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COMMENT
WHY SO SERIOUS? TAKING THE WORD
“SERIOUSLY” MORE SERIOUSLY IN PLAIN
ERROR REVIEW OF FEDERAL SENTENCING
APPEALS
TABLE OF CONTENTS
I. INTRODUCTION ..................................................................... 1450 II. SERIOUSLY? YOU DIDN’T OBJECT? THE FOUNDATIONS OF
PLAIN ERROR ........................................................................ 1453 A. Preservation of Errors for Review and the
Importance of Objecting at Trial ................................. 1454 B. Evolution of Plain Error: The Supreme Court
Addresses Unpreserved Errors in “Exceptional
Circumstances” ............................................................. 1456 C. The Role of Appellate Courts in the Federal
Sentencing Process ....................................................... 1459 III. A SERIOUS PROBLEM: THE WORD “SERIOUSLY” IS NOT
BEING TAKEN SERIOUSLY ENOUGH ..................................... 1460 A. Judge Smith Demonstrates the Fifth Circuit Has
Failed to Defer to Sentencing Courts ........................... 1462 B. Appellate Courts Have Read the Word “Seriously”
out of the Fourth Prong ................................................ 1463

This Comment received the Susman Godfrey L.L.P. Award for Outstanding
Paper in the Area of General Litigation. I would first like to thank Judge Jerry Smith of
the Fifth Circuit for a wonderful internship in the summer of 2012 and for the research
project that inspired this Comment. In addition, I thank Professor Melissa Hamilton for
being my faculty mentor; Katie Barnhill for her invaluable feedback on an initial draft;
and the editors of the Houston Law Review for their hard work in preparing this
Comment for publication. Finally, I thank my parents, George and Cathy Goolsby, and
my brother, Wyatt Goolsby, for all their love and support.
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IV. WHY SO SERIOUS? FINDING THE PLAIN MEANING OF
“SERIOUSLY” ......................................................................... 1465 A. The Fairness Test: Whether the Error Has an
“Extremely Disproportionate Impact” on the
Sentence ........................................................................ 1466 1. Other Circuit Courts Provide Examples of
Seriously Unfair Circumstances .......................... 1467 2. Applying the Fairness Test to Ensure a More
Just Result ............................................................ 1469 B. The Integrity Test: Whether the Sentencing Judge’s
Behavior Was “Derelict, Craven, and Irresponsible” .. 1471 1. Acting with Integrity: What Rules Judges Have
to Follow ................................................................ 1472 2. United States v. Alvarado: An Example of
Reversible Judicial Behavior................................ 1475 3. Applying the Integrity Test ................................... 1476 C. The Public Reputation Test: Whether the Court
Violated the Defendant’s Constitutional or Due
Process Rights .............................................................. 1478 1. United States v. Borders: An Example of a
Constitutional Plain Error ................................... 1479 2. United States v. Adams: An Example of a Due
Process Plain Error ............................................... 1480 3. Applying the Public Reputation Test in
Allocution Cases .................................................... 1481 V. CONCLUSION ........................................................................ 1483 He turns to me, and he says, “Why so serious?” He comes at me with
the knife. “Why so serious?” He sticks the blade in my mouth. “Let’s
put a smile on that face.” And . . . Why so serious?1
I.
INTRODUCTION
The Dark Knight, a box office smash from the summer of
2008, features Batman’s nemesis, The Joker, wreaking havoc
on Gotham City.2 In arguably his most memorable monologue,
1.
THE DARK KNIGHT (Warner Bros. Pictures 2008). Heath Ledger won a
posthumous Academy Award for Best Supporting Actor for his performance as The Joker
in The Dark Knight. Michael Cieply & David Carr, It’s a ‘Slumdog’ Kind of Night at the
Oscar Ceremony, N.Y. TIMES, Feb. 23, 2009, at C1.
2. THE DARK KNIGHT, supra note 1; see Gitesh Pandya, Weekend Box Office (July 18–
20, 2008), BOX OFFICE GURU (July 21, 2008, 10:30 PM), http://www.boxofficeguru.com/
072108.htm (“The Dark Knight broke the all-time opening weekend box office record . . . .”).
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The Joker poses a question particularly relevant to applying
the fourth prong of plain error review: “Why so serious?”3 This
question goes to the heart of the fourth prong’s language: a
criminal defendant must demonstrate why an error during
sentencing was so serious.4 If a defendant cannot show the
error was serious, a court should not exercise its discretion to
grant plain error relief.5
Plain error is the standard of review applied in appeals of
unpreserved errors.6 When appealing such an error, a criminal
defendant must satisfy four prongs in order to be resentenced:
(1) there was an error; (2) it was clear or obvious; (3) it affected
the length of the sentence; and (4) it “seriously affect[ed] the
fairness, integrity or public reputation of judicial
proceedings.”7 In particular, the fourth prong is susceptible to
different interpretations: how serious is serious?8
This Comment addresses this problem: many federal
judges do “not take the word ‘seriously’ seriously enough”—at
least, not when reviewing plain errors in criminal sentencing
cases.9 The word “seriously” is a pivotal part of the fourth
prong of plain error review because an appellate court has
discretion to reverse an unpreserved error only if it “seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.”10
3.
THE DARK KNIGHT, supra note 1; see United States v. Olano, 507 U.S. 725, 732
(1993) (quoting United States v. Young, 470 U.S. 1, 15 (1985)) (discussing reversal of
errors that “seriously” affect the judicial process).
4.
See Olano, 507 U.S. at 732 (quoting Young, 470 U.S. at 15) (requiring a showing
of serious error before an appellate court may reverse); THE DARK KNIGHT, supra note 1
(containing The Joker’s “Why So Serious?” monologue). Much like The Joker, errors that
seriously undermine the fairness of the judicial process must be kept in check. United
States v. Escalante-Reyes, 689 F.3d 415, 435 (5th Cir. 2012) (Smith, J., dissenting); THE
DARK KNIGHT, supra note 1. If left unchecked, both “would shock the conscience of the
common man, [and] serve as a powerful indictment against our system of justice.”
Escalante-Reyes, 689 F.3d at 435 (Smith, J., dissenting); THE DARK KNIGHT, supra note 1.
5.
Olano, 507 U.S. at 732 (quoting Young, 470 U.S. at 15).
6.
See, e.g., Puckett v. United States, 556 U.S. 129, 135 (2009) (detailing the
requirements of appealing an unpreserved error); Olano, 507 U.S. at 730 (applying plain
error because the defendant had not objected to the error at trial).
7.
Olano, 507 U.S. at 732–36 (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)); United States v. Garcia-Quintanilla, 574 F.3d 295, 304 (5th Cir. 2009).
8.
Compare United States v. John, 597 F.3d 263, 287 (5th Cir. 2010) (quoting
United States v. Ellis, 564 F.3d 370, 378 (5th Cir. 2009)) (describing the Fifth Circuit as
“generous” when remanding cases for plain error), with United States v. Poitra, 648 F.3d
884, 889 (8th Cir. 2011) (labeling the fourth prong of plain error as “formidable”).
9.
See Escalante-Reyes, 689 F.3d at 441 (Smith, J., dissenting) (remarking that the
word “seriously” is not being taken seriously enough); infra Part III (discussing the
problem with applying the fourth prong of plain error review in federal sentencing cases).
10.
Olano, 507 U.S. at 732 (alteration in original) (quoting Young, 470 U.S. at 15).
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In order to understand this seriousness requirement,
Part II discusses how plain error developed, why it is a
difficult standard of review to satisfy, and how this difficulty is
connected to the deference appellate courts owe to district
courts. Part III illustrates the current debate of when to grant
plain error relief by examining a recent en banc decision from
the Fifth Circuit. In that case, a dissenting judge argues the
majority has read the word “seriously” entirely out of the
fourth prong, leading to unjust results.11
In light of Parts II and III, Part IV proposes three novel tests
to measure the egregiousness of the errors to ensure that this
discretion is only used to prevent “miscarriage[s] of justice.”12
First, the Fairness Test examines whether an error has had an
“extremely disproportionate impact on the sentence,” such as
wrongfully extending a sentence by more than seven years.13
Next, the Integrity Test analyzes the sentencing judge’s behavior
and seeks to reverse errors in which the judge has conducted
“derelict, craven, and irresponsible” judicial proceedings.14
Finally, the Public Reputation Test uses four factors to examine
alleged violations of constitutional and due process rights.
The three tests seek to create a more consistent application
of plain error review that will benefit both defendants and
federal circuit judges alike. The defendants will be better able to
gauge the strength of their cases and the likelihood of winning
their appeals.15 At the same time, federal circuit judges will
ensure that only the “particularly egregious errors” are reversed,
encourage defendants to object at trial, and give reasonable
deference to the sentencing judge.16
11.
See Escalante-Reyes, 689 F.3d at 433–35, 441 (Smith, J., dissenting) (“The
majority does not take the word ‘seriously’ seriously enough.”).
12.
See Olano, 507 U.S. at 736 (quoting United States v. Frady, 456 U.S. 152, 163
n.14 (1982)).
13.
See United States v. Jordan, 256 F.3d 922, 926, 929–30 (9th Cir. 2001)
(articulating the standard of “extremely disproportionate impact”).
14.
See Escalante-Reyes, 689 F.3d at 433–36 (Smith, J., dissenting) (discussing
“derelict, craven, and irresponsible” judicial behavior).
15.
See Michael Palmer, Which is Better? The Deal or the Ordeal? An
Examination of Some Challenges of Case Valuation, VT. B.J., Fall 2010, at 34, 35
(observing that uncertainty and complexity “plague our predictive judgments in
litigation”).
16.
See United States v. Young, 470 U.S. 1, 15 (1985) (citations omitted)
(holding the plain error doctrine is applicable to only “particularly egregious errors”).
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II. SERIOUSLY? YOU DIDN’T OBJECT? THE FOUNDATIONS OF
PLAIN ERROR
Federal judges ought to consider the word “seriously” in light
of the foundations of plain error. Federal courts use the plain
error standard to review unpreserved errors.17 An error is
unpreserved when a party fails to object at the trial court level.18
Plain error is “more stringent and difficult” than other standards
of review.19 Specifically, the defendant appealing his sentence
bears the burden of addressing a four-prong test.20 First, there
must be an error.21 Second, it must be clear or obvious.22 Third,
the error must affect substantial rights, meaning it affected the
outcome of the court’s proceedings.23 Fourth, an appellate court
should correct the error if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.”24
The fourth prong is a discretionary prong.25 Granting relief
in these cases is not mandatory, even in situations where the
first three prongs have been satisfied.26 This level of discretion is
not present in harmless error review, which is used in appeals of
17.
See, e.g., Puckett v. United States, 556 U.S. 129, 135 (2009) (detailing the
requirements of appealing an unpreserved error); Olano, 507 U.S. at 730 (“Because
respondents had not objected to the alternates’ presence, the court applied a ‘plain error’
standard under Rule 52(b).”).
18.
See FED. R. CRIM. P. 51(b) (providing how to preserve a claim of error).
19.
Escalante-Reyes, 689 F.3d at 422 (en banc).
20.
Olano, 507 U.S. at 732. In these cases, it is the defendant rather than the
Government who bears the burden of persuasion. Id. at 734.
21.
Id. at 732–33.
22.
Id. at 734.
23.
Id. When determining prejudice in sentencing appeals, circuit courts examine
“whether the error increased the term of a sentence, such that there is a reasonable
probability of a lower sentence on remand.” United States v. Garcia-Quintanilla, 574 F.3d
295, 304 (5th Cir. 2009).
24.
Olano, 507 U.S. at 735–36 (alteration in original) (quoting United States v.
Atkinson, 297 U.S. 157, 160 (1936)).
25.
See Larry Cunningham, Appellate Review of Unpreserved Questions in Criminal
Cases: An Attempt to Define the “Interest of Justice”, 11 J. APP. PRAC. & PROCESS 285, 300
(2010) (noting that the fourth prong is discretionary, and an appellate court is not bound
to correct every plain error); Terri J. Erisman, Defining the Obvious: Addressing the Use
and Scope of Plain Error, 61 A.F. L. REV. 41, 51 (2008) (discussing how an appellate court
only has discretion to grant relief if the error “seriously affects the fairness, integrity, or
public reputation of judicial proceedings”).
