Opinion analysis: To guideline err is human, to review is now de norm

In my preview of Molina-Martinez v. United States a few months ago, I suggested that petitioner Saul Molina-Martinez’s attorney would face an uphill battle trying to convince the Justices to adopt a presumption of prejudice as part of plain-error review when a sentence was based on an erroneous guideline range not noticed until appeal. Consequently, it was not surprising that the Supreme Court’s ruling today in Molina-Martinez v. United States did not formally adopt such a presumption; indeed, the Court expressly stated that “courts reviewing sentencing error cannot apply a categorical rule” when conducting plain-error review under Federal Rule of Criminal Procedure 52(b). But while not adopting a presumption of prejudice formally, the majority opinion authored by Justice Anthony Kennedy came pretty close to adopting such a rule functionally, and now it ought to be easier for defendants in the Fifth Circuit (and elsewhere) to have Federal Sentencing Guidelines errors addressed for the first time on appeal.

Formally, the holding in this case was relatively narrow, as it merely overruled the Fifth Circuit’s approach to plain-error review in this sentencing context. As explained by the Justices, the Fifth Circuit erred in holding that, “if a defendant’s ultimate sentence falls within what would have been the correct Guidelines range, the defendant, on appeal, must identify ‘additional evidence’ to show that use of the incorrect Guidelines range did in fact affect his sentence.” When explaining why this was erroneous, the Court made much of the continued importance of the guidelines at sentencing and stated that “[w]hen a defendant is sentenced under an incorrect Guidelines range — whether or not the defendant’s ultimate sentence falls within the correct range — the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” By indicating that a guideline calculation error alone “most often will” suffice for a defendant to satisfy the prejudice prong of plain-error review under Rule 52(b), and then later suggesting that only in “unusual circumstances” might a defendant subject to a guideline error be required to show more, the Court’s opinion in this case arguably came as close as possible to establishing a presumption of prejudice in this context without formally doing so.

No doubt because the majority’s opinion in this case could be read to greatly ease a federal defendant’s burdens during plain-error review, Justice Samuel Alito dropped a lengthy footnote in his concurrence to warn lower courts against interpreting the Court’s opinion “as instructions . . . to side with the forfeiting defendant unless the Government can point to ‘unusual circumstances’.” Alito, joined by Justice Clarence Thomas, acknowledged that the specific facts in the case at hand were sufficient to show prejudice because the guidelines were the “focal point” of the sentencing proceedings in the district court. Nevertheless, explained Alito, it remained important for lower courts to apply Rule 52(b) “on a case-by-case basis,” and thus the Court’s opinion ought not be read as “replacing the Fifth Circuit’s inflexible pro-Government presumption with an equally inflexible pro-defendant presumption.”

These intricate doctrinal discussions arose in the resolution of an appeal by Molina-Martinez, a Mexican citizen with a long criminal record, who was charged with and pleaded guilty to being unlawfully in the United States after having been deported for an aggravated felony. A Presentence Report (PSR) calculated his advisory sentencing-guidelines range to be 77 to 96 months of imprisonment. At sentencing, the district court adopted the PSR’s calculations; the court thereafter heard the prosecution advocate for “a high end sentence of 96 months” while Molina-Martinez’s counsel argued for a 77-month (bottom-of-the-guideline-range) prison term. The district court sentenced Molina-Martinez to 77 months in prison.

On appeal, Molina-Martinez figured out, and the government conceded, that the district court had erred in calculating his advisory guidelines range: with his criminal history properly scored, Molina-Martinez should have faced a proper guideline range of 70 to 87 months, instead of 77 to 96 months. The Fifth Circuit held that this claim was reviewable only for plain error under Federal Rule of Criminal Procedure 52(b), and it concluded Molina-Martinez had not established that the guideline error affected his substantial rights to satisfy the requirements for plain-error review. In so doing, the Fifth Circuit rejected Molina-Martinez’s contention, based on Supreme Court dicta in United States v. Olano and rulings in two courts of appeals, that any error in calculating a guidelines range should be considered presumptively prejudicial. In the Fifth Circuit’s view, because Molina-Martinez’s sentence fell within both guidelines ranges, he had “to point to ‘additional evidence’ in the record, other than the difference in ranges, to show an effect on his substantial rights.”

Echoing arguments stressed by Molina-Martinez at oral argument, the majority opinion in this case made much of the Court’s prior ruling in Peugh v. United States to stress the guidelines’ continuing centrality to federal sentencing. For example, the majority opinion, after a series of extended quotes from Peugh, stated that the “Guidelines’ central role in sentencing means that an error related to the Guidelines can be particularly serious.” The Court went on to explain that the “centrality of the Guidelines in the sentencing process” necessarily meant that in “most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome” had the proper guideline range be considered.

Responding to prosecutorial concerns about the potential impact of its ruling, the Court’s opinion noted that its holding was “consistent with the approach taken by most Courts of Appeals,” and that “only a small fraction of cases are remanded for resentencing because of Guidelines related errors.” Consequentially, it seems unlikely that more than a handful of plain-error appeals will be significantly impacted by the formal holding in this case.

Indeed, though the federal government lost in this case, I am inclined to predict that in the foreseeable future federal prosecutors more often than federal defendants are going be keen to embrace many parts of this ruling. In most sentencing proceedings before federal district courts, prosecutors are often stressing the importance of guideline ranges, while defense attorneys are often urging a judge to consider non-guideline mitigating factors. With the array of pro-guidelines dicta in today’s opinion — for example, the Court stressed that district courts “must begin the analysis with the Guidelines” and that the guidelines serve “not only [as a] starting point … but also the lodestar” — I would expect to see more cites to this decision in prosecutors’ sentencing memoranda than in those filed by defense attorneys.