Monday, April 20, 2009

Guidelines Calculation Error Doesn't Require Reversal If Sentence Didn't Result From That Error, Plus More on Plain Error

United States v. Ruiz-Arriaga, No. 08-40242 (5th Cir. Apr. 9, 2009) (Jones, Wiener, Benavides)

We know that, when imposing sentence, the district court must correctly calculate the advisory Guidelines range. Let's say the court gets the Guidelines calculation wrong, but says something along the lines of, "Even if the Guidelines range was different, I would still impose a sentence of X months, for the following reasons . . . ." Does the procedural error require vacation of the sentence?

Not necessarily. The Fifth Circuit recently clarified that a procedural error does not require reversal if the error was harmless, meaning that the error did not affect the sentence imposed. That's essentially what Ruiz-Arriaga holds, although it couches the matter in slightly different terms.

In this case, Ruiz pleaded guilty to illegal reentry. He had a prior Texas conviction for sexual assault of a child. The PSR recommended a 16-level COV enhancement for that prior conviction, producing an advisory range of 46 to 57 months. Ruiz objected to the enhancement (the details of which the opinion doesn't explain), arguing that the correct range was 10 to 16 months (presumably based on treating the sexual assault prior as a 4-level "any other felony" under §2L1.2(b)(1)(D), although the opinion doesn't explain that, either). The district court overruled the objection and sentenced Ruiz to 46 months, explaining that,
in the event that the court is incorrect about the guideline range, that a sentence at certainly something more than 10 to 16 months, which if the court were wrong is what—I haven’t recalculated, but that’s what [defense counsel] says would be the range. The court believes that a sentence of 46 months in custody would be reasonable, even if the court is not correct about the guideline range.

Ruiz appealed. Without addressing whether the district court erred in applying the 16-level enhancement, the court of appeals concluded that any error was harmless:
As we noted in United States v. Bonilla, 524 F.3d 647 (5th Cir. 2008), “[n]ot all errors in determining a defendant’s guideline sentence require reversal.” Id. at 656. Where the district court “considered the possible guideline ranges that might apply to the defendant with and without a disputed enhancement for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A),” and otherwise explains its sentence in terms of 18 U.S.C. § 3553, the resulting sentence does not result from an incorrect application of the Guidelines. Id. Here, the district court considered the 46 to 57-month range with the crime of violence enhancement and the 10 to 16-month range advocated by the defense.

Of course, this brings up the question of just how much 3553 explanation is necessary to avoid a causal link between a Guidelines-calculation error and the sentence imposed. It must be more than the above quote from the district court, because the opinion also mentions that "[d]uring the sentencing hearing, the district court stated that it had considered the non-enhancement range offered by the defense and would have imposed the same sentence independently of the Guidelines in light of the seriousness and recent nature of the statutory rape conviction." So an explanation stating simply that "this court would impose the same sentence even if it is wrong about the applicable Guidelines calculation" shouldn't cut it. The district court must still address the defendant's argument, and provide 3553-based reasons for the alternative non-Guidelines sentence.

And in keeping with a recent theme, the opinion offers another sign that the Fifth Circuit is getting stricter about plain error review. Although Ruiz argued in the district court that the correct advisory range was 10 to 16 months, he argued on appeal that it was actually 8 to 14 months due to an error in the criminal history calculation. As Ruiz didn't make the argument below, plain error review applied. Quoth the court:
First, we cannot attribute “plain” error to a district court decision when defense counsel affirmatively represented to the district court a sentencing range that appellate counsel now disavows. Trial counsel’s misstatement essentially waives the argument for any other sentencing range in this appeal. It is well established that appellate courts may correct errors of law under a plain standard where trial counsel simply stood mute at sentencing and failed to object to the PSR. . . . This is because a “plain” error is one that the district court, in its oversight of sentencing, should have been alert to correct. Sentencing under the Guidelines is so complex, however, that the court should not be faulted for “plain” error when counsel’s affirmative statements allay any possible concern.

(emphasis added). Plus, no prejudice: "It is hardly likely that the court would have responded differently to a two month difference in range when it so clearly rejected the slightly higher range."

Labels: , , , , ,


Post a Comment

<< Home