26.
THOMAS W. HUTCHISON ET AL., FEDERAL SENTENCING LAW AND PRACTICE § 11.8
(2012); see, e.g., Johnson v. United States, 520 U.S. 461, 469–70 (1997) (ruling that the
error did not satisfy the fourth prong and declining to notice the error); United States v.
Chavez-Hernandez, 671 F.3d 494, 497, 501 (5th Cir. 2012) (“Although ‘plain error’
occurred, we are not compelled to reverse under the circumstances here presented.”); see
also United States v. Escalante-Reyes, 689 F.3d 415, 445–47 (5th Cir. 2012) (Smith, J.,
dissenting) (listing Fifth Circuit cases in which the fourth prong has been considered but
plain error was not found).
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preserved errors.27 As members of the Supreme Court observed,
“[i]t is this distinction between automatic and discretionary
reversal that gives practical effect to the difference between
harmless-error and plain-error review, and also every incentive
to the defendant to raise objections at the trial level.”28 In fact,
Congress codified these standards with different language to
distinguish their respective natures.29 Therefore, a circuit judge
applying plain error instead of harmless error review can
consider the distinct purposes of the two tests.30 In determining
plain error’s purpose, judges should consider the three
foundations of plain error: the review of unpreserved errors, the
history of plain error, and the deference appellate courts owe
sentencing courts. Considering each of these foundations will
help to ensure the word “seriously” is taken seriously enough.31
A. Preservation of Errors for Review and the Importance of
Objecting at Trial
The first foundation of plain error is to encourage parties
to object at trial in order to preserve error.32 This goal of
preserving error, in turn, ought to inform the application of
the word “seriously.”33 Rule 51 of the Federal Rules of
Criminal Procedure articulates the process for preserving a
claim of error.34 First, a party must inform the court of the
error.35 Second, a party must alert the court at the time of the
27.
See United States v. Monroe, 353 F.3d 1346, 1352 (11th Cir. 2003) (comparing
harmless error and plain error). The harmless error test applies to all errors where a
proper objection is made at trial. Neder v. United States, 527 U.S. 1, 7 (1999).
28.
Olano, 507 U.S. at 744 (Stevens, J., dissenting).
29.
See FED. R. CRIM. P. 52(a) (requiring automatic reversal for harmless errors
because errors that do not affect substantial rights “must be disregarded”); id. 52(b)
(indicating discretionary reversal for plain errors because of the permissive language
“may be considered”).
30.
See United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007) (“[U]nlike
harmless-error review, plain-error review is intended to enforce the requirement that
parties lodge timely objections.”).
31.
Escalante-Reyes, 689 F.3d at 433–36, 441 (Smith, J., dissenting) (discussing the
issues that have led to the neglect of the fourth prong).
32.
See id. at 418 (majority opinion) (stating that a contemporaneous objection is
vital to preserving the “orderly process of trial court matters”).
33.
Olano, 507 U.S. at 732; see David William Navarro, Comment, Jury
Interrogatories and the Preservation of Error in Federal Civil Cases: Should the PlainError Doctrine Apply?, 30 ST. MARY’S L.J. 1163, 1176–81 (1999) (discussing the
relationship between the seriousness requirement of the fourth prong and the importance
of preserving error).
34.
FED. R. CRIM. P. 51(b).
35.
Id.; Cunningham, supra note 25, at 289.
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ruling or order.36 Third, the objecting party must object with
“sufficient specificity,”37 stating the court’s objectionable action
and the grounds for the objection.38
The three requirements increase efficiency by giving the
trial court a chance to address and remedy the problem when
it arises.39 Additionally, the prevailing party is on notice for
what might be appealed, and both parties will have access to a
clear record when it is appealed.40 Moreover, this complete
record allows the appellate court to conduct a meaningful
review and protect the adverse party from prejudice.41
Despite these considerations, the Supreme Court has
maintained that there is no general rule as to whether a party
has waived the appeal of an unpreserved error.42 Elaborating
on this position, Justice Blackmun made clear that reviewing
these errors should be left to the discretion of the courts of
appeals, “to be exercised on the facts of individual cases.”43
Justice Blackmun’s perspective echoed that of Justice Black’s,
which allowed a court to review unpreserved errors in
“exceptional cases” and under “particular circumstances.”44 In
light of these perspectives, determining the seriousness of an
error under the fourth prong should require a close
examination of the facts, and those facts must indicate
exceptionally unfair circumstances.45
This approach to the seriousness requirement further
helps to distinguish plain error from harmless error by making
plain error more “formidable.”46 This clearer distinction would
provide an incentive for parties to object more at sentencing to
obtain the more favorable harmless error standard of review
36.
FED. R. CRIM. P. 51(b).
37.
Cunningham, supra note 25, at 289.
38.
FED. R. CRIM. P. 51(b).
39.
Cunningham, supra note 25, at 289, 293.
40.
Id. at 292–93.
41.
Tory A. Weigand, Raise or Lose: Appellate Discretion and Principled DecisionMaking, 17 SUFFOLK J. TRIAL & APP. ADVOC. 179, 183, 186 (2012).
42.
See id. at 187–90 (discussing how the Supreme Court has maintained this
stance for eighty years).
43.
Singleton v. Wulff, 428 U.S. 106, 121 (1976).
44.
Weigand, supra note 41, at 187–90 (quoting Hormel v. Helvering, 312 U.S. 552,
557 (1941)); see Singleton, 428 U.S. at 121 (discussing Justice Blackmun’s perspective).
45.
United States v. Olano, 507 U.S. 725, 735–36 (1993); Singleton, 428 U.S. at 121;
Hormel, 312 U.S. at 557.
46. United States v. Poitra, 648 F.3d 884, 889 (8th Cir. 2011). Compare FED. R. CRIM. P.
52(b) (codifying plain error), with FED. R. CRIM. P. 52(a) (codifying harmless error).
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on appeal.47 These additional objections will ultimately
promote judicial economy because sentencing courts will get
more opportunities to address errors.48 Even if these errors are
still appealed, the appellate court gets to use the more
objective, cleaner-cut harmless error review for these
preserved errors.49
B. Evolution of Plain Error: The Supreme Court Addresses
Unpreserved Errors in “Exceptional Circumstances”
The second foundation of plain error is the history and
evolution of plain error. This history is important to place the word
“seriously” in context.50 The Supreme Court recognized the plain
error standard more than 100 years ago in Wiborg v. United
States.51 In that case, a trial court convicted a ship captain and his
crewmates of launching a private military expedition against
Cuba.52 In 1895, Captain Wiborg sailed for Jamaica as part of the
fruit business.53 His employer gave him an additional request: he
was to carry a group of men, armed with rifles, swords, machetes,
and a cannon, to Cuba.54 Captain Wiborg testified that he knew
these men were going to Cuba to fight, but he “considered his own
part in the affair to be lawful.”55
47.
See United States v. Escalante-Reyes, 689 F.3d 415, 422–23 (5th Cir. 2012) (en
banc) (discussing defense counsel’s incentive to object in the context of plain error);
United States v. Monroe, 353 F.3d 1346, 1352–54 (11th Cir. 2003) (comparing plain error
and harmless error).
48.
See Cunningham, supra note 25, at 293 (discussing how timely and specific
objections increase efficiency).
49.
FED. R. CRIM. P. 51(b); id. 52(a); id. 52(b); Poitra, 648 F.3d at 888–89; see also
United States v. Henson, 550 F.3d 739, 740–41 (8th Cir. 2008) (applying harmless error
review to a properly preserved error).
50.
Olano, 507 U.S. at 732–36; Wiborg v. United States, 163 U.S. 632, 658 (1896).
51.
See Wiborg, 163 U.S. at 658 (defining plain error as “a matter so absolutely vital
to defendants”); Cunningham, supra note 25, at 296 (discussing the origins of plain error
review).
52.
Wiborg, 163 U.S. at 633.
53.
Id. at 634.
54.
Id. at 635.
55.
Id. At the time of the expedition in 1895, there was an “insurrection” in Cuba.
Id.; see also Sylvia R. Lazos Vargas, History, Legal Scholarship, and LatCrit Theory: The
Case of Racial Transformations Circa the Spanish American War, 1896–1900, 78 DENV. U.
L. REV. 921, 923 (2001) (discussing how the outbreak of Cuba’s second war for
independence against Spain in 1895 laid the foundations of the United States’
intervention three years later). Although Spain had 200,000 soldiers in Cuba, the troops
were scattered in small garrisons, giving attackers the ability to outnumber them.
Vargas, supra, at 927 n.31 (citing GRAHAM A. COSMAS, AN ARMY FOR EMPIRE: THE UNITED
STATES ARMY IN THE SPANISH-AMERICAN WAR 238 (2d ed. 1994)). However, the United
States and Cuba were still at peace. Wiborg, 163 U.S. at 639.
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On appeal, the captain’s conviction was affirmed, but the
Court reversed the crewmates’ convictions and granted them a
new trial.56 For the first time on appeal, the crewmates raised
the argument that they lacked the mental state required by
the criminal statute.57 This statute criminalizes any conduct
aiding an attack on a country currently at peace with the
United States.58 The language of the statute does not carry an
explicit mens rea requirement.59 Given that the Supreme
Court says the conviction requires “proof of guilty knowledge,”
it suggests the standard would be equivalent to today’s
“knowingly” mens rea.60
In Wiborg, there was no evidence the crewmates knew
they were assisting a military expedition when they left
Philadelphia.61 The Court justified exercising their discretion
to reverse the lower court because “a plain error was
committed in a matter so absolutely vital to defendants.”62 This
56.
Wiborg, 163 U.S. at 633, 660.
57.
Id. at 659.
58.
U.S. Rev. Stat. § 5286 (1878).
59.
See id. (making no mention in the statute of “purposefully,” “knowingly,”
“recklessly,” or “negligently”).
60.
Wiborg, 163 U.S. at 659. The current version of the statute requires
“knowingly.” 18 U.S.C. § 960 (2012). In the absence of an explicitly stated
requirement, the severity of the punishment generally indicated whether it is strict
liability. See Morissette v. United States, 342 U.S. 246, 256 (1952) (observing that
“penalties commonly are relatively small” for strict liability offenses). If a court were
to interpret a statute like the one in Wiborg today, the judge would likely say the
statute implies a mens rea requirement because it authorizes a maximum of three
years in prison. See Staples v. United States, 511 U.S. 600, 616–17 (1994) (observing
that small penalties compliment the absence of mens rea); M ODEL PENAL CODE § 2.05
cmt. 1 (1985) (disfavoring strict liability whenever the offense carries possibility of
criminal conviction); Francis B. Sayre, Public Welfare Offenses, 33 COLUM. L. REV.
55, 72 (1933) (arguing that the incarceration of defendants who lack mens rea is
“revolting to the community sense of justice”); Thomas “Tal” DeBauche, Note,
Bursting Bottles: Doubting the Objective-Only Approach to 18 U.S.C. § 875(c) in Light
of United States v. Jeffries and the Norms of Online Social Networking, 51 HOUS. L.
REV. 981, 990 (2014) (noting that a negligence mens rea is rarely used in criminal
law and normally requires an explicit congressional directive).
61.
Wiborg, 163 U.S. at 659.
62.
Id. at 658 (emphasis added). Mens rea is absolutely vital to a criminal
defense. See Morissette, 342 U.S. at 250 (arguing that the mens rea requirement is
“as universal and persistent in mature systems of law as belief in freedom of the
human will and a consequent ability and duty of the normal individual to choose
between good and evil”); Roscoe Pound, Introduction, in F RANCIS BOWES SAYRE, A
SELECTION OF CASES ON CRIMINAL L AW , at xxix, xxxvi–xxxvii (1927) (“Historically,
our substantive criminal law is based upon a theory of punishing the vicious will. It
postulates a free agent confronted with a choice between doing right and doing wrong
and choosing freely to do wrong.”); Jean K. Gilles Phillips & Rebecca E. Woodman,
The Insanity of the Mens Rea Model: Due Process and the Abolition of the Insanity
Defense, 28 PACE L. REV . 455, 462 (2008) (arguing that the requirement that mens
rea be demonstrated for each offense element is constitutionally required).
