Must a Criminal Defendant Who Argues for a Lower Sentence Object After Sentencing to Preserve the Claim that a Higher Sentence Is Substantively Unreasonable?
Must a Criminal Defendant Who Argues for a Lower Sentence Object After Sentencing to Preserve the Claim that a Higher Sentence Is Substantively Unreasonable?
Petitioner Gonzalo Holguin-Hernandez was convicted in 2016 in the Western District of Texas for possessing marijuana with the intent to distribute. He was sentenced to 24 months of imprisonment and 2 years of supervised release. While on supervised release in 2017, Holguin was arrested again in the Western District of Texas and charged with possessing marijuana with the intent to distribute. He was sentenced to 60 months of imprisonment on the new charge, the statutory mandatory minimum. Meanwhile, the government filed a petition to revoke Holguin’s supervised release on his first case. The district court determined his advisory Guidelines range was 12 to 18 months imprisonment for the supervised release violation. Holguin argued for a downward variance and asked the court to “consider no additional time or certainly less than the guidelines.” The court denied Holguin’s request and sentenced him to 12 months’ imprisonment for the supervised release violation, to run consecutive to his sentence for the new charge. Holguin did not object to the length of his sentence. On appeal, Holguin argued that his 12-month sentence was substantively unreasonable. Because Holguin had not objected that his sentence was substantively unreasonable after sentencing, the Fifth Circuit reviewed his argument for “plain error only.” Finding no clear or obvious error, the Fifth Circuit affirmed. The Court will now decide whether, to properly preserve a claim that a sentence is substantively unreasonable, a federal criminal defendant who requests a shorter term must also object to the reasonableness of a longer term of imprisonment after it is ordered.
Docket No. 18-7739
Argument Date: December 10, 2019
From: The Fifth Circuit
by George A. Couture
Is a criminal defendant who argues in the district court for a lower sentence required to formally object after pronouncement of his sentence to preserve a claim for appeal that his sentence is substantively unreasonable?
In January 2016, Holguin encountered United States Border Patrol agents near the U.S. border with Mexico. He admitted that he illegally entered the United States to smuggle marijuana, and agents confiscated 272 pounds of marijuana from him and his companions. After pleading guilty, Holguin was convicted of possession of marijuana with intent to distribute in the Western District of Texas. The district court sentenced him to 24 months of imprisonment, to be followed by two years of supervised release. Among the conditions of supervised release, the district court required that Holguin “not commit another federal, state, or local crime.” In October 2017, Holguin completed his term of imprisonment and began his term of supervised release.
In November 2017, while still on supervised release, Holguin was arrested and again charged in the Western District of Texas with aiding and abetting possession of marijuana with intent to distribute. He pleaded guilty. The district court sentenced him to 60 months’ imprisonment for the new charge, the statutory mandatory minimum sentence.
While Holguin’s second prosecution was pending, the government filed a petition to revoke Holguin’s supervised release related to his first conviction. Specifically, the government alleged he violated the terms of his supervised release by reentering the United States illegally and committing the second drug offense. At the revocation hearing, Holguin admitted the violations, and the district court found that the violations had occurred. The court then turned to sentencing. A provision of the Sentencing Reform Act (SRA), 18 U.S.C. § 3583(e), instructs sentencing courts in this context— as in ordinary sentencings—to consider the directives in Section 3553(a). The court thus started the sentencing by determining the maximum term of imprisonment for the violations was 3 years and that the Guidelines recommended a revocation term of 12 to 18 months, based on the severity of the offense and Holguin’s criminal history.
Holguin asked for a downward variance based on factors identified in Section 3553(a) other than the Guidelines recommended sentence. Specifically, he argued that the 60-month mandatory minimum sentence he received for the second conviction, which was tied exclusively to drug quantity, “overrepresent[ed] the role that he played” in the offense, and that he had been coerced by a drug cartel to carry the marijuana. Further, Holguin argued a longer sentence was inappropriate because he had already been sentenced to 60 months of imprisonment for the second drug conviction and “there would be no reason under [Section] 3553 that an additional consecutive sentence would get his attention any better than five years does.” Holguin requested that the district court “consider no additional time or certainly less than the guidelines,” especially if the court ordered the revocation sentence to run consecutively to the 60-month sentence for the second drug conviction.
The district court denied Holguin’s request for a downward variance. It imposed a 12-month prison term for the revocation violation, to run consecutively to the 60-month sentence for the second drug conviction. The district court stated it had “reviewed the policy statement contained in Chapter 7 of the guidelines in determining the appropriate disposition of this matter in relation to the defendant’s violation of his conditions of release.” While the court explained it did not disagree with Holguin’s arguments for a lower sentence, it said “the original case means something” and thus justified the separate 12-month term for the violation of his supervised release. After expressing “hope” that Holguin would be able to withstand the pressure next time to commit an offense, the court asked if Holguin had “anything further.” Holguin did not object to the reasonableness of the revocation sentence or otherwise ask the court to reconsider the term after it was imposed.
