Argument preview: What arguments are preserved, and how, in federal sentencing appeals?
When a federal criminal defendant has already requested a lower sentence than the judge ultimately imposes, must that defendant again note an objection after the sentence is announced, to preserve anything other than “plain error” appellate review? The general doctrine that a failure to object can forfeit an appellate claim is well-established. Thus Federal Rule of Criminal Procedure 52(b) provides that an “error … not brought to the [trial] court’s attention” may be reviewed only for “plain error.” On the other hand, Rule 51(b) explains that “[a] party may preserve a claim of error by informing the court – when the court ruling is made or sought – of the action the party wishes the court to take.”
Next Tuesday the justices will hear argument in Holguin-Hernandez v. United States to resolve a circuit split about how these two rules play out in federal sentencing proceedings. It is an unusual case because the solicitor general has conceded that the U.S. Court of Appeals for the 5th Circuit erred, so the court has appointed an amicus to argue in support of the judgment. Although the case is not of earth-shattering importance – and the following discussion will appeal only to federal sentencing wonks – the court could use this vehicle to clear up some doctrinal confusion.
Facts, ruling, and state of the law
In 2016, Gonzalo Holguin-Hernandez, a Mexican citizen, pled guilty to the federal crime of possession of marijuana with intent to distribute, after admitting that he had entered the United States illegally to smuggle the drug. He was sentenced to 24 months of imprisonment, to be followed by two years of supervised release. After completing his prison term and then being removed from the United States, Holguin-Hernandez was again apprehended in Texas in possession of marijuana. He pled guilty to the new drug-trafficking offense, and he received a new 60-month prison term.
Because Holguin-Hernandez had committed his new offense while he was on supervised release from the first conviction, the United States also petitioned for revocation of the supervised release. Federal law authorizes a term of up to three years for the supervised-release violation, and Holguin-Hernandez’s federal sentencing guidelines range was 12-18 months. “Resentencings” for supervised-release violations after an original sentence has been imposed are governed, just like the original sentencing, by the factors listed in 18 U.S.C. § 3553(a).
At the revocation hearing, Holguin-Hernandez admitted having violated the terms of his supervised release. His counsel argued that there was “no reason under 3553” for any additional prison time in addition to the five years already imposed. She asked the court to impose “no additional time or certainly less than the guidelines.” Her arguments for this position included: that no additional deterrence was needed; that Holguin-Hernandez’s role was “overrepresented”; that his circumstances were sympathetic; and that it is “incredibly expensive … to keep a man like this in prison.” But saying that “the underlying case … means something,” the district judge imposed an additional, consecutive 12 months in prison. The judge then asked, “Anything further?” (seeming to mean “beyond what has already been argued”), and Holguin-Hernandez’s counsel said no.
Holguin-Hernandez then appealed his additional 12-month sentence, arguing that it was unreasonable because it was “greater than necessary to effectuate the sentencing goals of … §3553(a).” But the 5th Circuit affirmed, writing that because Holguin-Hernandez “failed to raise his challenges in the district court, our review is for plain error only.” Although this might look like simple clear error – Holguin-Hernandez surely did “raise his challenges” below – the court noted that “there is a circuit split” on the appropriate standard of review. In fact, the 5th Circuit has applied a rule that a defendant must register an objection to a sentence after it is imposed since its 2007 decision in U.S. v. Peltier. Peltier expressly rejected the U.S. Court of Appeals for the 7th Circuit’s opposite approach (with which every other circuit to consider the question has agreed).
Holguin-Hernandez petitioned for certiorari on the question “whether a formal objection” to reasonableness is required after sentence is imposed, in order to preserve full appellate review. Although the solicitor general opposed certiorari, arguing that the standard of review would make no difference, he agreed with Holguin-Hernandez that “the court of appeals incorrectly applied plain-error review.” The solicitor general argued, then and now, that for “substantive-reasonableness claims, … [w]hen a defendant argues for a given sentence and the district court imposes a different sentence, the defendant has already put the court on notice of his objection to the length of the sentence.”
Does the plain language of Rules 51 and 52 resolve this case?
All parties agree that after United States v. Booker, appellate review of federal sentences is for “reasonableness,” to be evaluated under the factors legislatively specified in Section 3553(a). As for appellate review of such “substantive reasonableness” claims, the solicitor general and the criminal defendant both argue that this case should be resolved by the plain text of Rule 51. Under that rule, a “claim of error” is preserved if the defendant has “inform[ed] the court,” when a ruling “is sought,” of “the action” the defendant “wishes the court to take.” Thus, when a defendant has argued that a lower sentence is appropriate and the court then imposes a higher sentence, that should be enough to “preserve” the defendant’s appellate claim that the sentence imposed was unreasonable. As Rule 51(a) explicitly provides, “exceptions to rulings or orders of the court are unnecessary” – so long as, under 51(b), the defendant has previously “inform[ed] the court” of the ruling sought.
The parties argue that Rule 52 further supports this reading. It provides that a “plain error” appellate standard may apply when the error “was not brought to the court’s attention” below. The solicitor general argues that “[a]s a matter of common sense,” defendants who argue for a lower sentence have “brought to the court’s attention” that they believe a higher sentence would be inappropriate, so that Rule 51, not 52, applies.