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“absolutely vital” standard helps to inform the application of
the fourth prong and whether an error has “seriously affect[ed]
the fairness, integrity or public reputation of judicial
proceedings.”63 Specifically, the seriousness of overlooking the
mens rea requirement ought to serve as a benchmark for
determining an error’s seriousness under the fourth prong.64
Forty years later, in United States v. Atkinson, the Supreme
Court first used the language “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.”65 The
Atkinson Court qualified the scope of judicial discretion by
analyzing errors to see if they “seriously affect the fairness,
integrity or public reputation of judicial proceedings.”66 In the
same paragraph, the Court provided at least two clues as to
how to apply this standard.67 First, review of these errors is to
be in “exceptional circumstances.”68 Second, appellate courts
should notice the errors if they are “in the public interest.”69
These qualifications are consistent with the Wiborg Court’s
reasoning for recognizing plain error because errors relating to
a matter “absolutely vital” to the defendant would only arise
during “exceptional circumstances.”70 Furthermore, these
errors are “in the public interest” because they would
“seriously affect the fairness, integrity or public reputation of
judicial proceedings.”71
In United States v. Olano, the Supreme Court articulated
the current four-prong plain error test.72 However, the Court
never reached the fourth prong in their analysis of the facts
because Olano failed to satisfy the third prong.73 Only in later
cases did the Court determine the fourth prong “prohibit[ed]
63.
United States v. Olano, 507 U.S. 725, 732 (1993) (quoting United States v.
Young, 470 U.S. 1, 15 (1985)).
64.
See id. at 735–36 (establishing seriousness requirement); Wiborg, 163 U.S.
at 658–59 (holding mens rea is “absolutely vital to defendants”).
65. United States v. Atkinson, 297 U.S. 157, 160 (1936). When the current plain-error
test was formulated, the Supreme Court credited Atkinson for the language “seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732
(alteration original) (quoting Atkinson, 297 U.S. at 160).
66.
Atkinson, 297 U.S. at 160.
67.
Id.
68.
Id.
69.
Id.
70.
Compare id. (emphasizing the exercise of discretion in “exceptional
circumstances” and “in the public interest”), with Wiborg v. United States, 163 U.S. 632,
658 (1896) (indicating that courts can recognize unpreserved errors if they relate to
“absolutely vital” matters).
71.
Atkinson, 297 U.S. at 160.
72.
United States v. Olano, 507 U.S. 725, 732 (1993).
73.
Id. at 741.
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recognition of plain error when evidence of a defendant’s guilt
on the charged crime is ‘overwhelming’ and ‘essentially
uncontroverted.’”74 Such an interpretation has effectively made
the third and fourth prongs indistinguishable.75 For example,
in both Cotton and Johnson, the Court only performed the
fourth prong analysis for the sake of an alternate argument
because it has already ruled that the third prong has not been
satisfied.76 Arguably, such alternative justifications are merely
dicta and not the holding of the case, indicating a lack of
binding Supreme Court authority in applying this prong.77
C. The Role of Appellate Courts in the Federal Sentencing
Process
The final foundation of plain error is the deference appellate
courts owe sentencing courts. The dominant principle of
sentencing review has remained unchanged: unless the trial
court abused its discretion, the sentence it decides will stand.78
Even with the Federal Sentencing Guidelines, the Supreme
Court has remained resolute that the appellate court is not “to
substitute its judgment for that of the sentencing court as to the
appropriateness of a particular sentence.”79
Appellate courts should defer to trial courts on sentencing
issues for several reasons.80 First, the trial judge is in a unique
position to evaluate live testimony and assess the demeanor and
74.
United States v. Brown, 400 F.3d 1242, 1254 (10th Cir. 2005) (quoting Johnson
v. United States, 520 U.S. 461, 469–70 (1997)); see also United States v. Cotton, 535 U.S.
625, 633–34 (2002) (determining the fourth prong was not satisfied due to overwhelming
“evidence that the conspiracy involved at least 50 grams of cocaine base,” even though the
drug quantity was omitted from the indictment).
75.
Michael H. Graham, Abuse of Discretion, Reversible Error, Harmless Error,
Plain Error, Structural Error; A New Paradigm for Criminal Cases, 43 CRIM. L. BULL.
955, 975 (2007).
76.
Cotton, 535 U.S. at 633–34; Johnson, 520 U.S. at 469–70.
77.
See BLACK’S LAW DICTIONARY 1177 (9th ed. 2009) (defining obiter dictum as a
comment in an opinion that is “unnecessary to the decision in the case and therefore not
precedential (although it may be considered persuasive)”); see also Scott Armstrong,
Comment, Single-Purpose Containers: The Circuit Split Presents a Battle Between Values
as Disparate as General and Specific Warrants, 51 HOUS. L. REV. 1115, 1133–34 (2014)
(giving an example where circuit courts have “relied heavily upon dicta” from the
Supreme Court). But see Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57
STAN. L. REV. 953, 970 (2005) (arguing that “the existence of alternative possible
justifications does not turn what otherwise would count as holding into dicta”).
78.
ARTHUR W. CAMPBELL, LAW OF SENTENCING § 14:4 (3d ed. 2004).
79.
Williams v. United States, 503 U.S. 193, 205 (1992) (quoting Solem v. Helm, 463
U.S. 277, 290 n.16 (1983)).
80.
CAMPBELL, supra note 78, § 14:4.
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credibility of each witness.81 These factors allow the judge to
fashion a sentence that fits the specific offender.82 Second,
defendants should first file a sentence reduction motion with the
trial court before appealing.83 Third, the resentencing hearing
often goes before the same judge who gave the original
sentencing, which means the same sentence will likely be
imposed.84
Therefore, in order for an appellate court to substitute its
own judgment in place of the trial court, the error must be so
serious that a “miscarriage of justice” would occur if left
uncorrected.85 Reversing an error any less serious would be
even more harmful to the “fairness, integrity or public
reputation of judicial proceedings.”86 The reversal is harmful
because it “encourages litigants to abuse the judicial process
and bestirs the public to ridicule it.”87 Therefore, appellate
courts must balance this deference with the consideration of
how seriously an error affects the fairness, integrity, or public
reputation of the judicial proceedings.88 This balancing act will
be further discussed in Part IV.
III. A SERIOUS PROBLEM: THE WORD “SERIOUSLY” IS NOT BEING
TAKEN SERIOUSLY ENOUGH
When applying plain error review, many appellate judges have
struggled to strike a balance between deference to sentencing courts
81.
82.
Id.
CASSIA SPOHN, HOW DO JUDGES DECIDE? THE SEARCH FOR FAIRNESS AND
JUSTICE IN PUNISHMENT 123 (2d ed. 2009). When evaluating the live testimony, the judge
will assess blameworthiness and the motivation for committing the crime in order to try
to predict future dangerousness. Id. Furthermore, the judge will examine the extent to
which the defendant feels remorse. Id. Finally, the judge will tie all of these evaluations
into the bigger picture of the defendant’s education history, family and work situations,
community ties, and conduct since the arrest. Id.
83.
CAMPBELL, supra note 78, § 14:4.
84.
Id.
85.
United States v. Olano, 507 U.S. 725, 736 (1993) (quoting United States v.
Young, 470 U.S. 1, 15 (1985)).
86.
See Johnson v. United States, 520 U.S. 461, 470 (1997) (holding that the
reversal of convictions that do not contain serious errors are harmful); Williams v. United
States, 503 U.S. 193, 205 (1992) (observing that the development of the Federal
Sentencing Guidelines has not diminished the deference owed to the trial court issuing
the sentence); Solem v. Helm, 463 U.S. 277, 290 n.16 (1983) (“[I]t is not the role of an
appellate court to substitute its judgment for that of the sentencing court as to the
appropriateness of a particular sentence . . . .”).
87.
ROGER J. TRAYNOR, THE RIDDLE OF HARMLESS ERROR 50 (1970).
88. Olano, 507 U.S. at 736; Williams, 503 U.S. at 205; Solem, 463 U.S. at 290 n.16.
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and considerations of fairness, integrity, and public reputation.89
Judge Jerry E. Smith of the Fifth Circuit succinctly diagnosed the
problem: many judges are not taking the word “seriously” seriously
enough.90 In United States v. Escalante-Reyes, an en banc case,
Judge Smith wrote a dissent articulating this argument.91 To
support his argument, he reviewed the Fifth Circuit’s plain error
jurisprudence over the last twenty years.92 In particular, he
analyzed the cases in which the court reached the fourth prong.93 In
these cases, the court had determined that the seriousness
requirement was satisfied 70% of the time, despite the Supreme
Court saying that reversal for plain error should “rarely” happen.94
Furthermore, this reversal rate is inconsistent with viewpoints of
other circuits, which held that the “final prong of plain-error review
is formidable.”95 A 70% satisfaction rate does not make the fourth
prong very formidable.96 In fact, this lack of formidability is a serious
problem.97
89.
See United States v. Escalante-Reyes, 689 F.3d 415, 433–36, 441 (5th Cir.
2012) (Smith, J., dissenting) (arguing that the Fifth Circuit has incorrectly labeled
many district court judges as “derelict, craven, and irresponsible”).
90.
Id. at 441. Judge Smith previously articulated his approach to the fourth
prong two years earlier. United States v. John, 597 F.3d 263, 289–90 (5th Cir. 2010)
(Smith, J., dissenting).
91.
Escalante-Reyes, 689 F.3d at 426, 431 (Smith, J., dissenting).
92.
Id. at 426, 445–47 (listing Fifth Circuit cases in which the fourth prong was
considered but no plain error was found). Three other judges, including Chief Judge
Edith Jones, joined in this dissent. Id. at 426. Although they are not “law,” dissents
serve a very important purpose because they are “critical to an understanding of the
justice.” William J. Brennan, Jr., In Defense of Dissents, 37 HASTINGS L.J. 427, 428
(1986); see Laura Krugman Ray, Justice Brennan and the Jurisprudence of Dissent,
61 TEMP. L. REV . 307, 309 (1988) (“[A] well reasoned dissent serves a valuable
function by correcting erroneous majority opinions, restraining more extreme
majority positions, and prompting legislative changes.”).
93.
Escalante-Reyes, 689 F.3d at 441–47 (Smith, J., dissenting) (listing every case in
the Fifth Circuit where the court reached the fourth prong).
94.
Id. at 426, 433 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9
(2004)). Judge Smith also highlighted language from other key cases indicating plain
error relief should be rare. Id. at 433. Appellate courts should only address “particularly
egregious errors,” meaning this relief ought to be “used sparingly.” United States v.
Young, 470 U.S. 1, 15 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 & n.14
(1982)). Furthermore, the power to grant relief is “limited” and “strictly circumscribed.”
Puckett v. United States, 556 U.S. 129, 134 (2009); United States v. Olano, 507 U.S. 725,
735–36 (1993). “Meeting all four prongs is difficult, ‘as it should be.’” Puckett, 556 U.S. at
135 (quoting Dominguez Benitez, 542 U.S. at 83 n.9).
95.
Escalante-Reyes, 689 F.3d at 433 (Smith, J., dissenting) (quoting United States
v. Poitra, 648 F.3d 884, 889 (8th Cir. 2011)); see John, 597 F.3d at 287 (observing the
Fifth Circuit has been “generous” in granting plain error relief).
96.
Compare Escalante-Reyes, 689 F.3d at 426 (Smith, J., dissenting) (discussing
how the seriousness requirement is satisfied in 70% of cases), with Poitra, 648 F.3d at 889
(finding the fourth prong to be “formidable”).
97.
See Escalante-Reyes, 689 F.3d at 435–37, 441 (Smith, J., dissenting) (describing
the harm from not taking the word “seriously” seriously enough).
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A. Judge Smith Demonstrates the Fifth Circuit Has Failed to
Defer to Sentencing Courts
To demonstrate the scope of the problem, Judge Smith
compiled two appendices: Appendix A detailed the 250 times the
Fifth Circuit reached the fourth prong (and whether the court
granted plain error relief), and Appendix B listed all fifty-nine
district court judges who have been reversed on plain error.98 In
Appendix A, about 200 of the 250 plain error cases involved
sentencing issues.99 Furthermore, all but one of the fifty-nine of the
judges listed in Appendix B are still sitting as of December 2013.100
In effect, the collective case law suggests current district court
judges are seriously erring during sentencing, thereby seriously
affecting the fairness, integrity, and public reputation of the judicial
proceedings.101 Furthermore, the case law suggests these judges will
continue to err in this way.102
98.
