the opinion puts it, "without any whisper of [an objection] uttered in the district court[,]" "[d]espite the fact that Ellis’ criminal history was the most salient factor in his sentence[.]" You can see where this is going.)

On appeal, Ellis conceded that NC common law robbery is a §4B1.2 COV, but argued that "in North Carolina, attempted robbery is not a crime of violence because state law defines that offense—specifically the 'overt act' requirement—more broadly than most other states." And for that reason, said Ellis, his attempt conviction fell outside all three prongs of the §4B1.2 COV definition.

The court analyzed the broader-than-generic-attempt issue at length, ultimately concluding that "the question is close as to whether Ellis’ North Carolina attempted common law robbery falls within the generic, contemporary meaning of attempt in this context[,]" and that "[t]he question as to whether the attempt falls under one of the other catchall provisions of § 4B1.2 is also close[.]" But the court declined to pursue the question any further than that:

Our narrative of the decisional path this court would have to traverse to resolve the merits of defendant’s objection to his sentence, an objection never made to the trial court, makes plain beyond peradventure that any error was not plain. As Ellis would have it, all of the close calls fall his way, and that is enough. Yet, the error said to be plain was never the subject of objection by able trial counsel. Putting aside its obscurity at trial, even now after full briefing and oral argument the error is not plain or obvious, indeed it is most uncertain whether there was any error at all.

Ellis, of course, pointed to a number of other COV plain-error reversals. But the court concluded that the issue here was far less clear than in those cases, whose "brief analyses turn[ed] on the elements of the crime sustaining the conviction or upon other straightforward applications of case law to correct what would be more promising candidates for clear error." The court also found support in the Supreme Court's recent explication of plain error review in Puckett v. United States, which "reaffirmed the principle that to satisfy the second prong of plain error inquiry, 'the legal error must be clear or obvious, rather than subject to reasonable debate.'"

And here's where the court really starts calling into question its recent approach to plain error:

This emphasis on the second prong of plain error analysis is particularly important given the development of this court’s case law on the third and fourth prongs of the plain error test in the sentencing context, where the court has been generous with remand, often finding that errors leading to substantial increases in sentences, even those errors not raised until appeal and thus subject to plain error review, merited remand, although we are not convinced that the case law on this point is settled or as categorical as language in some cases might make it seem. To our eyes, the lack of any clear error here means that Ellis’ sentence should stand.

Even if we were inclined, this is no occasion to offer metrics for the severity of an increase worked by decisions later found to have been error and such a departure as to summon our discretion to correct an injustice. Not every error that increases a sentence need be corrected by a call upon plain error doctrine. It bears emphasis that all defendants’ appeals challenging a sentence rest on the practical premise that the sentence should be less. The doctrine of plain error serves powerful institutional interests, including securing the role of the United States District Court as the court of first instance, as opposed to a body charged to make recommendations to appellate courts. And even if an increase in a sentence be seen as inevitably “substantial” in one sense it does not inevitably affect the fairness, integrity, or public reputation of judicial process and proceedings. To conclude that not correcting the error claimed here casts doubt upon the fairness, integrity, or public reputation of the proceeding drains all content from the doctrine of plain error.

There's no way to tell right now whether the Fives will crack down on plain error review going forward. We've already seen the court requiring pretty specific arguments and objections in the district court just to avoid plain error review in the first place. So yes, the plain error bar will probably get higher. Better to avoid finding out for sure.