recognizing that this court’s sentencing precedent "has been generous with remand, often finding that errors leading to substantial increases in sentences, even those errors not raised until appeal and thus subject to plain error review, merited remand, although we are not convinced that the case law on this point is settled or as categorical as language in some cases might make it seem”
How later courts described this case
- recognizing that this court’s sentencing precedent "has been generous with remand, often finding that errors leading to substantial increases in sentences, even those errors not raised until appeal and thus subject to plain error review, merited remand, although we are not convinced that the case law on this point is settled or as categorical as language in some cases might make it seem”
- explaining that, on plain error review, the legal error must be obvious and not subject to reasonable debate and that “[n]ot every error that increases a sentence need be corrected by a call upon plain error doctrine”
- rejecting a defendant’s challenge to his sentence because the alleged error was not obvious, noting that “all defendants’ appeals challenging a sentence rest on the practical premise that the sentence should be less,” but “[n]ot every error that increases a sentence need be corrected by a call upon plain error doctrine”
- noting that “the second prong of plain error analysis is particularly important” and suggesting that, unless a crime of violence error can be identified simply by considering the “elements of the crime” or “other straightforward applications of case law,” it is not clear or obvious
Written by the judges who cited it.
The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 26, 2009
No. 07-11276 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CURTIS LEE ELLIS
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
On September 4, 2007, Judge Lynn of the United States District Court for
the Northern District of Texas accepted defendant-appellant Curtis Lee Ellis’
guilty plea as to three counts of bank robbery in violation of 18 U.S.C. § 2113.
Previously, Ellis had been convicted of common law robbery and attempted
common law robbery in North Carolina, leading the probation officer to
recommend a career offender enhancement under Federal Sentencing Guideline
§ 4B1.1. Applied this enhancement, the district court sentenced him to 168
months of imprisonment. Ellis appeals his sentence on the grounds that his
prior conviction for attempted common law robbery does not qualify as a “crime
No. 07-11276
of violence” under § 4B1.2 because North Carolina broadly defines the term
“attempted.” We conclude that Ellis has forfeited the right to challenge this
potential error in the use of the North Carolina conviction by failing to object
before the district court. We offer a full narrative of the path Ellis would have
us travel, all without any whisper of it uttered in the district court. Doing so
points toward the large interest such an undertaking would trample.
I
The district court sustained Ellis’ only two challenges to the Presentence
Report, refusing to apply enhancements for a “threat of death” and “bodily
injury.” This worked no change in Ellis’ final sentencing range because the
court found Ellis to be a career offender and enhanced under Guideline § 4B1.1,
predicated on previous “crimes of violence.” This set Ellis's total offense level at
29 after a three-point adjustment for acceptance of responsibility.1 Coupled
with his criminal history category of VI, his sentencing range was 151–188
months.2
Despite the fact that Ellis’ criminal history was the most salient factor in
his sentence, the PSR’s treatment of it went unchallenged. The PSR grounded
the career offender enhancement in Ellis's convictions in North Carolina for
common law robbery and attempted common law robbery, finding them to be
“crimes of violence” under the Guidelines. Under Guideline § 4B1.1(a), a career
offender enhancement applies if, inter alia, “the defendant has at least two prior
felony convictions of either a crime of violence or a controlled substance offense.”
1
See U.S.S.G. § 4B1.1(b)(C); see also 18 U.S.C. § 2113(a).
2
Without this enhancement, his total offense level would have been 22, for a Guidelines
sentence of 84-105 months.
2
No. 07-11276
Ellis accepts that this court has held that common law robbery under North
Carolina law is a crime of violence as defined by § 4B1.2.3 But he urges that in
North Carolina, attempted robbery is not a crime of violence because state law
defines that offense—specifically the “overt act” requirement—more broadly
than most other states.