Id. at 441–49.
99.
Id. at 441–47. Of the 180 reversed cases, 146 of them related to sentencing. Id. at
441–45. Of the seventy affirmed cases, forty-nine of them related to sentencing. Id. at 445–47.
In addition, Escalante-Reyes itself is a sentencing case. Id. at 418 n.2.
100. See id. at 447–49 (listing fifty-nine federal district court judges reversed for plain
error); Judges’ Procedures (& Schedules), S. DIST. OF TEX., http://www.txs.uscourts.gov/
district/judges/ (last visited Apr.14, 2014) (listing all current judges in the Southern District of
Texas); Judges, Division, Courthouse and General Court Information, E. DIST. OF TEX.,
http://www.txed.uscourts.gov/page1.shtml?location=info (last visited Apr. 14, 2014) (listing all
current judges in the Eastern District of Texas); Judge’s Contact and Biography Information,
W. DIST. OF TEX., http://www.txwd.uscourts.gov/general/judges/biographylist.asp (last visited
Apr. 14, 2014) (listing all current judges in the Western District of Texas and referring to
Judge Alia Ludlum as Judge Alia Moses); Judges, N. DIST. OF TEX.,
http://www.txnd.uscourts.gov/judges/index.html (last visited Apr. 14, 2014) (listing all current
judges in the Northern District of Texas); District Judges, E. DIST. OF LA.,
http://www.laed.uscourts.gov/Directories/alpha_judges.htm (last visited Apr. 14, 2014) (listing
all current judges in the Eastern District of Louisiana); Court Directory, W. DIST. OF LA.,
http://www.lawd.uscourts.gov/Docs/CourtDir.pdf (last visited Apr. 14, 2014) (listing all current
judges in the Western District of Louisiana); Biographies—Article III Judges, MIDDLE DIST. OF
LA., http://www.lamd.uscourts.gov/history/judgebio.htm (last visited Apr. 14, 2014) (listing all
current judges in the Middle District of Louisiana); Our Judges, S. DIST. OF MISS.,
http://www.mssd.uscourts.gov/judges-information (last visited Apr. 14, 2014) (listing all current
judges in the Southern District of Mississippi); Judge’s Information, N. DIST. OF MISS.,
http://www.msnd.uscourts.gov/judicialofficers.htm (last updated Apr. 14, 2014) (listing all
current judges in the Northern District of Mississippi). Judge Polozola of the Middle District of
Louisiana died on February 24, 2013. Biographies—Article III Judges, supra; Robert Stewart
& Bill Lodge, Federal Judge Frank Polozola Dies, ADVOCATE (Feb. 26, 2013),
http://theadvocate.com/home/5281568-125/federal-judge-frank-polozola-died.
101. See United States v. Olano, 507 U.S. 725, 732 (1993) (quoting United States v.
Young, 470 U.S. 1, 15 (1985)) (holding that an appellate court “should not exercise [plain error
relief] unless the error seriously affects the fairness, integrity or public reputation of judicial
proceedings” (internal quotations omitted)); Escalante-Reyes, 689 F.3d at 441–49 (Smith, J.,
dissenting) (demonstrating the scope of plain error relief in the Fifth Circuit).
102. Escalante-Reyes, 689 F.3d at 441–49 (Smith, J., dissenting). Compare United States
v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004) (holding plain error should be granted only
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However, this suggestion that district court judges are the
problem is inconsistent with data from the U.S. Sentencing
Commission.103 The data demonstrate that the district courts in
Texas, Louisiana, and Mississippi are some of the most diligent in
adhering to the Federal Sentencing Guidelines.104 This high level of
diligence suggests that appellate courts ought to be more deferential
because the district courts are doing precisely what they should be
doing: following the legislative guide.105 Instead, the problem is at
the appellate level, where judges have been less deferential to the
district courts while applying the fourth prong.106
B. Appellate Courts Have Read the Word “Seriously” out of the
Fourth Prong
When proper deference is not given to district court judges,
the appellate judges are reading the word “seriously” out of the
fourth prong.107 This issue with the word “seriously” comes from
the lack of direct guidance from the Supreme Court, which was
discussed above.108 Therefore, when applying the fourth prong,
each word, including “seriously,” ought to be considered in light
of its plain meaning unless a party can demonstrate the Supreme
Court intended a different meaning.109 This fundamental
“rarely”), with United States v. John, 597 F.3d 263, 287 (5th Cir. 2010) (granting “generous”
plain error relief).
103.
See Escalante-Reyes, 689 F.3d at 436 (Smith, J., dissenting) (defending the
diligence of district court judges); U.S. SENTENCING COMM’N, PRELIMINARY QUARTERLY
DATA REPORT, 4TH QUARTER RELEASE, PRELIMINARY FISCAL YEAR 2013 DATA THROUGH
SEPT. 30, 2013, at 4 (2013), available at http://www.ussc.gov/Data_and_Statistics/
Federal_Sentencing_Statistics/Quarterly_Sentencing_Updates/USSC_2013_Quarter_Repo
rt_4th.pdf (indicating the district judges of Texas, Louisiana, and Mississippi adhere to
the Guidelines range in 67.2% of cases).
104. See U.S. SENTENCING COMM’N, supra note 103, at 1–7 (detailing each district’s
number of criminal sentences that are within the Federal Guidelines range). The district
courts within the Fifth Circuit gave sentences that fell within the guideline range 67.2% of the
time. Id. at 4. In fact, the Fifth Circuit had the highest percentage of all the circuits. Id. at 1–7.
The national average of all the circuits was 51.2%. Id. at 1.
105. Id. at 1–8; see supra Part II.C (discussing policy reasons for deference to district
courts).
106. See Escalante-Reyes, 689 F.3d at 436 (Smith, J., dissenting) (discussing the harms of
failing to defer to the district court).
107.
Id. at 426, 433–36, 441.
108.
See supra notes 72–77 and accompanying text (discussing a lack of Supreme
Court guidance on the fourth prong).
109.
See FED. R. CRIM. P. 52(b) (providing the legislative basis for plain error review);
United States v. Olano, 507 U.S. 725, 732 (1993) (selecting precise wording from previous
cases in articulating the fourth prong of plain error review); United States v. Padilla, 415
F.3d 211, 218 (1st Cir. 2005) (en banc) (observing that plain error is “not entirely a judgemade construct,” but instead derives originally from FED. R. CRIM. P. 52(b)); William N.
Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 626 (1990) (arguing that when
courts are interpreting statutes, they ought to look to the plainest meaning of each word
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interpretation strategy is precisely what is lacking in plain error
jurisprudence because the Supreme Court has not articulated a
strategy for applying the fourth prong.110 Without an independent
test for the fourth prong, courts are doomed to “wad[] up the first
three prongs of plain error review and stuff[] them into the
empty skin of the fourth prong to give it some sign of life.”111 If
the proper course is to “consign[] the fourth prong to oblivion,”
the Supreme Court of the United States (not the individual
circuit courts) ought to be the one to remove the prong from plain
error review entirely.112 In the meantime, federal appellate
courts ought to apply the plain meaning of “seriously” and
restrict its discretion to reversing errors that are “weighty” and
“important.”113 This plain meaning approach can help to combat
the fourth prong’s unpredictable nature.114
unless other evidence of legislative intent contradicts this interpretation); Abbe R. Gluck,
The States as Laboratories of Statutory Interpretation: Methodological Consensus and the
New Modified Textualism, 119 YALE L.J. 1750, 1762 (2010) (discussing how a textualist
approach to statutory interpretation leads to interpretive predictability); Harry G. Prince,
Contract Interpretation in California: Plain Meaning, Parol Evidence and Use of the “Just
Result” Principle, 31 LOY. L.A. L. REV. 557, 568 (1998) (addressing how the plain meaning
of words guide contract interpretation). But see Stephen A. Siegel, Textualism on Trial:
Article III’s Jury Trial Provision, the “Petty Offense” Exception, and Other Departures
from Clear Constitutional Text, 51 HOUS. L. REV. 89, 96–102 (2013) (analyzing situations
when the Supreme Court departs from clear constitutional directives).
110.
See Johnson v. United States, 520 U.S. 461, 469–70 (1997) (considering the
fourth prong for the sake of argument but holding the third prong was not satisfied);
Olano, 507 U.S. at 741 (holding that the third prong was not satisfied and therefore did
not reach the fourth prong); Escalante-Reyes, 689 F.3d at 438–40 (Smith, J., dissenting)
(arguing the majority has erred by presuming the fourth prong is satisfied if the first
three prongs are satisfied); Cunningham, supra note 25, at 301–03 (observing that leading
Supreme Court plain error cases, such as Olano and Johnson, never reached the fourth
prong); see also United States v. Ellis, 564 F.3d 370, 378 (5th Cir. 2009) (“Not every error
that increases a sentence need be corrected by a call upon plain error doctrine.”).
111.
Escalante-Reyes, 689 F.3d at 440 (Smith, J., dissenting).
112.
Id.; see U.S. CONST. art. III, § 1 (vesting the judicial power in one Supreme
Court and allowing the creation of “inferior” courts); Evan H. Caminker, Why Must
Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817, 823–24 (1994)
(observing that lower courts must obey courts with revisory jurisdiction, such as circuit
courts having to follow the Supreme Court, which has final appellate review); see also
ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 10.3.1 (1989) (discussing the Supreme
Court’s jurisdiction).
113. BLACK’S LAW DICTIONARY 1490 (9th ed. 2009); see supra note 109 and accompanying
text (arguing appellate courts should apply plain meaning rule to interpreting Supreme Courtcreated tests).
114. See Escalante-Reyes, 689 F.3d at 440–41 (arguing the Fifth Circuit has assumed the
fourth prong away); supra notes 72–77 (discussing the lack of Supreme Court precedent on the
fourth prong).
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IV. WHY SO SERIOUS? FINDING THE PLAIN MEANING OF
“SERIOUSLY”
With his unpredictable nature, The Joker runs amok in
Gotham City, flaunting the law and unleashing chaos in the film
The Dark Knight.115 Before Batman can restore order, The Joker
delivers a monologue where he poses a simple (yet arguably his
most famous) question: “Why so serious?”116
This simple question should guide an appellate court’s
analysis in applying the fourth prong of plain error review for
three reasons. First, the question ensures the word “seriously”
is not read out of the fourth prong because courts will consider
the plain meaning of “seriously.”117 Before a court reverses for
plain error, the defendant needs to convince the judge the
error is serious enough to answer this simple question.118 This
approach would yield a more consistent analysis.119 Second, the
question will encourage defendants only to appeal errors
relating to a “matter so absolutely vital to [them]” because
those errors are necessarily serious.120 Furthermore,
defendants would have a better ability to gauge the strength of
their case and the probability of winning on appeal.121 Third,
the question reminds an appellate judge to be deferential to
the sentencing court and only to reverse errors to avoid a
“miscarriage of justice.”122 In sum, a more precise meaning of
“seriously” would appease judges like Judge Smith, who
concedes there are cases an appellate court “may legitimately
115.
THE DARK KNIGHT, supra note 1. The Joker intentionally tells conflicting versions of
how he became a villain, justifying the contradictions by saying “[i]f I’m going to have a past, I
prefer it to be multiple choice!” ALAN MOORE, BATMAN: THE KILLING JOKE: THE DELUXE
EDITION 39 (2008); see THE DARK KNIGHT, supra note 1 (recounting at least two different ways
The Joker received the scars on his face).
116.
THE DARK KNIGHT, supra note 1.
117.
Escalante-Reyes, 689 F.3d at 426, 441 (Smith, J., dissenting); see supra note 109
and accompanying text (arguing for plain meaning approach to the fourth prong).
118.
See United States v. Olano, 507 U.S. 725, 734–36 (1993) (limiting discretion to
reverse to serious unpreserved errors).
119.
Compare United States v. John, 597 F.3d 263, 287 (5th Cir. 2010) (describing
the Fifth Circuit as “generous” when remanding cases for plain error), with United States
v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004) (requiring plain error relief to be
“rare[]”).
120.