On appeal, Holguin contended that the 12-month revocation sentence, on top of his 60-month sentence for the second drug conviction, was substantively unreasonable because it was “greater than necessary to effectuate the sentencing goals of 18 U.S.C. § 3553(a).” Holguin acknowledged that binding Fifth Circuit precedent provided “that he had not adequately preserved this substantive unreasonable argument,” citing United States v. Warren, 720 F.3d 321 (5th Cir. 2013). But he argued the Fifth Circuit was wrong to require a post-sentence objection based on substantive reasonableness where the defendant had advocated for a shorter sentence in the district court. The Fifth Circuit rejected Holguin’s argument and affirmed his sentence. Adhering to Fifth Circuit precedent, the court reasoned that Holguin’s failure to object after sentencing that his sentence was substantively unreasonable meant appellate review was “for plain error review only.” Applying that test, the court concluded Holguin had “failed to show that the imposition of the 12-month total sentence constituted clear or obvious error.” The court noted the sentence fell within the advisory Guidelines range and the district court’s decision to impose the 12-month sentence consecutively was consistent with the Sentencing Guidelines Section 7B1.3(f) (“Any term of imprisonment imposed on revocation of…supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving.”)
On certiorari review in the Supreme Court, the government agreed in its brief in opposition that the Fifth Circuit’s post-sentencing objection requirement is illegitimate and, thus, that the plain-error test should not have applied. As a result, the Court subsequently appointed an amicus to defend the Fifth Circuit’s decision.
This case concerns the rules that apply to a federal defendant’s ability to challenge the length of his sentence on appeal. To understand the question presented, it is helpful to briefly consider the current federal sentencing regime. Before the Sentencing Reform Act (SRA) of 1984, there was virtually no appellate review of federal sentences. Federal judges imposed “indeterminate” sentences with virtually unlimited discretion within broad statutory ranges, and the United States Parole Commission would thereafter decide when individual offenders were actually released.
The SRA was a response to concerns regarding sentencing disparity and a desire to promote transparency and proportionality in sentencing. Along with creating the sentencing guideline system, the SRA provided for significant appellate review of guideline sentences. The SRA and contemporaneous federal sentencing legislation created a fundamentally different sentencing system, with the guidelines being the central feature and abolishing parole for offenders convicted for offenses after November 1, 1987—the effective date of the first Guidelines Manual. The Guidelines Manual provides a detailed set of guidelines and policy statements that include a sentencing table with much narrower sentencing ranges than the larger statutory sentencing ranges governing federal crimes. In the SRA as enacted, sentencing courts were required to sentence defendants within the applicable guideline range unless certain limited grounds for departures were present.
In 2005, the Supreme Court declared that the then-mandatory guideline system violated the Constitution by permitting judges to find facts that raised the guideline range by a preponderance of the evidence. See United States v. Booker, 543 U.S. 220 (2005). Booker struck the provisions of the SRA that made them mandatory, resulting in a judicially modified guideline system that the Court described as “effectively advisory.”
Under the advisory guideline system, judges are required to “take account of the Guidelines and other sentencing goals” identified in 18 U.S.C. § 3553(a). Section 3553(a) sets forth the parsimony principle, which requires courts to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of sentencing set forth in Section 3553(a)(2). Those purposes are “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”; “to afford adequate deterrence to criminal conduct”; “to protect the public from further crimes of the defendant”; and “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” Section 3553(a) also identified more specific factors that supplement the overall purpose to inform the appropriate sentence, such as “the nature and circumstances of the offense and the history and characteristics of the defendant,” and the range of sentences recommended by the Sentencing Guidelines, along with any Sentencing Commission policy statements. A sentencing court is required to consider all Section 3553(a) factors before imposing a sentence. At the time of sentencing, a court must provide both parties an opportunity to argue for a sentence they deem appropriate. Finally, a court is required to openly state its reasons for imposing a particular sentence. In a violation of supervised release sentencing context, courts must consider the same factors that govern the original imposition of sentence, except for the need for the sentence to provide “just punishment.”
After Booker, a federal appellate court reviews a sentence for “reasonableness” using an abuse of discretion standard. Such a reasonableness review actually encompasses two types of review: (1) “procedural” reasonableness and (2)“substantive” reasonableness. As the Supreme Court has explained: regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard. With respect to procedural reasonableness, an appellate court must ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the Section 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence. As a part of an appellate court’s review for “procedural” reasonableness, if the appellant properly preserved the issue for appeal, the court engages in de novo review of purely legal questions concerning Guidelines application and reviews the district court’s underlying findings of fact for “clear error.” Even if a defendant did not properly preserve a Guidelines application issue for appeal, a federal appellate court ordinarily must deem a Guidelines miscalculation as reversible “plain error” if the district court sentenced the defendant based on an incorrectly calculated Guidelines range.