Guideline 4B1.1(a) defines a career offender as (1) one who is eighteen at
the time he committed the current offense, (2) which must be a felony that is a
crime of violence or a controlled substance offense, and (3) the offender must
have two previous convictions that fall into either of those categories. Section
4B1.2 defines “crime of violence” as a crime punishable by imprisonment for a
term greater than one year that “has as an element the use, attempted use, or
threatened use of physical force against the person of another, or is a burglary
of a dwelling, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.”4 The application notes provide further definitional guidance:
“Crime of violence” includes murder, manslaughter, kidnaping,
aggravated assault, forcible sex offenses, robbery, arson, extortion,
extortionate extension of credit, and burglary of a dwelling. Other
offenses are included as “crimes of violence” if (A) that offense has
as an element the use, attempted use, or threatened use of physical
force against the person of another, or (B) the conduct set forth (i.e.,
expressly charged) in the count of which the defendant was
convicted involved use of explosives (including any explosive
material or destructive device) or, by its nature, presented a serious
potential risk of physical injury to another.5
3
See U.S. v. Moore, 223 F. App'x 422, 424, 2007 WL 954323, **1 (5th Cir. Mar. 2007).
4
U.S.S.G. § 4B1.2(a).
5
Id. § 4B1.2 cmt. n.1.
3
No. 07-11276
Finally, the application notes also include within the definition of crime
of violence “the offenses of aiding and abetting, conspiring, and attempting to
commit such offenses.” 6
As this definition suggests, a crime may fall within one of the enumerated
categories, or within the one of the two general provisions, the first requiring the
predicate crime to have as “an element the use, attempted use, or threatened use
of physical force against the person of another,” and the second requiring the
prior crime to involve explosives or “by its nature” to present “a serious potential
risk of physical injury to another.” 7 Ellis argues that his conviction in North
Carolina for attempted common law robbery does not fall within the enumerated
category of robbery (defined to include attempted robbery), or within either of
the two catch-all provisions.
The Guidelines do not define “attempt” or “robbery,” leaving that task to
the courts. This court uses a common sense approach to determine if a prior
conviction is categorically an enumerated offense, deciding whether an offense
is attempted robbery according to its ordinary, contemporary, and common
meaning.8 In Taylor, the Supreme Court defined burglary using “the generic
6
Id.
7
See U.S. v. Dentler, 492 F.3d 306, 313 (5th Cir. 2007).
8
See U.S. v. Dominguez-Ochoa, 386 F.3d 639, 642–43 (5th Cir. 2004) (“Taylor instructs
that where, as here, the enhancement provision does not specifically define the enumerated
offense, we must define it according to its ‘generic, contemporary meaning' and should rely on
a uniform definition, regardless of the ‘labels employed by the various States' criminal codes.’”)
(quoting Taylor v. U.S., 495 U.S. 575, 598, 592 (1990)).
4
No. 07-11276
sense in which the term is now used in the criminal codes of most States.” 9 If the
state definition for an offense is broader than the generic definition, a conviction
under that state's law cannot serve as a predicate for the enhancement.10
In an unpublished opinion, this court considered whether common law
robbery under North Carolina law is categorically a crime of violence pursuant
to § 4B1.2.11 The court generically defined robbery as “aggravated larceny,
containing at least the elements of misappropriation of property under
circumstances involving [immediate] danger to the person.” 12 North Carolina
courts have defined common law robbery as “the felonious, non-consensual
taking of money or personal property from the person or presence of another by
means of violence or fear.” 13 The court in Moore concluded that the state's
definition of robbery “substantially corresponds” to the generic definition and
thus was a crime of violence.14
Recognizing that the common law robbery conviction was properly used to
support his career offender status as a crime of violence, Ellis now seeks to
9
495 U.S. at 598; see also U.S. v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006) (“To
establish the generic contemporary meaning of an enumerated offense, we consider, inter alia,
the Model Penal Code, Professors LaFave's and Scott's treatises, modern state codes, and
dictionaries.”).
10
See Dominguez-Ochoa, 386 F.3d at 646.
11
Moore, 223 F. App’x at 422.
12
Id. at 423 (quoting U.S. v. Santiesteban-Hernandez, 469 F.3d 376, 380 (5th Cir.