See Wiborg v. United States, 163 U.S. 632, 658–59 (1896) (defining plain errors
as “absolutely vital” to the defendant).
121.
See Palmer, supra note 15, at 35 (observing that uncertainty and complexity
plague our predictive judgments in litigation).
122.
See Olano, 507 U.S. at 736 (quoting United States v Young, 470 U.S. 1, 15
(1985)) (limiting discretion judges have to reverse under plain error).
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consider exercising [its] limited and circumscribed discretion
to reverse.”123
Therefore, this Comment attempts to answer the question
“Why so serious?” by proposing three tests to see if an error
fulfills the seriousness requirement of the fourth prong. These
tests will address the basic problems of uncertainty and
complexity in predicting the outcome of this type of
litigation.124 The next three Subparts in this Comment assign a
test for each of the three parts of the fourth prong: “fairness,”
“integrity,” and “public reputation.”125 Each test helps analyze
whether a sentencing court has seriously affected the judicial
proceedings.
A. The Fairness Test: Whether the Error Has an “Extremely
Disproportionate Impact” on the Sentence
The Fairness Test examines whether an error has created an
“extremely disproportionate impact” on a defendant’s sentence.126
This “extremely disproportionate impact” standard answers the
question “Why so serious?” by focusing on whether “the punishment
fit[s] the crime.”127 If the punishment (i.e., the defendant’s sentence)
is extremely disproportionate to the crime, the error satisfies the
seriousness requirement of the fourth prong, and a court should
reverse the error.128 For example, in one case, an error doubled a
defendant’s sentence, forcing him to serve more than seven extra
years in prison.129 Such an extremely disproportionate impact on the
defendant’s sentence seriously affected the fairness of the judicial
proceedings.130
123.
See United States v. Escalante-Reyes, 689 F.3d 415, 440–41 (5th Cir. 2012)
(Smith, J., dissenting) (arguing that plain error review may be considered when the error
has offended core notions of justice).
124.
See Palmer, supra note 15, at 35 (defining litigation prediction problems in
terms of uncertainty and complexity).
125.
See Olano, 507 U.S. at 735–36 (quoting United States v. Atkinson, 297 U.S. 157,
160 (1936)).
126.
See United States v. Jordan, 256 F.3d 922, 926–28 (9th Cir. 2001) (articulating
the standard of “extremely disproportionate impact”); see also Olano, 507 U.S. at 736
(quoting Young, 470 U.S. at 15) (allowing the circuit courts to have discretion only to
review miscarriages of justice).
127.
Jordan, 256 F.3d at 926–27, 934; ROBERT S. HUNTER ET AL., TRIAL HANDBOOK
FOR ILLINOIS LAWYERS—CRIMINAL SENTENCING § 1:1 (9th ed. 2012) (quoting THE MIKADO
(Universal Pictures 1939)).
128.
Jordan, 256 F.3d at 926, 929, 933–34.
129.
Id. at 929, 934.
130.
Id. at 933.
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1. Other Circuit Courts Provide Examples of Seriously
Unfair Circumstances. The First, Second, Seventh, and Tenth
Circuits have expressly agreed with the Supreme Court’s
restrictive approach to plain error review. The First Circuit held
that plain error excludes “the ordinary backfires . . . which may
mar a trial record” and instead “notice[s] unpreserved errors only
in the most egregious circumstances.”131 The Second Circuit said
that plain errors are “so egregious and obvious as to make the
trial judge and prosecutor derelict in permitting it, despite the
defendant’s failure to object.”132 The Seventh Circuit measures
the egregiousness of the error in order to “prevent[] a miscarriage
of justice.”133
Circuit courts reverse errors “in those rare cases in which
core notions of justice are offended.”134 These violations of the
core notions of justice usually lead to an extremely
disproportionate impact upon the defendant’s sentence.135 The
Tenth Circuit elaborated on the core notions of justice, giving two
examples of when the error satisfies the seriousness
requirement. Courts can commit plain error when (1) “the
sentence exceeds the statutory maximum”136 or (2) “the
sentencing court employs an improper burden of proof.”137
In Maxwell v. United States, the district court sentenced the
defendant to a term of supervised release that exceeded the
statutory maximum by eleven months.138 The Fourth Circuit
determined the sentence seriously affected the fairness, integrity, or
public reputation of judicial proceedings.139 Furthermore, the court
determined that leaving the defendant with these “substantial”
restrictions on his liberty for an extra year was “fundamentally
131.
United States v. Taylor, 54 F.3d 967, 972–73 (1st Cir. 1995) (quoting United
States v. Griffin, 818 F.2d 97, 100 (1st Cir. 1987)); see United States v. Padilla, 415 F.3d
211, 223–24 (1st Cir. 2005) (en banc) (agreeing that “only the clearest and most serious of
forfeited errors should be corrected”).
132.
United States v. Vasquez, 267 F.3d 79, 87 (2d Cir. 2001) (quoting United States
v. Gore, 154 F.3d 34, 43 (2d Cir. 1998)).
133.
United States v. Conley, 291 F.3d 464, 470 (7th Cir. 2002) (citing Lieberman v.
Washington, 128 F.3d 1085, 1095 (7th Cir. 1997)).
134.
United States v. Gonzalez-Huerta, 403 F.3d 727, 739 (10th Cir. 2005) (en banc).
The Tenth Circuit also evaluates the errors to see if they are “particularly egregious.” Id.
at 736 (quoting United States v. Gilkey, 118 F.3d 702, 704 (10th Cir. 1997)).
135.
See, e.g., United States v. Maxwell, 285 F.3d 336, 342–43 (4th Cir. 2002)
(reversing a sentence exceeding the statutory maximum); Jordan, 256 F.3d at 933
(reversing for applying an improper burden of proof).
136.
Gonzalez-Huerta, 403 F.3d at 739 (citing Maxwell, 285 F.3d at 342).
137.
Id. (citing Jordan, 256 F.3d at 933).
138.
Maxwell, 285 F.3d at 342.
139.
Id.
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unfair.”140 In fact, the court said this situation is comparable to
forcing someone to spend extra time in prison.141
In United States v. Jordan, the Ninth Circuit held the district
court erred by failing to apply the clear and convincing evidence
standard when enhancing the defendant’s sentence.142 The
defendant, Ronald Jordan, committed a bank robbery, and he
received two enhancements to his sentence: one for having a
firearm and one for abducting a witness.143
The evidence supporting both of these enhancements was
“questionable.”144 For the firearm enhancement, one of the
customers claimed to have seen the butt of the gun in Jordan’s
hand.145 None of the bank staff had seen any gun, but one teller
“believed” Jordan might have had one concealed.146 However, none
of these witnesses testified under oath, nor did Jordan get to crossexamine them at trial.147 Furthermore, the probation officer did not
interview these witnesses to find out more about what they knew.148
Instead, the presentence report merely repeated the unsworn
statements given to police.149
For the abduction enhancement, the sole evidence was the
testimony of Carolyn Howard, the alleged victim, but it was not
given under oath or subject to cross-examination.150 In addition,
Howard’s polygraph test results did not rule out the possibility that
she knew Jordan before the incident.151 If she did know Jordan
beforehand, the problem is that the prosecution had failed to meet
the clear and convincing standard; specifically, the prosecution
must demonstrate the victim was “forced to accompany the offender
140.
Id. at 342–43.
141.
Id. at 343 (quoting United States v. Ford, 88 F.3d 1350, 1356 (4th Cir. 1996)).
142.
Jordan, 256 F.3d at 933. Clear and convincing evidence must be persuasive
enough that it creates a “firm belief or conviction that the allegations in question are
true.” CLIFFORD S. F ISHMAN, 1 J ONES ON EVIDENCE : CIVIL AND CRIMINAL § 3:10 (7th
ed. 1992) (quoting Masaki v. Gen. Motors Corp., 780 P.2d 566, 574 (Haw. 1989))
(internal quotation marks omitted).
143.
Jordan, 256 F.3d at 923–24, 931.
144.
Id. at 931.
145.
Id. at 931–32; see also U.S. SENTENCING GUIDELINES MANUAL § 2B3.1(b)(2)(C)
(2012) (increasing a sentence by five levels “if a firearm was brandished or possessed”
during a robbery).
146.
Jordan, 256 F.3d at 932.
147.
Id.
148.
Id.
149.
Id.
150.
Id. at 924, 932–33; see also U.S. SENTENCING GUIDELINES MANUAL
§ 2B3.1(b)(4)(A) (2012) (increasing a sentence by four levels if “any person was abducted
to facilitate [the] commission of the offense”).
151.
Jordan, 256 F.3d at 932–33.
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to a different location.”152 Therefore, the prosecution did not
eliminate the possibility that Howard accompanied Jordan
willingly—at least, not by the higher evidentiary standard.153
The error in applying the wrong evidentiary standard had an
“extremely disproportionate impact” on the total sentence, more
than doubling the sentence from about eight years to more than
fifteen years.154 Wrongfully imposing an extra seven to eight years
of incarceration is more than just unfair; it is seriously unfair.155
Both of these are examples of “matter[s] so absolutely vital to
[the] defendant[]” and therefore remain consistent with the
fundamental roots of the plain error doctrine set forth in Wiborg.156
Specifically, maximum statutory sentences and burdens of proof are
similar to Wiborg’s emphasis on the mens rea requirement in that
they safeguard defendants and their most fundamental rights.157
These two examples are consistent with a plain meaning of
“seriously”—in other words, they refer to things that are “weighty”
or “important.”158 Furthermore, even Judge Smith would likely
endorse reversal of these serious errors because appellate judges
“may legitimately consider exercising [their] limited and
circumscribed discretion to reverse” in such rare cases.159
2. Applying the Fairness Test to Ensure a More Just
Result. Outside of these rare cases, the Fairness Test would urge
appellate judges to affirm sentences that do not rise to the level
152.
Id. at 932–33; U.S. SENTENCING GUIDELINES MANUAL § 1B1.1, Application
Notes (1)(A) (2012).
153.
Jordan, 256 F.3d at 932–33.
154.
Id. at 929–30. Jordan’s sentence was erroneously increased from a range of 70–
87 months to a range of 151–188 months. Id. at 929.
155.
See id. at 933 (noting that this extra incarceration satisfies the “seriously”
language of the fourth prong).
156.
Compare United States v. Gonzalez-Huerta, 403 F.3d 727, 739 (10th Cir. 2005)
(en banc) (listing two examples that satisfy all four prongs of plain error review), with
Wiborg v. United States, 163 U.S. 632, 658 (1896) (defining plain error as “a matter so
absolutely vital to defendants”).
157.
Compare supra notes 136–55 and accompanying text (providing examples of
how to satisfy the fourth prong), with supra Part II.B (discussing the importance of a
guilty mental state in the context of the Wiborg case).
158.
Compare supra notes 131–37 and accompanying text (quoting several
circuits to demonstrate their approval of a restrictive approach to plain error review),
with BLACK ’S L AW DICTIONARY 1490 (9th ed. 2009) (defining “serious” as “weighty” or
“important”).
159.
See United States v. Escalante-Reyes, 689 F.3d 415, 433, 440–41 (5th Cir.
2012) (Smith, J., dissenting) (arguing that plain error review may be considered in
rare cases where the error has offended core notions of justice).
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of having an “extremely disproportionate impact.”160 For
example, in United States v. Carrizales-Jaramillo, the Fifth
Circuit reversed a sentence that was one month above the correct
sentencing range.161 The defendant appealed his sentence for
illegal reentry because the court enhanced his sentence by
considering an eleven-year-old cocaine possession conviction.162
The court erred because it should not have considered convictions
that are more than ten years old.163 Therefore, the court should
have sentenced the defendant to thirty months at the most, but
the court erroneously sentenced him to thirty-one months.164
This one-month difference should not satisfy the
seriousness requirement of the fourth prong because one
month is not “extremely disproportionate” to the defendant’s
sentence.165 Compared to an erroneous enhancement of more
than seven years, the error in Carrizales-Jaramillo has a
negligible impact.166 Furthermore, the district court was even
trying to be lenient when sentencing the defendant to thirtyone months.167 The one-month difference and the court’s intent
to be lenient do not seriously undermine the fairness of the
federal judicial process.168 Therefore, the Fifth Circuit ought to
have affirmed the sentence in this case to encourage
defendants to object at the sentencing hearing and to prevent
“litigants [from] abus[ing] the judicial process.”169 Moreover,
had the defense lawyer made a timely objection, the
160.