Assuming the sentence is procedurally sound, as is the case here, the appellate court must then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. When conducting this review, the court will consider the totality of the circumstances, including the extent of any variance from the Guidelines range. Regarding “substantive” reasonableness, the Supreme Court has permitted (but not required) federal circuit courts to apply a rebuttable “presumption of reasonableness” in reviewing a district court’s decision to impose a sentence within the applicable Guidelines range. Such a presumption of reasonableness is applicable only to a federal appellate court’s review of a district court’s sentence; it may not be applied by a district court in determining whether to impose a within-range sentence. Moreover, the Court has explained, “[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall v. United States, 551 U.S. 38 (2007).
Holguin maintains the Fifth Circuit erred in applying plain-error review to his substantive reasonableness challenge to his sentence. Contrary to the Fifth Circuit’s ruling, Holguin argues a criminal defendant fully preserves for appeal a claim that his sentence is substantively unreasonable if he argues for a shorter sentence in the district court. No further objection is required after the sentence is pronounced, according to Holguin. He observes that every court of appeals to consider the question, except for the Fifth Circuit, has held that a defendant who argues for a shorter sentence than he received in the district court need not also object after the court imposes a sentence to preserve a substantive reasonableness claim for appellate review. He principally relies on two arguments: (1) the text of Federal Rule of Criminal Procedure 51 and (2) the fact the Fifth Circuit has never “attempted to square its post-sentence-objection requirement with Rule 51.”
Federal Rule of Criminal Procedure 51 governs how parties preserve claims of error. That rule states:
(a) Exceptions Unnecessary. Exceptions to rulings or orders of the court are unnecessary.
(b) Preserving a Claim of Error. A party may preserve a claim of error by informing the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party's objection to the court's action and the grounds for that objection. If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.…
Holguin contends the text of Rule 51 is plain and is all that is necessary to decide this case, consistent with the Court’s precedents for interpreting rules and statutes where the language is plain. Rule 51 is “straightforward and unambiguous,” allowing for two methods to preserve a claim of error for appeal, according to Holguin. A party may inform the district court of the actions the party wishes the court to take “when the court ruling is…sought” or it may object after the ruling is “made.” Here, Holguin says he preserved his claim of error by informing the court of the action he wished it to take, that is, a downward variance from the recommended guideline. He adds nothing in the text of Rule 51 requires a separate objection after the court has ruled. Requiring a separate objection after the court has ruled, called an “exception,” is not necessary to preserve a claim for review. Holguin emphasizes the text of Rule 51 expressly provides that “[e]xceptions to rulings or orders of the court are unnecessary.” As applied to his case, Holguin says when he argued at length for a downward variance at his sentencing hearing of no additional prison time, he preserved an appellate claim that a longer sentence was substantively unreasonable.
Holguin also argues that the Fifth Circuit has never attempted to square its post-sentence-objection requirement with the text of Rule 51. Instead, he asserts the Fifth Circuit has grounded its objection requirement in two propositions which do not stand scrutiny. First, Holguin says the Fifth Circuit errs when it treats substantive reasonableness as a free-standing claim, distinct from an argument that Section 3553(a) does not permit the sentence at issue. In doing so, the Fifth Circuit misunderstands that substantive reasonableness is nothing more than a standard of appellate review. As a standard of appellate review, Holguin argues substantive reasonableness is “shorthand for whether the district court abused its discretion in applying the Section 3553(a) factors.” Correcting this misconception, according to Holguin, it becomes clear that a defendant who argues for a particular sentence in the district court need not later object to a longer sentence imposed to preserve a claim on appeal that the district court abused its discretion.
Second, Holguin attacks the Fifth Circuit’s pragmatic rationale for its post-sentencing-objection requirement—that the rule is necessary to give district courts an opportunity to make informed decisions and correct errors. According to Holguin, those important goals are satisfied at the time of sentencing when defendants apprise district courts of their positions with respect to how the Section 3553(a) factors should apply to their case and result in specific sentences. Once the court has ruled, there is nothing to be gained in requiring parties to engage in the formalism of repeating their objections, according to Holguin. He adds such empty formalism would create traps for the unwary and tax busy district courts without any benefit.