2006)) (alteration in original) (internal quotation marks omitted). In Santiesteban-Hernandez,
the court noted that “The majority of states require property to be taken from a person or a
person’s presence by means of force or putting in fear.” 469 F.3d at 380.
13
Id. at 424 (quoting State v. Parker, 369 S.E.2d 596, 600 (N.C. 1988)).
14
Id.
5
No. 07-11276
challenge the inclusion of his attempt conviction in reaching the crime of violence
standard for Guidelines purposes.
To resolve the question in this case we would need to define the generic,
contemporary meaning of “attempt” and to compare this definition with North
Carolina's use of that term, no easy task. Professor LaFave notes that the actus
reus requirement for attempt crimes is very difficult to define with precision.15
Ellis argues that the trend among the states is toward the “substantial step”
language of the Model Penal Code. The Model Penal Code defines attempt as
follows:
A person is guilty of an attempt to commit a crime if, acting
with the kind of culpability otherwise required for commission of the
crime, he:
(a) purposely engages in conduct that would constitute
the crime if the attendant circumstances were as he
believes them to be; or
(b) when causing a particular result is an element of the
crime, does or omits to do anything with the purpose of
causing or with the belief that it will cause such result
without further conduct on his part; or
(c) purposely does or omits to do anything that, under
the circumstances as he believes them to be, is an act or
omission constituting a substantial step in a course of
conduct planned to culminate in his commission of the
crime.16
Subsections (a) and (b), according to Ellis, are variations of the proximity
approach, which require the actor to take steps approaching the accomplished
15
2 WAYNE R. LA FAVE , SUBSTANTIVE CRIM INAL LAW § 11.4, at 218 (2d ed. 2003)
(“Precisely what kind of act is required is not made very clear by the language which has
traditionally been used by courts and legislatures.”).
16
Model Penal Code § 5.01(1).
6
No. 07-11276
crime, often nearly completing the crime.17 Subsection (c) is the broadest
category under the Code, requiring only a “substantial step” to completing the
crime. In the difference between this phrase and the “slight acts” language of
North Carolina law lies the essence of Ellis's argument.
Ellis argues from LaFave that twenty-two states have adopted the
substantial step test of the Model Penal code, and he notes that all twelve circuit
courts (in contexts other than determining a generic, contemporary meaning
under the Guidelines), the military courts, and the courts of four other states
have adopted this test.18 Ellis cites approvingly the Second Circuit's opinion in
Sui v. INS, in which the court noted a shift in the meaning of “attempt”: “As in
Taylor, the modern meaning of ‘attempt’ has evolved from the classic
common-law definition of the term, and the elements of intent and a substantial
step toward commission set out in the Model Penal Code make up the most
commonly used ‘attempt’ definition today.”19
Ellis points out that North Carolina has not codified the crimes of either
robbery or attempt.20 The North Carolina Supreme Court, he argues, has
defined the actus reus requirement of attempt broadly. He cites State v. Bell, in
which that court opined: “Because ‘the reason for requiring an overt act is that
without it there is too much uncertainty as to what the intent actually was,’
17
See LA FAVE § 11.4(b), at 220.
18
He further notes that New York has adopted another narrow proximity test,
requiring the actor to have carried “forward within dangerous proximity to the criminal end
to be attained.” People v. Mahboubian, 543 N.E.2d 34, 45 (N.Y. 1989).
19
250 F.3d 105, 116 (2d Cir. 2001).
20
See N.C. GEN . STAT . §§ 14-1.5, 14-87.1 (setting punishments for attempt and robbery
without defining them).
7
No. 07-11276
‘whenever the design of a person to commit a crime is clearly shown, slight acts
in furtherance of the design will constitute an attempt.’” 21 Ellis notes that a
minority of states has adopted the “slight acts” test, and he argues this language
is inconsistent with the generic, contemporary meaning of attempt.
