Where Circuit Had Not Yet Addressed Question at Time of Trial, Error Is Neither "Clear" Under Rule 35(a) Nor "Plain" Under Rule 52(b)

United States v. Henderson, No. 10-30571 (5th Cir. July 8, 2011) (Smith, Southwick, Graves)

Another reason, as if you needed one, to preserve, preserve, preserve error in the district court.

Henderson, who pleaded guilty to being a felon in possession of a firearm, received an upward departure "to ensure that [he] had an opportunity to enroll in the federal Bureau of Prisons drug treatment program[.]" He did not object to his sentence at that time. Eight days later he filed a Rule 35(a) motion to correct his sentence, arguing that the district court violated 18 U.S.C. § 3582(a)'s prohibition on using imprisonment as a means of promoting rehabilitation—the Tapia issue.

The court first addressed whether Henderson's Rule 35(a) motion preserved the error. As relevant here, Rule 35(a) only allows a court to correct an error that is clear. This error wasn't, because at the time a circuit split existed over the Tapia question and the Fifth Circuit hadn't addressed it:

Before Tapia, there was a circuit split on whether a district court can consider a defendant’s rehabilitative needs to lengthen a sentence. Tapia, 2011 WL 2369395, at *3 n.1. Moreover, we have not pronounced on the question. In that situation, when there is no binding precedent on a question on which there is a circuit split, an alleged error is not “clear.” If we had confronted the question, we might have gone either way, so the error would not “almost certainly result in a remand of the case.” The error was not correctable under rule 35(a), and Henderson’s motion failed to preserve the error. We must therefore review for plain error.

If, like me, you thought the Fives had in fact addressed the Tapia issue and held that rehabilitation is a permissible factor in deciding on a term of imprisonment, here's what Henderson says:

In United States v. Giddings, 37 F.3d 1091 (5th Cir. 1994), we held only that a court could consider a defendant’s rehabilitative needs when sentencing him to imprisonment upon revocation of supervised release. Our decision in United States v. Lara-Velasquez, 919 F.2d 946, 953-57 (5th Cir. 1990), held only that the court can consider rehabilitative potential as a mitigating factor within an appropriate range of punishment, but not necessarily as a reason for a sentencing enhancement.

Okay, let's move on to plain error review. This one should be easy, right? There was error, and in light of Tapia the error was plain at the plain at the time of appellate consideration.
 
Wrong:

Tapia established that it is error for a court to “impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” Tapia, 2011 WL 2369395, at *9. Henderson cannot show that the error in his case was plain, however, because an error is plain only if it “was clear under current law at the time of trial.” United States v. Jackson, 549 F.3d 963, 977 (5th Cir. 2008) (emphasis added). At the time of trial, the Supreme Court had not yet decided Tapia and, as we have just explained, we had not yet addressed the question. Where we have not previously addressed a question, any error cannot be plain.

(second emphasis added). That strikes me as an incorrect approach to the plainness prong, but the court cites authority for that proposition: "See United States v. Vega, 332 F.3d 849, 852 n.3 (5th Cir. 2003) (“We conclude that any error by the district court in this regard was not plain or obvious, as we have not previously addressed this issue.” (citing United States v. Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994)(en banc)))."
 
Whether this approach is consistent with the Supreme Court's pronouncments on the plainness prong, or even Fifth Circuit precedent, perhaps the more important takeaway is: PRESERVE!