See United States v. Olano, 507 U.S. 725, 735–36 (1993) (articulating the
seriousness standard); Jordan, 256 F.3d at 926–27, 933 (creating the “extremely
disproportionate impact” standard).
161.
United States v. Carrizales-Jaramillo, 303 F. App’x 215, 216–17 (5th Cir. 2008)
(per curiam).
162.
Id.
163.
Id. at 216; see U.S. SENTENCING GUIDELINES MANUAL § 4A1.2(e)(2) (2012)
(discussing applicable time periods for computing criminal history).
164.
Carrizales-Jaramillo, 303 F. App’x at 216–17.
165.
See id. (reversing for error impacting sentence by one month); see also Jordan,
256 F.3d at 929, 933–34 (reversing error impacting sentence by more than seven years).
166.
Compare Carrizales-Jaramillo, 303 F. App’x at 216–17 (reversing error
impacting sentence by one month), with Jordan, 256 F.3d at 929, 933–34 (reversing error
impacting sentence by more than seven years).
167.
See Carrizales-Jaramillo, 303 F. App’x at 216 (noting the district court
sentenced towards the low end of what it deemed the proper Guidelines range).
168.
Id. at 216–17; see United States v. Olano, 507 U.S. 725, 735–36 (1993) (holding
an error must be serious in order to warrant reversal).
169. See TRAYNOR, supra note 87, at 50. The Fifth Circuit has declined to adopt a
blanket rule of reversing an error whenever the first three prongs are satisfied. United
States v. Reyna, 358 F.3d 344, 352 (5th Cir. 2004) (en banc). However, reversing an error
where a court sentences a defendant by an extra month makes it seem as though the Fifth
Circuit has contradicted itself and adopted such a blanket rule. Carrizales-Jaramillo, 303 F.
App’x at 216–17; Reyna, 358 F.3d at 352.
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sentencing court could have remedied the error quickly and
efficiently, which is a more just result overall.170
B. The Integrity Test: Whether the Sentencing Judge’s Behavior
Was “Derelict, Craven, and Irresponsible”
“Your guilt has been determined. This is merely a
sentencing hearing. Now what will it be? Death or exile?”171 In
The Dark Knight Rises, Dr. Jonathan Crane—also known as
The Scarecrow—conducted sentencing hearings after Gotham
City was taken over by criminals.172 The choice he gave the
defendants who came before him—exile or death—was not a
choice at all.173 Specifically, either choice led to the defendant
having to walk on thin ice outside the city, which would crack,
causing the person to fall into the water and die.174 In fact, this
sentence was given to everyone—regardless of the crime
alleged.175
In order to deter such judicial behavior, the Integrity Test
examines the behavior of the sentencing judge and urges the
appellate court to reverse if the behavior is “derelict, craven,
and irresponsible.”176 Sentencing judges should be reversed in
these rare cases because they have abandoned the relevant
legislative guide and are acting beyond their authority.177 In
effect, judges acting without a legislative guide command an
“almost wholly unchecked and sweeping power[].”178 These
errors seriously affect the integrity of the judicial proceedings
because they violate the idea of checks and balances.179 In
these situations, the sentencing hearing turns into a Catch-22
for the defendants: they simply cannot win, no matter what
170. See supra Part II (discussing how timely objections serve judicial economy and
give defendants a more favorable standard of relief on appeal).
171. THE DARK KNIGHT RISES (Warner Bros. Pictures 2012).
172. Id.
173. Id.
174. Id.
175. Id.
176. See United States v. Escalante-Reyes, 689 F.3d 415, 433–36 (5th Cir. 2012)
(Smith, J., dissenting).
177. See United States v. Gonzalez-Huerta, 403 F.3d 727, 736, 739 (10th Cir. 2005) (en
banc); NICHOLAS N. KITTRIE ET AL., SENTENCING, SANCTIONS, AND CORRECTIONS: FEDERAL
AND STATE LAW, POLICY, AND PRACTICE 209–10 (2d ed. 2002).
178. KITTRIE ET AL., supra note 177, at 206.
179. See KATE STITH & JOSÉ A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES
IN THE FEDERAL COURTS 105 (1998) (“A just sentence must also be . . . imposed
through . . . due process of law in a constitutional scheme of checks and balances.”); infra
Part IV.B.2 (discussing an example of a judge making a plain error in sentencing).
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they say or do.180 In sum, the Integrity Test urges appellate
courts to be deferential to sentencing courts unless the
sentencing judge has committed a “particularly egregious”
error.181
1. Acting with Integrity: What Rules Judges Have to
Follow. In order to assess whether a sentencing judge has
committed a “particularly egregious” error, appellate courts
should examine the rules and law that judges must follow.182
Canon 1 of the Code of Conduct for United States Judges says
that “[a] judge should maintain and enforce high standards of
conduct and should personally observe those standards, so that
the integrity and independence of the judiciary may be
preserved.”183 In order to perform the duties of the office “fairly,
impartially and diligently,” a judge must give “every person who
has a legal interest in a proceeding . . . the full right to be heard
according to law.”184
In addition to these rules, judges are encouraged to follow a
legislative guide: the Federal Sentencing Guidelines.185 The
purpose of the Guidelines is to combat disparity in sentences.186
Said another way, “the almost wholly unchecked and sweeping
180.
Infra Part IV.B.2 (demonstrating an example of a judge imposing a certain
sentence because she always imposes it when the specific crime is charged); see also
JOSEPH HELLER, CATCH-22 46 (Simon & Schuster Paperbacks 2004) (explaining what a
Catch-22 is); Alyssa Ladd, Comment, The Catch-22 of Corporate Cooperation in Foreign
Corrupt Practices Act Investigations, 51 HOUS. L. REV. 947, 948, 962 (2014) (applying the
concept of Catch-22 to corporate compliance, criminal fees, and defamation). In Catch-22,
American Air Force pilots could become exempt from flying combat missions if they were
crazy. HELLER, supra, at 45. But the policy of Catch-22 says that requesting to be taken
off active duty out of concern for one’s safety while flying combat missions was rational.
Id. at 46. Therefore, it did not matter if pilots were crazy or sane; they all inevitably flew
in combat missions. Id.
181.
United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States v. Frady,
456 U.S. 152, 163 (1982)); Escalante-Reyes, 689 F.3d at 433–36 (Smith, J., dissenting).
182.
See JUDICIAL CODE OF CONDUCT FOR UNITED STATES JUDGES §§ 1–5 (2009),
available at http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct/CodeConduct
UnitedStatesJudges.aspx (listing rules all judges must follow).
183.
JUDICIAL CODE OF CONDUCT FOR UNITED STATES JUDGES, supra note 182, § 1
(emphasis added). “This Code applies to United States circuit judges, district judges,
Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges,
and magistrate judges.” Id. § 1 introductory cmt.
184.
Id. § 3(A)(4).
185.
See United States v. Booker, 543 U.S. 220, 264 (2005) (holding that the
Guidelines are not mandatory, but they provide judges a framework that furthers the
objectives of sentencing).
186.
KITTRIE ET AL., supra note 177, at 201–03; STITH & CABRANES, supra note 179,
at 48–49. In 1977, the length of the average sentence varied greatly by district, with as
little as less than one year in the District of New Hampshire and more than eight years in
the Eastern District of North Carolina. KITTRIE ET AL., supra note 177, at 201.
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powers we give to judges in the fashioning of sentences are
terrifying and intolerable for a society that professes devotion to
the rule of law.”187 Therefore, in formulating a sentence, certain
factors are pivotal, such as the gravity of the particular offense
and the defendant’s prior record, age, and background.188
Much of the information used by a judge in formulating the
sentence is included in the presentence report.189 The probation
officer must conduct a presentence investigation and report to
the court before the imposition of a sentence.190 This
investigation usually includes “an in-depth interview with the
defendant at the probation office.”191 In essence, the presentence
report is connected with the rehabilitative model of sentencing.192
Specifically, the process assumes that “a sentencing judge, armed
with an intimate knowledge of the offender’s character and
background and aided by scientific and clinical evaluations, can
determine an appropriate sentence and treatment program that
will rehabilitate the offender.”193
Beyond these factors, determining additional relevant
factors and how much weight to give each factor is a difficult
task.194 In fact, the Sentencing Commission concedes that “it is
difficult to prescribe a single set of guidelines that encompasses
the vast range of human conduct potentially relevant to a
sentencing decision.”195 From this perspective, the Commission
“views the guideline-writing process as evolutionary.”196 Indeed,
187.
KITTRIE ET AL., supra note 177, at 206.
188.
Id. at 207.
189.
See FED. R. CRIM. P. 32(d) (discussing what must be contained in a presentence
report); Stephen A. Fennell & William N. Hall, Due Process at Sentencing: An Empirical
and Legal Analysis of the Disclosure of Presentence Reports in Federal Courts, 93 HARV. L.
REV. 1613, 1621–23 (1980) (discussing the purpose of the information in the report).
190.
FED. R. CRIM. P. 32(c)(1).
191.
Fennell & Hall, supra note 189, at 1623.
192.
Id. at 1621.
193.
Id. at 1621–22.
194.
KITTRIE ET AL., supra note 177, at 207.
195.
U.S. SENTENCING GUIDELINES MANUAL § 1A1.4(b) (2012). In fact, Judge William
K. Sessions III, who once served as Chair of the U.S. Sentencing Commission, has argued
that “the current Federal Sentencing Guidelines do not adequately address offender
characteristics.” William K. Sessions III, The Relevance of Offender Characteristics in a
Guideline System, 51 HOUS. L. REV. 1207, 1212 (2014). He has suggested that “[t]he
Guidelines should be amended to encourage judges to engage in broader and deeper
analysis of offender characteristics.” Id.
196.
U.S. SENTENCING GUIDELINES MANUAL § 1A1.2 (2012). Many sentencing
scholars have recently provided thoughtful analyses on how the Guidelines system should
continue to evolve. See, e.g., Frank O. Bowman, III, Dead Law Walking: The Surprising
Tenacity of the Federal Sentencing Guidelines, 51 HOUS. L. REV. 1227 (2014); Melissa
Hamilton, Prison-by-Default: Challenging the Federal Sentencing Policy’s Presumption of
Incarceration, 51 HOUS. L. REV. 1271 (2014); Carissa Byrne Hessick, A Critical View of the
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although the Guidelines are not binding on district court judges,
the case law indicates that judges are, in practice, required to
undertake an analysis very similar to that required by the
Guidelines to avoid reversal.197
A great example of a district judge working within a
legislative guide to render firm and fair decisions is Judge Irving
R. Kaufman.198 He once said that at sentencing “[t]he judge must
take [a] legislative guide and apply it to the particular
circumstances of the case before him. He must work within the
legislative formula, even if he does not agree with it.”199
Furthermore, Judge Kaufman observed that sometimes the
circumstances “will demand the most severe penalties set by the
statute.”200 He articulated the difficult balance that a judge must
find when sentencing:
[Every judge] knows that in many cases a prison term
not only withers the life of the prisoner but spreads
like a stain in an ever-widening circle, blighting the
lives of innocent members of the family. Every judge is
painfully aware of what five years without a father
may mean to a prisoner’s son. But society must be
protected, crime must be deterred, dangerous offenders
must be segregated, and prisoners must be reformed.201
Indeed, this statement is consistent with the basic
purposes of the Sentencing Guidelines: “deterrence,
Sentencing Commission’s Recent Recommendations to “Strengthen the Guidelines System”,
51 HOUS. L. REV. 1335 (2014).
197.
See Rita v. United States, 551 U.S. 338, 354–56 (2007) (finding that it is lawful
to presume that a sentence within the Guidelines is reasonable); see also Bowman, supra
note 196, at 1232 (“The upshot of these opinions has been that, although post-Booker
sentencing judges remain obligated to find all the same facts and apply all the same
Guidelines rules to determine a legally correct guideline range as they did before Booker,
they are now effectively empowered to ignore the results of all this effort when imposing
the actual sentence.”).
198.
