Tuesday, March 01, 2005

Booker and Plain Error

United States v. Robert D. Palladino, et al., Case No. 03-2296 (02/25/2005), and United States v. Marcus Lee, Case No. 03-4239 (02/25/2005): Both opinions deal with the context of the defendant’s not raising a Booker objection in the district court. Palladino (which is a consolidated opinion for several cases) is the lengthier opinion and sets out the Seventh Circuit’s approach to Booker plain errors. Lee, heard before a panel with a somewhat different composition, merely applies the Palladino analysis. Both opinions were circulated to the full Court and are the functional equivalents of en banc opinions. Judges Ripple and Kanne, neither of whom was a member of either panel, dissented from denial of rehearing en banc.

Palladino observed that the problem is that the reviewing court will seldom know what the district court would have done had the objection been brought to its attention at the proper time. It identified some situations in which the reviewing court would know. For example, the district court could have said that it would have given the same sentence if the guidelines were advisory. Second, the district court could have departed downward to give the defendant the statutory minimum, which was the case with one of Palladino’s co-defendants. (Lee contains a suggestion that any downward departure is a statement that the district court would not have gone any lower.) Third, the district court could have given the statutory maximum and said that it regretted that it could not go higher, which was the case in Lee. Apparently, in all these cases, the Court will treat any claim of error as forfeited.

Strangely enough, the Court said nothing about the case in which the district court gave a sentence within the Guidelines and expressed the view that it would have given a lower sentence if it had been allowed to do so. Perhaps the Court felt that the consequence is so obvious: a reversal and remand for resentencing.

When a case does not fit into one of the three categories identified in Palladino, the Court will order a limited remand, with the Court retaining jurisdiction. If the district court says on this limited remand that it would give a different sentence under advisory guidelines, then the Seventh Circuit will give a full remand for resentencing. If the district court says the sentence would be the same, then the court "will affirm the original sentence against a plain-error challenge provided the sentence is reasonable."

On the limited remand, the district court shall obtain the views of counsel, in writing and perhaps orally as well. The defendant need not be present for these proceedings on the limited remand. The district judge must then put on the record its determination as to whether to resentence and must give "an appropriate explanation" for its decision. It is unclear whether the district court is supposed to express an opinion as to what it would have done at the time of the initial sentencing or what it would now like to do. The dissents charged that the limited remand would call for the district court to make a statement as to what it would have done and that this procedure was unfair because the district court did not have a full record at that time, since everyone at that time was proceeding on the assumption that the guidelines were mandatory. The dissenters' reading of the majority opinion is a plausible, but not the only, reading of Palladino. Unfortunately, the debate was not sharpened, since the majority made no response to this claim. One wonders if the dissenters correctly appraised the majority opinion. Why would the majority want written submissions to the district court and the district’s court’s explanation if the district court is limited to what it knew or thought at the time of the original sentencing?

Palladino does not explain what should happen if the district court expresses a view on the limited remand that it would like to sentence higher. Presumably, the defendant would have the option to withdraw the appeal or that portion of the appeal dealing with sentence. (Or the defendant could allow the case to be remanded for resentencing and then appeal the new, higher sentence on whatever grounds would be available.)

A puzzling part of Palladino is the statement that if the district court sticks by its original sentence, then the sentence will be reviewed for reasonableness. If the district court says the sentence would be the same, that would seem to rule out a finding that the error was plain error. With a statement that the sentence would be the same, the defendant cannot make the case for the proposition that the error could have made a difference. Yet the Seventh Circuit says the sentence will be reviewed for reasonableness.

But on what basis can the Seventh Circuit determine that the sentence was reasonable when the attorneys have not made a full presentation under section 3553(a)? If, as suggested in United States v. Crosby, the Second Circuit decision on which Palladino relied, a major component of reasonableness review is whether the district court followed the proper analytical framework, can a decision that ignored section 3553(a) ever be reasonable? It remains to be seen how the Seventh Circuit will give content to the reasonableness standard. (In dictum, the Court stated that a sentence for one of the defendants, derived from a downward departure, was reasonable, but it gave no explanation for its dictum, other than to note that the defendant was a 34 year old man who had received a 15-year sentence.)