Ellis advances two arguments as to why the slight acts test and the
substantial step tests are different. First, he argues that the word “slight” is the
polar opposite of “substantial.” Second, he argues the two different tests
“embody fundamentally distinct rationales for the criminalization of attempted
offenses.” Ellis says that the slight acts test uses the “act” merely to confirm an
intent to commit the attempted crime, and he cites a Nevada case describing this
test as follows: “[W]e emphasize the inverse relationship which exists between
the defendant's intent to commit the crime and the performance of an overt act
toward the commission of the crime.” 22 Thus, when the actor's intent is clear,
the act requirement is minimal.23
In contrast, Ellis argues, the substantial step test imposes an independent
actus reus requirement, and he cites this court's decision in United States v.
Oviedo, in which we noted that the overt act requirement protects against
punishment for mere thoughts: “[T]he possibility of error is mitigated by the
requirement that the objective acts of the defendant evidence commitment to the
criminal venture and corroborate the mens rea. To the extent that this
requirement is preserved it prevents the conviction of persons engaged in
innocent acts on the basis of a mens rea proved through speculative inferences,
21
316 S.E.2d 611, 616 (N.C. 1984) (quoting 21 AM . JUR .2D CRIM INAL LAW § 159 (1981)).
22
Van Bell v. State, 775 P.2d 1273, 1275 (Nev. 1989).
23
See id.
8
No. 07-11276
unreliable forms of testimony, and past criminal conduct.” 24 The court
concluded: “Thus, we demand that in order for a defendant to be guilty of a
criminal attempt, the objective acts performed, without any reliance on the
accompanying mens rea, mark the defendant's conduct as criminal in nature.
The acts should be unique rather than so commonplace that they are engaged
in by persons not in violation of the law.” 25 The court in Oviedo relied on
objective acts not merely as evidence of the actor's intent, but as an independent
indicator of criminal activity. Based on this divergence of language and purpose,
Ellis concludes that North Carolina's slight acts test is fundamentally different
from, and broader than, the generic substantial step test.
On the other hand, United States v. Mandujano, a case upon which
Oviedo relies, discusses at length the preparation-attempt distinction and settles
on the substantial step language.26 The court then states: “The phrase
‘substantial step,’ rather than ‘overt act’ . . . indicates that the conduct must be
more than remote.” 27 This definition seems to equate the substantial step test
with any act that crosses the line from preparation to execution. The court also
quoted various cases describing the preparation-attempt continuum with such
language as “no definite line” and “matter of degree.” 28 Here we would be
required to decide whether the degree of difference between substantial steps
24
525 F.2d 881, 885 (5th Cir. 1974) (citation omitted).
25
Id.
26
499 F.2d 370, 373-77 (5th Cir. 1974).
27
Id. at 377.
28
Id. at 375.
9
No. 07-11276
and slight acts is great enough to warrant differing treatment under the
Guidelines, a close question.
II
The government argues that there was no error and certainly no plain
error. By the government’s argument, the actual state of North Carolina law is
closer to the substantial step test.29 It points to State v. Miller, in which the
North Carolina Supreme Court stated: “The elements of an attempt to commit
any crime are: (1) the intent to commit the substantive offense, and (2) an overt
act done for that purpose which goes beyond mere preparation, but (3) falls short
of the completed offense.”30 The court explained the “overt act” requirement in
this way:
In order to constitute an attempt, it is essential that the defendant,
with the intent of committing the particular crime, should have
done some overt act adapted to, approximating, and which in the
ordinary and likely course of things would result in the commission
thereof. Therefore, the act must reach far enough towards the
accomplishment of the desired result to amount to the
commencement of the consummation. It must not be merely
preparatory. In other words, while it need not be the last proximate
act to the consummation of the offense attempted to be perpetrated,
it must approach sufficiently near to it to stand either as the first or
some subsequent step in a direct movement towards the commission
of the offense after the preparations are made.31
29
Cf. United States v. Taylor, 529 F.3d 1232, 1237–38 (9th Cir. 2008) (finding that
Arizona's attempt statute, which used the phrase “any step,” was broader than the federal
definition, but that Arizona courts interpreted the statute to mean “substantial step”).
30
477 S.E.2d 915, 921 (N.C. 1996).
31
Id. (quoting State v. Price, 184 S.E.2d 866, 869 (N.C. 1971)) (emphasis added).