Irving Kaufman, Sentencing: The Judge’s Problem, THE ATLANTIC MONTHLY,
Jan. 1960, available at http://www.theatlantic.com/past/docs/unbound/flashbks/death/
kaufman.htm. In his most difficult decision, Judge Kaufman made history when he
imposed the death penalty on two spies convicted of stealing the atomic bomb secret for
Russia. William R. Conklin, Atom Spy Couple Sentenced to Die; Aide Gets 30 Years, N.Y.
TIMES, Apr. 6, 1951. The Second Circuit affirmed this sentence on appeal. United States v.
Rosenberg, 195 F.2d 583, 609 (2d Cir. 1952). The Supreme Court denied certiorari.
Rosenberg v. United States, 344 U.S. 838, 838 (1952).
199.
Kaufman, supra note 198.
200.
Id.
201.
Id.; see also Sessions, supra note 195, at 1213 (“For many judges, sentencing is a
fundamentally human, not legal, endeavor.”).
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incapacitation, just punishment, and rehabilitation.” 202
Following these guiding principles will protect against errors
that
“seriously
affect[] the . . . integrity . . . of
judicial
203
proceedings.”
However, when judges willfully ignore a
relevant legislative guide, the justice system becomes “derelict,
craven, and irresponsible.”204
2. United States v. Alvarado: An Example of Reversible
Judicial Behavior. In United States v. Alvarado, a sentencing
judge ignored the relevant legislative guide and seriously
undermined the integrity of judicial proceedings.205 In this
case, the Fifth Circuit vacated a sentence and remanded for
resentencing because the district judge imposed a lifetime
sentence of supervised release without engaging in any
analysis of the particular facts of the case.206 Border patrol
arrested 24-year-old Adrian Alvarado after he was found with
21 kilograms of marijuana.207 While under arrest, the police
seized his mobile phone.208 The phone contained a video of a
minor female engaging in a sexually explicit act.209 Upon
further investigation, the police learned the young girl
considered Alvarado to be her boyfriend and had sent videos
and pictures of herself at his request.210 Alvarado was charged
with sexual exploitation of a child, receipt of child
pornography, and possession of child pornography. 211
The Fifth Circuit found plain error because the judge made a
statement that implied she automatically defaulted to imposing a
lifetime term in cases like these.212 Specifically, she said,
“I’ve . . . never not given, since it was authorized . . . a lifetime
202.
Compare Kaufman, supra note 198 (describing the tough process of sentencing
from a judge’s perspective), with U.S. SENTENCING GUIDELINES MANUAL § 1A1.2 (2012)
(enumerating the principles of the Guidelines).
203.
See United States v. Olano, 507 U.S. 725, 732 (1993) (quoting United States v.
Young, 470 U.S. 1, 15 (1985)) (defining the fourth prong of plain error review); U.S.
SENTENCING GUIDELINES MANUAL § 1A1.2 (2012) (discussing the basic sentencing
principles).
204.
See United States v. Escalante-Reyes, 689 F.3d 415, 436 (5th Cir. 2012) (Smith,
J., dissenting) (evaluating whether a court’s behavior is “derelict, craven, and
irresponsible”).
205.
United States v. Alvarado, 691 F.3d 592, 594, 598 (5th Cir. 2012).
206.
Id.
207.
Id. at 594.
208.
Id.
209.
Id.
210.
Id.
211.
Id. at 594–95.
212.
Id. at 598.
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supervision in child pornography.”213 The judge was correct that
the Sentencing Guidelines recommend a statutory maximum
term of supervised release if the conviction is a sex offense.214
However, automatically imposing such a significant punishment
is what seriously affects the integrity of the judicial
proceedings.215
3. Applying the Integrity Test. Outside of errors where the
judge automatically imposes a sentence, the Integrity Test would
urge appellate courts to defer to the district court judges, who
have reviewed the entire record and all the evidence. Several
months after Alvarado, the same district court judge imposed
lifetime supervised release (in addition to a sentence of twentyseven months in prison) for a defendant who had failed to
register as a sex offender, and the Fifth Circuit reversed the
judge yet again in United States v. Fraga.216 The Fifth Circuit
justified their holding by saying Alvarado was controlling and
indistinguishable from the case at bar.217
Fraga provides a good example of how the Integrity Test
ought to be applied. In light of the Integrity Test, several factors
distinguish Fraga from Alvarado and should have led the Fifth
Circuit to affirm the sentence in Fraga. First, the judge did not
abandon the relevant legislative guide as she did in Alvarado.218
In Fraga, the district judge gave a two-part sentence: twentyseven months of imprisonment and lifetime supervision.219 For
the imprisonment part, the judge considered the Section 3553(a)
factors,220 listened to the defendant’s mitigating evidence, and
213.
Id.
214.
Id.; U.S. SENTENCING GUIDELINES MANUAL § 5D1.2(b)(2) (2012).
215.
Alvarado, 691 F.3d at 598. “We caution that even when a given term of
supervised release term is strongly recommended by the Guidelines, district courts should
refrain from imposing that recommended term blindly and without careful consideration
of the specific facts and circumstances of the case before it.” United States v. Kuchler, 285
F. App’x. 866, 870 n.2 (3d Cir. 2008) (citing United States v. Thompson, 483 F.2d 527, 529
(3d Cir. 1973)).
216.
United States v. Fraga, 704 F.3d 432, 434–35, 441–42 (5th Cir. 2013).
217.
Id. at 442.
218.
Compare id. at 438, 441–42 (conceding that the sentencing judge gave an
“adequate explanation” for imposing a prison sentence in light of the statutory factors but
refusing to infer the judge used the same reasoning to impose a lifetime supervised
sentence), with Alvarado, 691 F.3d at 598 (concluding the district judge failed to consider
the circumstances of the crime altogether).
219.
Fraga, 704 F.3d at 434.
220.
18 U.S.C. § 3553(a) (2012) (requiring sentencing judges to consider the
circumstances of the offense, the need for the sentence imposed, the kinds of sentences
available, the kinds of ranges available, policy statements, the avoidance of sentence
disparities, and the need to provide restitution to victims).
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gave an “adequate explanation” for giving a longer prison
sentence, as required by statute.221 Specifically, the judge found
this imprisonment necessary “to deter further criminal conduct
and protect the public.”222 By contrast, this analysis is completely
missing from Alvarado.223 Second, the Fifth Circuit refrains from
condemning the judge’s behavior.224 Specifically, the Fifth Circuit
concedes it “could arguably [have] infer[red] the sentencing
judge’s reasons” for the lifetime supervision.225 Arguably, the
appellate judges do not have to infer much; they merely had to
review the district judge’s expressly stated explanation for the
twenty-seven-month imprisonment, which the Fifth Circuit
admits was “adequate.”226 In particular, the lifetime supervised
release of a sex offender would also serve to “to deter further
criminal conduct and protect the public.”227 Finally, the judge’s
statement in Fraga does not imply an automatic imposition of
lifetime supervised release.228 In Fraga, the judge says she
“usually” imposes lifetime supervised release, while in Alvarado,
she “never” considered a lesser sentence.229 The Fifth Circuit
could conclude the sentence was automatic in Alvardo, but the
word “usually” means the judge might choose to rule differently
on these facts.230 The possibility of a different ruling means the
Fraga sentence was not automatic.231 In light of these factors, the
Fifth Circuit should not have reversed the district court because
the judge neither engaged in “derelict, craven, or irresponsible”
behavior nor abandoned the relevant legislative guide.232
221.
Fraga, 704 F.3d at 438.
222.
Id.
223.
See Alvarado, 691 F.3d at 598 (reviewing the record and concluding the
sentencing judge failed to “engag[e] in any analysis of the circumstances surrounding
Alvarado’s crime”).
224.
See Fraga, 704 F.3d at 442 n.33 (admitting the sentencing judge’s reasoning
could be “arguably infer[red]”).
225.
Id.
226.
Id at 438.
227.
Id.
228.
Compare id. at 442 (“I usually . . . give . . . life supervised release in these
situations.”), with Alvarado, 691 F.3d at 598 (“I’ve . . . never not given . . . a lifetime
supervision in child pornography.”).
229.
Fraga, 704 F.3d at 442; Alvarado, 691 F.3d at 598.
230.
Fraga, 704 F.3d at 442; Alvarado, 691 F.3d at 598.
231.
Fraga, 704 F.3d at 442.
232.
See id. (reversing the sentence); supra Part IV.B.1 (discussing what to consider
under the Integrity Test).
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C. The Public Reputation Test: Whether the Court Violated the
Defendant’s Constitutional or Due Process Rights
The Public Reputation Test examines whether the district
court violated the defendant’s constitutional or due process
rights. The public reputation of the federal judiciary is often
linked to whether the courts have adhered to constitutional
principles.233 Therefore, in order to protect the public reputation
of the courts, this test reverses errors that have seriously
impacted such rights as freedom of religion, the right to access
information, or the due process right to speak at a hearing.
The Public Reputation Test draws upon four factors, called the
Krynicki factors, from the First Circuit to assess errors potentially
violating constitutional rights.234 Specifically, the Krynicki factors
are whether (1) the new issue was “purely legal” with a fully
developed record; (2) the argument for reversal was “highly
persuasive . . . leaving no doubt as to the proper resolution”; (3) the
issue “is almost certain to arise in other cases”; and (4) “declining to
reach [the issue] would result in a miscarriage of justice.”235
Later, the Supreme Court echoed this consideration of
constitutional violations while articulating the current plain error
test, saying: “No procedural principle is more familiar to this
Court than that a constitutional right . . . may be forfeited in
criminal as well as civil cases by the failure to make timely
233.
See, e.g., Lydia Saad, Americans Issue Split Decision on Healthcare Ruling,
GALLUP P OLITICS (June 29, 2012), http://www.gallup.com/poll/155447/AmericansIssue-Split-Decision-Healthcare-Ruling.aspx (discussing how the majority of
Americans believe that politics played a large role in the Patient Protection and
Affordable Care Act ruling); Frank Newport, Jeffrey M. Jones & Lydia Saad, Gallup
Editors: Americans’ Views on the Healthcare Law, GALLUP POLITICS (June 22, 2012),
http://www.gallup.com/poll/155300/Gallup-Editors-Americans-Views-HealthcareLaw.aspx (explaining that 72% of Americans believe that the individual mandate,
contained in the Patient Protection and Affordable Care Act is unconstitutional).
Americans recently graded the Supreme Court’s performance on whether politics,
instead of the Constitution, have played “too great a role” in its decision on the
Affordable Health Care Act. Saad, supra. The Affordable Care Act continues to
inspire spirited debate among experts in the field. See, e.g., Mark A. Hall, Evaluating
the Affordable Care Act: The Eye of the Beholder, 51 H OUS. L. REV. 1029 (2014); David
Orentlicher, The Future of the Affordable Care Act: Protecting Economic Health More
than Physical Health?, 51 H OUS. L. REV. 1057 (2014); William M. Sage, Putting
Insurance Reform in the ACA’s Rear-View Mirror, 51 HOUS. L. REV. 1081 (2014).
234.
United States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990) (“[I]f the
defendants’ constitutional claim has merit, it would be a rank miscarriage of justice
to allow their sentences to stand.”); United States v. Krynicki, 689 F.2d 289, 291–92
(1st Cir. 1982). The First Circuit articulated these factors before the Supreme Court
promulgated the current plain error test in 1993. United States v. Olano, 507 U.S.
725, 732–34 (1993); Krynicki, 689 F.2d at 291–92.
235.
Krynicki, 689 F.2d at 291–92; Weigand, supra note 41, at 203–04.
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assertion of the right before a tribunal having jurisdiction to
determine it.”236
The Supreme Court’s use of the phrase “may be” suggests
that a constitutional error does not require automatic
reversal.237 However, that same phrase indicates these
constitutional grievances are not automatically forfeited
either.238 Therefore, a defendant ought to evaluate his
constitutional argument by consulting the Krynicki factors to
increase the probability of a successful appeal.239
1. United States v. Borders: An Example of a
Constitutional Plain Error. United States v. Borders provides an
example of a successful appeal of an unpreserved constitutional
error.240 The Sixth Circuit reversed a special condition of a
defendant’s supervised release because the condition violated his
First Amendment rights.241 The defendant, Milton Thomas Borders,
“ordered and received child pornography in the form of catalogs and
two DVDs.”242 One special condition of his sentence was that he
could “not view, listen to, or possess anything sexually explicit or
suggestive, including, but not limited to, books, videos, magazines,
computer files, images, and internet sites.”243
The court ruled that the phrase “or suggestive” made the
special condition plain error.244 Specifically, the prohibition would
“cover the Bible and other religious texts, and a huge quantity of
literature, music, and other media, and would thus infringe on
Borders’s First Amendment rights to receive information and to
freely exercise religion.”245
Two of the Krynicki factors seem particularly applicable in
a case like Borders’s.246 First, Borders’s argument against the
special consideration is “highly persuasive” because the
236. Olano, 507 U.S. at 731 (quoting Yakus v. United States, 321 U.S. 414, 444 (1944))
(internal quotations omitted).
