Booker: Good Fourth Circuit (??) Plain Error Case, Hughes

The defense has worried about plain error review after Booker, especially after Breyer's mysterious musings at the end of the remedial opinion. Amazingly enough, the Fourth Circuit is first out of the gate with a good plain error case, Hughes. Here are AFPD Fran Pratt's thoughts.


If you have not already seen it, the Fourth Circuit has issued a remarkably good opinion in which it found plain error in a sentence imposed pre-Blakely. The decision appears to be the first appellate opinion to address the application of Booker in any significant way. (I have also attached a case list that I have started, in the hope that it might be useful; this does include the 11th Circuit's opinion that Blakely / Booker still fall within the scope of appeal waivers.). The case is:

United States v. Hughes, No. 03-4172, ___ F.3d _____, 2005 WL 147059 (4th Cir. Jan. 25, 2005)

Available here.

Chief Judge Wilkins, former Sentencing Commission Chair and author of Hammoud, wrote the opinion. The relevant sections are succinct but forceful. Given that Wilkins wrote it, I think and hope that the opinion would be quite persuasive in other circuits.

The case, out of Maryland (not by the FPD office, though) involved bankruptcy fraud and perjury committed during the bankrruptcy proceeding. The defendant was sentenced to 46 months, derived from an Offense Level of 22 and Criminal History Category of I.
After first briefly describing the SRA and the Booker opinion (Part III.A), the Fourth Circuit first found error and found that it was plain.

Now, the good stuff (at least for those of us who are cynical about how Breyer wrote the final paragraph of his majority opinion, and/or those of us in the Fourth Circuit). The Fourth Circuit found that Hughes' substantial rights were affected. Importantly, albeit in a footnote, the Court stated:

The question for purposes of determining whether Hughes was prejudiced is not what the district court would have done had it imposed a sentence in the exercise of its discretion pursuant to § 3553(a). Hughes does not argue that the district court erred by failing to regard the guidelines as advisory. Rather, Hughes argues that the district court erred by imposing a sentence that was greater than the maximum authorized by the facts found by the jury alone. Therefore, the prejudice inquiry concerns what sentencing the court would have imposed had it not committed the error of going beyond the facts found by the jury in imposing a sentence under the mandatory guideline regime then in existence. This case does not present the question of whether a defendant suffers prejudice because a sentencing court fails to treat the guidelines as advisory in determining the sentence.
(Part III.B.3, .n.6 (emphasis added).)

Finally, in Part III.B.4, in what may be the best part of the opinion (again, at least for those of us who are cynical about how Breyer wrote the final paragraph of his majority opinion, and/or those of us in the Fourth Circuit) because it is the prong of the analysis that almost always gets us, the Fourth Circuit had "no difficulty concluding that an exercise of our discretion is warranted here." The Court explained, "Booker wrought a major change in how federal sentencing is to be conducted. . . . Under the record before us, to leave this sentence imposed under the mandatory guideline regime, we have no doubt, is to place in jeopardy 'the fairness, integrity or public reputation of judicial proceedings.'" In another important footnote (quoted below in full), the Court stated:

In determining whether the exercise of our discretion, it is not enough for us to say that the sentence imposed by the district court is reasonable irrespective of the error. The fact remains that a sentence has yet to be imposed under a regime in which the guidelines are treated as advisory. To leave standing this sentence simply because it may happen to fall within the range of reasonableness unquestionably impugns the fairness, integrity, or public reputation of judicial proceedings. Indeed, the determination of reasonableness depends not only on an evaluation of the actual sentence imposed but also the method employed in determining it.

Moreover, declining to notice the error on the basis that the sentence actually imposed is reasonable would be tantamount to performing the sentencing function ourselves. This is so because the district court was never called upon to impose a sentence in the exercise of its discretion. That the particular sentence imposed here might be reasonable is not to say that the district court, now vested with broader sentencing discretion, could not have imposed a different sentence that might also have been reasonable. We simply do not know how the district court would have sentenced Hughes had it been operating under the regime established by Booker.
(Part III.B.4, n.8 (emphasis added).)

The italicized language will, I think, be helpful to us who have been thinking about arguing that appellate review of reasonableness is akin to review for abuse of discretion.
While the opinion leaves open how the Fourth Circuit would apply plain error in other cases (e.g., where the district court had indicated it would give the same sentence, see footnote 5, or where there was evidence from which a jury could have found the enhancement had it been asked, etc), it is none the less an important one because it suggests that the Court may send back a large number of cases without second-guessing the district courts.

Fran Pratt, AFPD Alexandria, Virginia