10
No. 07-11276
Based on this language, the government argues that North Carolina imposes a
“substantial burden on the type of overt act that will support an attempt
conviction” very similar to the substantial step test.
Ellis contends that the two North Carolina cases he cited, Bell and State
v. Henderson,32 both of which recite and apply the slight acts test, are the correct
statement of North Carolina law. He cites James v. United States,33 in which the
Supreme Court determined whether attempted burglary under Florida law
presented a serious risk of injury. The Court examined Florida's law “as
34
interpreted by that State's highest court.” Thus, Ellis argues, Bell, as an
opinion of the North Carolina Supreme Court that has not been overruled, is the
law of the state. He also notes that Henderson was decided only last year and
applies the same test. Ellis further argues that Miller does not change the
analysis because that case merely held that mere preparation is insufficient to
support an attempt conviction. He finds this enunciation of the standard
unhelpful because it does not provide any guidance on the distinction between
a slight act and a substantial step. An overt act, he argues, is beyond mere
preparation, but the question here is when that line is crossed. North Carolina
penalizes slight acts, whereas most states require more.
Even if we were to accept Ellis's contention that slight acts and substantial
steps are two fundamentally different approaches to testing the sufficiency of an
overt act for a criminal attempt conviction, we are left with the difficulty of
where North Carolina falls in the continuum between those poles. The North
32
642 S.E.2d 509 (N.C. App. 2007).
33
550 U.S. 192, 127 S. Ct. 1586 (2007).
34
127 S. Ct. at 1596.
11
No. 07-11276
Carolina Supreme Court has announced the slight acts test in Bell, but the
language in Miller appears on first blush to require something more. On closer
examination, Miller does not appear to change Bell's framework. The phrases
“commencement of the consummation,” “not be merely preparatory,” and “first
or some subsequent step” all point to an overt act requirement that crosses a line
between planning and execution but does not elucidate the distinction between
the two tests at issue. The word “first” coupled with the word “slight” seemingly
allows a minor act to suffice for an attempt conviction. This standard is broader
than the requirement of a substantial step, which is more than confirmation of
the actor's intent; it is “conduct . . . strongly corroborative of the firmness of the
defendant's criminal intent.” 35
The government notes that in the two North Carolina cases Ellis cites the
court required a substantial step in actual practice. In Bell, for example, the
court described the actions of the defendant and another perpetrator in
preparing to rape their victims, namely, ordering the victims to remove their
clothes.36 In Henderson, a case that recited the slight acts test, the defendant
removed his pants and requested the victim to engage in sexual conduct.37 These
factual scenarios, the government argues, do not support a conclusion that
something less than a substantial step is actually required under North Carolina
law. Ellis replies that evidence of a substantial step may have been present in
these cases, but that fact does not change the courts' statements of the
applicable law.
35
Mandujano, 499 F.2d at 377 (emphasis added).
36
316 S.E.2d at 616.
37
642 S.E.2d at 513.
12
No. 07-11276
In United States v. Sarbia, the Ninth Circuit analyzed Nevada's attempt
statute and case law, which uses the “slight act” approach, and concluded that
the state's law was coextensive with the federal, “substantial step” approach:
It is true that Nevada has formulated the elements of attempt using
slightly different language from that of the common law. Nevada
requires proof that the defendant has performed “some act” rather
than a “substantive step” towards the commission of the crime. The
Nevada Supreme Court has held that a conviction for attempt will
be affirmed if the evidence shows that the defendant has performed
a “slight act,” so long as his or her intent to commit the crime is
clear. However, after reviewing numerous Nevada Supreme Court
opinions on the subject, we are persuaded that the terms “some act”
or “slight act,” as used in the Nevada caselaw, have the same
operational meaning as “substantial step,” as used in the traditional
common-law definition of attempt.38
In sum, the question is close as to whether Ellis’ North Carolina attempted
common law robbery falls within the generic, contemporary meaning of attempt
in this context. The question as to whether the attempt falls under one of the
other catchall provisions of § 4B1.2 is also close, but for the reasons stated below,
we decline to enter that even murkier, and less thoroughly argued, area.