The government generally agrees with Holguin’s argument about the plain text of Rule 51 in the sentencing context. Once a defendant argues to the district court that the sentencing factors enumerated in 18 U.S.C. 3553(a) support a shorter sentence, a defendant’s request for a shorter sentence is sufficient to raise and preserve a substantive reasonableness objection. The government also agrees that a defendant need not also object that the sentence is substantively unreasonable in this scenario. Further, the government agrees with Holguin that the Fifth Circuit’s post-sentencing-objection requirement appears to conflate the error being asserted, that is, the district court’s substantive misapplication of the relevant sentencing factors, with the appellate standard of review. Finally, the government agrees that the Fifth Circuit’s requirement that defendants object to the substantive reasonableness of a sentence after it has been imposed would have little value as a practical matter. While the government agrees the Fifth Circuit erred by applying plain-error review to Holguin’s substantive reasonableness claim, the government asserts that Holguin’s 12-month within-guideline consecutive term of imprisonment is substantively reasonable. Still, the government suggests the proper course of action is to vacate the decision below and remand to the Fifth Circuit for it to conduct the proper review in the first instance.
As noted, since the government agrees with Holguin’s argument that the Fifth Circuit erred by applying plain-error review, the Court appointed amicus to support the lower court opinion. Amicus argues that to preserve an argument that a criminal sentence is substantively unreasonable, a defendant must raise the basis for that argument in the district court, “including the argument that his sentence is beyond the range of reasonable sentences that § 3553(a) allows and the facts and circumstances supporting that argument.” In support, amicus relies on the well-established principle in our legal system that a party must “timely assert” an argument in the district court to preserve it for review. The timely assertion principle, amicus argues, promotes a number of important interests, such as providing the court most familiar with the facts and best positioned to correct the error the opportunity to do so. The principle is embodied in Rule 51, which properly interpreted, according to amicus, requires a party asserting an error to timely raise in the district court “both the argument it believes entitles it to relief and the grounds that support that error.” Failure to assert both arguments and grounds properly in the district court results in plain-error review.
In amicus’s view, a defendant’s challenge to the substantive reasonableness of his sentence is raising the “distinct argument” the sentence imposed is “beyond the range of reasonable sentences that § 3553(a) allows.” As a result, only when the defendant raises the specific argument that his sentence is substantively unreasonable, including reference to relevant sentencing factors and relevant facts, has he preserved his substantive reasonableness argument for appellate review. Amicus argues the Court should reject the contrary view of Holguin and the government because a defendant who requests a shorter sentence is not necessarily arguing the sentence imposed is beyond the range of reasonable sentences allowed by Section 3553(a). Merely asking for a shorter sentence, without more, does not satisfy Rule 51’s requirement that a defendant articulate the grounds supporting his objection. Further, recognizing a distinction between procedural and substantive reasonableness arguments with respect to sentencing would undermine the important interests served by the timely assertion principle, according to amicus, and require appellate courts to address new arguments and facts in the first instance. Moreover, amicus contends that Holguin is not entitled to relief because the Fifth Circuit correctly concluded that the district court did not commit clear or obvious error, as required by the plain-error standard of review. That finding is, in amicus’s view, sufficient to defeat Holguin’s substantive reasonableness argument regardless of whether the Court uses plain error or abuse of discretion to review the claim.
Over 1.8 million federal criminal defendants have been sentenced under the United States Sentencing Guidelines since they went into effect in 1987. Tens of thousands of federal defendants have appealed their sentences, while prosecution appeals have occurred in a much smaller number of cases. There are dozens of Supreme Court cases interpreting the Guidelines—many of which address an appellate court’s review of a district court’s exercise of its sentencing discretion under the Sentencing Reform Act. Given the human and financial costs of incarceration, meaningful appellate review of federal sentences remains an important mechanism to iron out sentencing differences in a way that is consistent with the SRA’s twin goals of “avoiding unwarranted sentencing disparities” while “maintaining sufficient flexibility to permit individualized sentencing.” Since the Fifth Circuit’s post-sentence objection requirement is unique among the federal courts of appeals to preserve a substantive reasonableness claim, a decision affirming the Fifth Circuit’s interpretation of Rule 51 would erect nationwide a more substantial hurdle to reversal under plain-error review in cases where the defendant has not also objected after a sentence longer than requested is imposed. If the Court reverses, the hurdles to asserting a substantive reasonableness claim will be lowered in the Fifth Circuit. Since the Fifth Circuit did not review Holguin’s claim for substantive reasonableness, it is likely the Court would vacate the lower court’s judgment and remand for that Court to conduct reasonableness review in the first instance if the Court reverses.
George A. Couture is an Attorney Advisor with the Defender Services Office, Training Division in Washington, D.C. He can be reached at firstname.lastname@example.org.
PREVIEW of United States Supreme Court Cases 47, no. 3 (December 2, 2019): 39–43. © 2019 American Bar Association
In Support of Petitioner Gonzalo Holguin-Hernandez