High Court Signals Ruling Against Feds on Error Standard

WASHINGTON (CN) – An immigrant who was sentenced for illegal re-entry based on a miscalculated recommendation courted sympathy Wednesday from the Supreme Court.

The mathematical error here was small, but an attorney for Florencio Rosales-Mireles emphasized that sentencing guidelines have a special purpose in the judicial system, and that not allowing courts to easily reverse errors in calculating them would frustrate that purpose.

Confronting the government with the pedigree of precedent on the issue, Justice Elena Kagan noted that Justice Neil Gorsuch penned an opinion on it in his prior position as a judge on the 10th Circuit, after a federal judge misapplied federal guidelines while sentencing a drug offender.

Gorsuch wrote at the time that errors in applying sentencing guidelines obviously raise doubts about the judicial system’s integrity and should be presumed to be reversible plain error.

Kagan drew laughter in the courtroom as she challenged Jonathan Ellis, assistant to the U.S. solicitor general, to find the error in Gorsuch’s reasoning.

“I just want to quote one sentence from it and then ask you what you think about it because he basically, you know, suggests why you maybe lose,”  Kagan said.

Justice Sonia Sotomayor chimed in as well, saying it would be unfair not to correct an error in the sentencing guidelines that was of the judicial system’s own making.

“What’s fair about an error that the judge, in part, was a part of that could easily be corrected and that might very well result in a lower sentence to a defendant?” Sotomayor asked. “What’s fair about not correcting that error?”

In the case at hand, Rosales-Mireles was being sentenced in Texas after pleading guilty to illegal re-entry.

A probation officer mistakenly bumped the criminal-history score from a 2 to a 4, however, after double-counting Rosales-Mireles’ prior conviction for a misdemeanor assault.

This led the officer to recommend a sentence between 77 and 96 months, whereas the report would have recommended a sentence between 70 and 87 months without the error.

The error did not come to light until after Rosales-Mireles appealed his 78-month sentence, but the Fifth Circuit decided the error was not egregious enough to order a new sentence.

Ellis, the assistant to the U.S. solicitor general, hung his argument Wednesday on the failure by Rosales-Mireles to object to the guidelines at trial.

He was more than capable of recognizing the error in his own criminal history, and his ultimate sentence fell within the proper range, despite the mathematical error, Ellis noted.

Ellis argued that courts should need good reason to reverse such a harmless error the defendant did not identify at trial.

“We think that in the ordinary-guidelines cases, where the sentence that was imposed is one that is lawful and one that would be reasonable even if the error had been brought to the attention of the court and corrected, it’s going to be an unlikely case, an unusual case, where that is the type of error that seriously affects the fairness, integrity and public reputation of judicial proceedings,” Ellis said.

Justice Stephen Breyer meanwhile appeared swayed by Assistant Federal Public Defender Kristin Davidson.

“All those kinds of technical mistakes that do affect the party, that are clear, do interfere significantly with the congressionally legislated purpose of the guidelines and the effort to implement them,” Breyer said.

Davidson, the federal public defender, said the Court of Appeals applied too exacting a standard.

She argued that, because the sentencing guidelines “anchor” a judge’s sentence, courts should put a lower bar in place for overturning errors in calculating them.

Davidson also said that other circuits have shunned the Fifth Circuit’s heightened standard.

“We ask the court to recognize what every circuit but the Fifth already has,” Davidson said. “That is, in the ordinary case, such an error seriously affects the fairness, integrity and public reputation of the judicial proceedings and warrants correction.”

Justice Samuel Alito questioned why sentencing guidelines should be treated differently than other errors, and what would remain of the four-part plain error test if the court endorsed Rosales-Mireles’ argument.

“I just don’t understand what is left of the plain-error rule,” Alito asked. “There doesn’t seem to be very much left, if the only question is, is there any chance that it caused the defendant to serve a longer sentence than the defendant would have otherwise served?”

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