Not so fast, argues the appointed amicus. “It is well established … that a party must timely assert an argument in the district court to preserve it for appeal.” Unless this “timely assertion principle” and cases supporting it are to be abandoned, then defendants must present the district court with their arguments – that is the “facts and circumstances” that support their sentencing request – and not merely say that they prefer a lower sentence. Defendants must, the amicus argues, assert specifically that any sentence other than the one they request would be “substantively unreasonable” – not just preferred – and explain why. In support, the amicus notes that the second half of Rule 51(b) requires a party to inform the court of “the party’s objection … and the grounds for that objection.” The “better reading” of the rule’s prior “action sought” requirement, says the amicus, is that this “statement of grounds” requirement should apply throughout the rule.
Holguin-Hernandez and the solicitor general respond that Rule 51 is plainly stated in the alternative, and that the “grounds for the objection” requirement does not apply to the first part of the rule. They argue that this reading is consistent with both the history and purpose of the rule: to eliminate a “formalistic” requirement of stating “exception” after every court ruling (which, as the 7th Circuit’s 2005 opinion noted, would “burden busy district courts”).
In addition, they argue that the amicus’ approach confuses the appellate “reasonableness” standard for reviewing federal sentences with the “inform the court” requirement of Rule 51 that is relevant to preservation of appellate claims. Defendants need not argue to the district court that any sentence other than the one they propose is “unreasonable.” That is the substantive issue for appeal and, Holguin-Hernandez argues, it is implicit in every defense-sentencing request: The “reasonable” sentence is the one the defense requests, and if the district court imposes a higher sentence, then the defendant may appeal.
Is there a silent “procedural/substantive” distinction in Rule 51?
In a prior case involving circuits that had split over the appellate review of federal sentences (Molina-Martinez v. United States), the court explained that its role is to “reconcile the difference in approaches” if it can. Holguin-Hernandez’s case may present a similar opportunity.
Although arguing that the plain-error standard should not apply to review of the “substantive reasonableness” of noticed-sentencing claims, the solicitor general agrees with the amicus that the particular arguments made to support a sentencing appeal must have been presented to the district court, and that only plain error review should apply to specific arguments not made below. This is consistent with the rules as announced in a leading opinion on the topic by the en banc U.S. Court of Appeals for the 6th Circuit. Similarly, the courts of appeals have adopted, and the solicitor general endorses, a “procedural/substantive” distinction for federal sentencing appeals: Although an appeal of “substantive” reasonableness is preserved simply by arguing for a different sentence, “procedural” errors that are not objected to after they occur are not (except for “plain error” review). “Procedural” errors include, for example, errors in calculation of the guideline range, relying on clearly erroneous facts, inaccurately stating or considering Section 3553(a) factors and the like. Such errors must be specifically noted at the time, so that the district court has a fair opportunity to correct them.
But the amicus correctly notes that Rule 51 expresses no distinction between “procedural” and “substantive” errors (and then further argues that this supports application of a strict “grounds for objection” requirement for all sentencing appeals). Although the solicitor general rejects the amicus’ “facts and circumstances” or “grounds” position, page 23 of the solicitor general’s brief appears to come close to adopting it in some circumstances.
The elusive distinction between substance and procedure has long bedeviled courts and scholars like. Given that Rule 51 does not mention such a distinction, the court might choose to address it here. Common ground might be found in the distinction that Rule 51 already provides: a distinction between “actions” a defendant wants a court to take, and specific “objections” to the actions of the court. That is, as the amicus explains and the solicitor general appears to agree, specific sentencing arguments — or “facts and circumstances” to support such arguments — that are not presented to the trial court might be waived or forfeited. At the same time, a request for the “action” of a lower sentence — or as the solicitor general puts it, the “basic objection that the district court made an unreasonable substantive decision” — is preserved for full appellate review even if the defendant does not state a formal “exception” at the end of the sentencing proceeding. Rather than perpetuate an atextual procedural/substantive distinction, the court may choose to simply affirm the accepted distinction between actions requested and the specific arguments presented to support them.
The parties also disagree about the proper disposition.
The parties present three different options for the appropriate disposition of Holguin-Hernandez’s case after the court resolves the appropriate standard of review. Holguin-Hernandez argues that if the court reviews the reasonableness of the additional 12 months of prison time, it should rule that the extra term is substantively unreasonable: The “extra term was ‘greater than necessary’ to effectuate the purposes of Section 3553(a).” Otherwise, says Holguin-Hernandez, the court should remand to the appeals court for application of the proper standard of review to Holguin-Hernandez’s facts.
The solicitor general urges the court to stick with its “ordinary practice” of vacating and remanding when the wrong standard of review has been applied. However, if the court were to reach the “reasonableness” merits, the government agrees with the amicus that “it is difficult to see” how a different result than the sentence already imposed could be reached.
Finally, the amicus argues that Holguin-Hernandez’s sentence should be affirmed under any standard of review, because the 5th Circuit was correct that no “clear or obvious error” was made here, so that “the district court’s reasonable sentence” should not be disturbed in any case.
Even though the issues are arcane, expect to hear questions at oral argument from the federal sentencing experts: Justices Samuel Alito, Sonia Sotomayor and Stephen Breyer. Whether they will agree, and what the court will say about the procedural/substantive distinction, will have to wait. A dispositive opinion should issue relatively quickly, meaning before spring break.