III
Ellis admits that he did not object to the career offender enhancement and
that this court's review is for plain error. Plain error doctrine provides that:
An appellate court may not correct an error the defendant failed to
raise in the district court unless there is (1) error, (2) that is plain,
and (3) that affects substantial rights. If all three conditions are
met an appellate court may then exercise its discretion to notice a
38
367 F.3d 1079, 1086 (9th Cir. 2004) (citations omitted).
13
No. 07-11276
forfeited error but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.39
Our narrative of the decisional path this court would have to traverse to resolve
the merits of defendant’s objection to his sentence, an objection never made to
the trial court, makes plain beyond peradventure that any error was not plain.
As Ellis would have it, all of the close calls fall his way, and that is enough. Yet,
the error said to be plain was never the subject of objection by able trial counsel.
Putting aside its obscurity at trial, even now after full briefing and oral
argument the error is not plain or obvious, indeed it is most uncertain whether
there was any error at all.
Ellis cites dicta from this court suggesting that any erroneous application
of a “crime of violence”-related enhancement will ipso facto be plain. But on
closer examination neither the case from which he draws the dicta, 40 nor the
other cases he cites,41 support his position. Those cases are not analogous. Their
brief analyses turn on the elements of the crime sustaining the conviction or
39
U.S. v. Mares, 402 F.3d 511, 520 (5th Cir. 2005) (internal quotations and citations
omitted).
40
U.S. v. Alfaro, 408 F.3d 204, 209 (5th Cir. 2005) (“The second prong of the plain-error
test is also met because this court has consistently held that when a district court errs in
concluding that a defendant was convicted of a ‘crime of violence,’ the error is plain.”).
41
U.S. v. Dentler, 492 F.3d 306, 313-14 (5th Cir. 2007); U.S. v. Gonzalez-Chavez, 432
F.3d 334, 336-37 (5th Cir. 2005); U.S. v. Insaulgarat, 378 F.3d 456, 466-471 (5th Cir. 2004)
(concluding, at 471, “[t]his conclusion clearly and plainly follows from the terms of section
4B1.2(a), the wording of the Florida statute and the indictment, and our jurisprudence
construing section 4B1.2. Therefore it was plain error . . . .”); U.S. v. Gracia-Cantu, 302 F.3d
308, 312-13 (5th Cir. 2002); U.S. v. Dixon, 265 F. App’x 383, 385-86, 2008 WL 410705, **2-**3
(5th Cir. 2008); U.S. v. Sanchez-Torres, 136 F. App’x 644, 647-48, 2005 WL 1463102, **2-**3
(5th Cir. 2005); U.S. v. Lopez-Hernandez, 112 F. App’x 984, 985, 2004 WL 2428675, **1 (5th
Cir. 2004); U.S. v. Aguilar-Delgado, 120 F. App’x 522,523-24, 2004 WL 2801794, **1 (5th Cir.
2004).
14
No. 07-11276
upon other straightforward applications of case law to correct what would be
more promising candidates for clear error. By contrast, the inquiry here yields
no such clarity;42 that is, the “categorical” inquiry sheds little light. Our
judgment draws strength from the Supreme Court’s most recent guidance on
this question. In Puckett v. United States, Justice Scalia, writing for the
majority, reaffirmed the principle that to satisfy the second prong of plain error
inquiry, “the legal error must be clear or obvious, rather than subject to
reasonable debate.”43
We need not decide whether Ellis’ attempted common law robbery
conviction should have been permitted to sustain the enhancement. The record
reflects a district court soliciting discussion from counsel, examining the PSR
and other evidence assiduously, and carefully considering the facts of Ellis’ case,
including the nature of the instant offenses as well as his extensive criminal
history, in sentencing him.