237. Id.
238. Id.
239. Id.; La Guardia, 902 F.2d at 1013; Krynicki, 689 F.2d at 291–92.
240. United States v. Borders, 489 F. App’x 858, 860, 863–64 (6th Cir. 2012).
241. Id. at 863–64.
242. Id. at 860.
243. Id. at 863.
244. Id.
245.
Id. (citations omitted); see Reno v. Am. Civil Liberties Union, 521 U.S. 844,
874 (1997) (describing First Amendment right to receive information); Hudson v.
Palmer, 468 U.S. 517, 547 n.13 (1984) (Stevens, J., concurring in part and
dissenting in part) (discussing the right of free exercise of religion).
246.
Borders, 489 F. App’x at 863–64; United States v. Krynicki, 689 F.2d 289,
291–92 (1st Cir. 1982).
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condition is so sweeping, and preventing Borders from reading
religious texts such as the Bible has nothing to do with
stopping him from consuming any form of pornography.247
Second, the issue is “almost certain to arise in other cases”
because of the frequency of sentencing cases involving child
pornography.248 Thus, this error violated a First Amendment
right and therefore seriously harmed the public reputation of
judicial proceedings.249
2. United States v. Adams: An Example of a Due Process
Plain Error. Beyond errors harming First Amendment rights,
the sentencing court can commit plain errors that could
threaten due process.250 For example, a sentencing court
violates the “core notions of justice” when the judge denies the
defendant his right of allocution (or the defendant’s right to
speak).251 The defendant’s right to speak is consistent with
“[t]he fundamental requirement of due process,” which
requires “the opportunity to be heard ‘at a meaningful time
and in a meaningful manner.’”252 A defendant speaking in his
own defense before receiving his sentence is such a time and
manner.253
In United States v. Adams, the Third Circuit ruled the
sentencing court committed plain error when it denied the
defendant, Michael Anthony Adams, the right of allocution.254
In this case, Adams pled guilty to two counts of robbery.255
During the sentencing hearing, the judge addressed Adams’s
247. Borders, 489 F. App’x at 863–64; Krynicki, 689 F.2d at 291–92.
248. Borders, 489 F. App’x at 863–64; Krynicki, 689 F.2d at 291–92; U.S. SENTENCING
COMM’N, supra note 103, at 8 (indicating 1,897 cases of child pornography in a year).
249.
Borders, 489 F. App’x at 863.
250. See United States v. Adams, 252 F.3d 276, 288–89 (3d Cir. 2001) (reversing for plain
error when a defendant was denied his right to allocution); see also Mathews v. Eldridge, 424
U.S. 319, 333 (1976) (holding that the opportunity to be heard at a meaningful time and place
is a fundamental requirement of due process).
251. United States v. Gonzalez-Huerta, 403 F.3d 727, 739 (10th Cir. 2005) (citing Adams,
252 F.3d at 288–89). When denying a defendant the right to speak, the judge has violated the
obligation to give “every person who has a legal interest in a proceeding . . . the full right to be
heard according to law.” JUDICIAL CODE OF CONDUCT FOR UNITED STATES JUDGES § 3A(4)
(2009),
available
at
http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct/
CodeConductUnitedStatesJudges.aspx.
252.
Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)).
253.
See id. (discussing the importance of the opportunity to be heard and
acknowledging the high stakes of criminal proceedings).
254.
Adams, 252 F.3d at 277, 288–89.
255.
Id. at 278.
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lawyer, asking, “Would your client like to exercise his right of
allocution?”256 After a pause, Adams’s lawyer said, “No.”257
In this instance, the trial court erred because the Federal
Rules of Criminal Procedure specifically requires the court to
“address the defendant personally in order to permit the
defendant to speak or present any information to mitigate the
sentence.”258 The Third Circuit reasoned that the right of
allocution is “the type of important safeguard that helps assure
the fairness, and hence legitimacy, of the sentencing process.”259
Moreover, the Supreme Court has said the right of allocution
was recognized as early as 1689, and the denial of the right requires
reversal.260 Allocution is important because it provides an
opportunity for the sentencing court to correct errors.261 In this way,
allocution is similar to objecting at trial, thereby remedying an error
without resorting to the reversal of an appellate court.262
3. Applying the Public Reputation Test in Allocution
Cases. Errors relating to allocution should not always warrant
reversal under plain error. The Public Reputation Test would
seek to apply the Krynicki factors to such alleged plain errors to
see if the error has seriously harmed the judicial proceedings by
denying the defendant the right to speak. For example, in United
States v. Perez, the Fifth Circuit reversed the defendant’s
sentence because the court did not “give [the defendant] an
opportunity to speak on any topic of his choosing.”263 If the
appellate judges had used the Public Reputation Test in deciding
Perez, the court would have affirmed the sentence instead of
reversing it.264
First, the defendant’s argument fails to be “highly
persuasive” because both the defendant and the court overlooked
256.
257.
258.
259.
260.
261.
Id.
Id.
FED. R. CRIM. P. 32(i)(4)(A)(ii) (emphasis added); Adams, 252 F.3d at 277, 289.
Adams, 252 F.3d at 288.
Green v. United States, 365 U.S. 301, 304 (1961).
Kimberly A. Thomas, Beyond Mitigation: Towards a Theory of Allocution, 75
FORDHAM L. REV. 2641, 2646–47 (2007).
262.
Compare id. at 2647 (observing that allocution gives sentencing courts an
opportunity to correct error), with Cunningham, supra note 25, at 289, 293
(discussing how timely objections increase efficiency by allowing the trial court to
address the problem).
263.
United v. Perez, 460 F. App’x 294, 299 (5th Cir. 2012).
264.
Id.
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the substance of what the defendant did have a chance to say.265
The sentencing judge addressed the defendant, asking him
whether he lived in Laredo.266 In response to this narrow
question, the defendant gave a thorough response.267 Specifically,
he discussed (1) his upbringing in Laredo; (2) his time living on
the streets in Mexico; (3) his struggle to get support from his
family back in the United States; (4) the fact that he had spent
“more jail time than . . . with [his] family”; and (5) his desire not
to go back to jail.268 This information is precisely the type judges
must consider to determine a sentence.269
Second, the error does not make reversal necessary to
avoid a miscarriage of justice.270 Specifically, the defendant did
not make the argument he wanted to discuss new topics not
already addressed at the sentencing hearing.271 Alternatively,
if he did make this argument, he would have to demonstrate
why these topics were “absolutely vital” to his defense and how
the judge’s failure to hear them was an “egregious error[].”272
Instead, the judge was able to consider the defendant’s
thorough discussion, along with a statement by the defendant’s
lawyer, before rendering a judgment.273 In light of this analysis
under the Public Reputation Test, the Fifth Circuit should
have affirmed the sentence because it did not seriously affect
the fairness, integrity, or public reputation of judicial
proceedings.274
265.
Id. (recounting the defendant’s full statement); United States v. Krynicki,
689 F.2d 289, 292 (1st Cir. 1982) (requiring a defendant make an argument that is
“highly persuasive” in order to reverse errors).
266.
Perez, 460 F. App’x at 297.
267.
Id.
268.
Id.
269.
Compare id. (summarizing the defendant’s statement in front of the court),
with 18 U.S.C. § 3553(a) (2012) (requiring judges to consider the circumstances of the
offense).
270.
See Perez, 460 F. App’x at 299 (finding that the defendant was not allowed to
discuss any topic of his choosing); Krynicki, 689 F.2d at 292 (granting reversal to avoid a
“miscarriage of justice”).
271. See Brief for Appellant at 22, Perez, 460 F. App’x 294 (No. 11–40383) (discussing how
the defendant wished to address the allegations against him personally). In his brief, the
defendant admitted that the district court doubted some of the allegations against him. Id.
Therefore, if the defendant himself spoke about the allegations at this point, he would have
emphasized the weakness of the allegations rather than raising them for the first time. Id.
272. Id.; see United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States v.
Frady, 456 U.S. 152, 163 (1982)) (requiring an unpreserved error to be “particularly egregious”
in order to reverse); Wiborg v. United States, 163 U.S. 632, 658 (1896) (demanding an
unpreserved error to be “absolutely vital” to the defendant in order to reverse).
273. Perez, 460 F. App’x at 297–98.
274. See United States v. Olano, 507 U.S. 725, 732 (1993) (defining seriousness
requirement); supra notes 233–39 and accompanying text (defining Public Reputation Test).
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V. CONCLUSION
When evaluating whether an error “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings,”
appellate courts should ask a simple question: “Why so serious?”275
The Joker’s famous question reminds defendants that they have the
burden in plain error review.276 Specifically, they must demonstrate
why the error is serious enough to answer this question.277 In
addition, the question reminds appellate judges to defer to
sentencing courts and to encourage the preservation of error unless
the error relates to “a matter so absolutely vital to [the]
defendant[].”278 Armed with this question, courts can combat the
unpredictable nature of plain error review.279
This Comment attempts to answer the question “Why so
serious?” by providing three tests: the Fairness Test, the
Integrity Test, and the Public Reputation Test. These three
tests ensure the word “seriously” is given a more definite
meaning by demonstrating when unpreserved sentencing
errors turn into “miscarriage[s] of justice.”280 First, the
Fairness Test requires defendants to demonstrate an
unpreserved error had an “extremely disproportionate impact”
on the length of their sentence.281 Second, the Integrity Test
evaluates a judge’s behavior to see if they have abandoned the
relevant legislative guide and engaged in “derelict, craven, and
irresponsible” behavior.282 Third, the Public Reputation Test
provides four factors for analyzing errors that potentially
violated a defendant’s constitutional and due process rights.
In sum, these tests are intended to help defense lawyers
determine whether their clients have viable arguments on appeal
for unpreserved errors in federal court.283 Furthermore, federal
275. Olano, 507 U.S. at 732 (quoting United States v. Young, 470 U.S. 1, 15 (1985)); THE
DARK KNIGHT, supra note 1.
276. See United States v. Monroe, 353 F.3d 1346, 1352 (11th Cir. 2003) (discussing the
defendant’s burden in plain error review); THE DARK KNIGHT, supra note 1 (“Why so serious?”).
277. Olano, 507 U.S. at 732; THE DARK KNIGHT, supra note 1.
278. Wiborg v. United States, 163 U.S. 632, 658 (1896); Monroe, 353 F.3d at 1353–54;
CAMPBELL, supra note 78, § 14:4.
279. United States v. Escalante-Reyes, 689 F.3d 415, 440–41 (5th Cir. 2012) (Smith, J.,
dissenting) (arguing the Fifth Circuit has assumed the fourth prong away); THE DARK KNIGHT,
supra note 1 (“Why so serious?”); supra notes 72–77 and accompanying text (discussing the
lack of Supreme Court precedent on the fourth prong).
280. Olano, 507 U.S. at 736 (quoting Young, 470 U.S. at 15); Escalante-Reyes, 689 F.3d at
441 (Smith, J., dissenting); see supra Part IV.A–C (articulating three tests).
281. See United States v. Jordan, 256 F.3d 922, 926–27 (9th Cir. 2001).
282. Escalante-Reyes, 689 F.3d at 436 (Smith, J., dissenting).
283.
See Palmer, supra note 15, at 35 (observing that uncertainty and complexity
“plague our predictive judgments in litigation”).
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judges can promulgate these tests to ensure the word “seriously”
is taken seriously enough.284
Edward Goolsby
284.
See Escalante-Reyes, 689 F.3d at 441 (Smith, J., dissenting) (remarking that the
word “seriously” is not being taken seriously enough).