This emphasis on the second prong of plain error analysis is particularly
important given the development of this court’s case law on the third and fourth
prongs of the plain error test in the sentencing context, where the court has been
generous with remand, often finding that errors leading to substantial increases
in sentences, even those errors not raised until appeal and thus subject to plain
42
See U.S. v. Sanchez-Garcia, 2009 WL 139591, *2 (5th Cir. 2009) (“Because this
Circuit has not rule on this interpretation of § 4A1.2(k), and because there is a circuit split on
the issue, we cannot hold that the district court plainly erred . . . . In light of this
disagreement in the circuits, the district court did not plainly err . . . .”).
43
No. 07-9712, 2009 WL 763354, *3 (March 25, 2009).
15
No. 07-11276
error review, merited remand,44 although we are not convinced that the case law
on this point is settled or as categorical as language in some cases might make
it seem. To our eyes, the lack of any clear error here means that Ellis’ sentence
should stand.
Even if we were inclined, this is no occasion to offer metrics for the
severity of an increase worked by decisions later found to have been error and
such a departure as to summon our discretion to correct an injustice. Not every
error that increases a sentence need be corrected by a call upon plain error
doctrine. It bears emphasis that all defendants’ appeals challenging a sentence
rest on the practical premise that the sentence should be less. The doctrine of
plain error serves powerful institutional interests, including securing the role of
44
A survey of cases indicates some variation in treatment of plain error review, but
with a generally permissive approach to the third and fourth prongs, and especially where a
significantly different Guidelines range was erroneously advised. See, e.g., Dentler, 492 F.3d
at 314 (quoting broad language concerning remand on sentencing error, but proceeding to
analyze for prejudice, which it found); Alfaro, 408 F.3d at 209; U.S. v. Pennell, 409 F.3d 240,
245-46 (5th Cir. 2005) (noting clear showing of prejudice in this case, but leaving future cases
open); U.S. v. Villegas, 404 F.3d 355, 364-65 (5th Cir. 2005) (finding prejudice where erroneous
Guidelines range and correct range did not overlap); Insaulgarat, 378 F.3d at 468 n. 17 (same);
U.S. v. Gracia-Cantu, 302 F.3d 308, 313 (5th Cir. 2002) (same); U.S. v. Aderhold, 87 F.3d 740,
744 (5th Cir. 1996) (as to third prong, finding prejudice “because, absent an [erroneous]
upward departure, [the defendant] would have received a lesser sentence”; as to fourth prong,
noting “permissive” nature of plain error review but choosing to vacate and remand); U.S. v.
Franks, 46 F.3d 402, 405 (5th Cir. 1995) (“Because Franks erroneously and mistakenly
received a substantially longer sentence under the guidelines than he should have received,
the fairness and integrity of the judicial proceeding was seriously affected.”); U.S. v.
Brownlow, 87 F. App’x 337, 338-39; 2004 WL 96787, **1 (5th Cir. 2004) (seemingly assuming
prejudice; declining to “speculate” as to whether lower sentence would in fact have been
imposed); U.S. v. Colindres, 98 F. App’x 347, 349, 2004 WL 1161832, **1 (5th Cir. 2004)
(overturning where sentence imposed was greater than highest sentence advised under correct
Guidelines sentence); U.S. v. Vivar-Acosta, 112 F. App’x 328, 329, 2004 WL 2296088, **1 (5th
Cir. 2004) (same); U.S. v. Luna-Montoya, 80 F. App’x 334, 337-38, 2003 WL 22533191, **3 (5th
Cir. 2003). Cf. U.S. v. Leonard, 157 F.3d 343, 346 (5th Cir. 1998) (no prejudice); U.S. v.
Echavarria, 138 F. App’x 678, 679-80 (5th Cir. 2005) (finding no prejudice).
16
No. 07-11276
the United States District Court as the court of first instance, as opposed to a
body charged to make recommendations to appellate courts. And even if an
increase in a sentence be seen as inevitably “substantial” in one sense it does not
inevitably affect the fairness, integrity, or public reputation of judicial process
and proceedings. To conclude that not correcting the error claimed here casts
doubt upon the fairness, integrity, or public reputation of the proceeding drains
all content from the doctrine of plain error.
We AFFIRM.
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