Henderson v. United States

(Slip Opinion) OCTOBER TERM, 2012 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

HENDERSON v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 11–9307. Argued November 28, 2012—Decided February 20, 2013

A federal court of appeals normally will not correct a legal error made

in a criminal trial unless the defendant first brought the error to the

trial court’s attention. United States v. Olano, 507 U. S. 725, 731.

But Federal Rule of Criminal Procedure 52(b) provides an exception,

permitting “[a] plain error that affects substantial rights [to] be con-

sidered even though it was not brought to the [trial] court’s atten-

tion.”

Here, the District Court increased the length of petitioner Hender-

son’s sentence so he could participate in a prison drug rehabilitation

program. Henderson’s counsel did not object to the sentence, but, on

appeal, Henderson claimed that the District Court plainly erred in

increasing his sentence solely for rehabilitative purposes. While the

appeal was pending, this Court decided in Tapia v. United States,

563 U. S. ___, ___, that it is error for a court to “impose or lengthen a

prison sentence to enable an offender to complete a treatment pro-

gram or otherwise to promote rehabilitation.” While this meant that

the District Court’s sentence was erroneous, the Fifth Circuit deter-

mined that Rule 52(b) did not give it authority to correct the error.

In doing so, it concluded that an error is “plain” under the Rule only

if it was clear under current law at the time of trial, but that, in this

case, Circuit law was unsettled until Tapia was decided.

Held: Regardless of whether a legal question was settled or unsettled at

the time of trial, an error is “plain” within the meaning of Rule 52(b)

so long as the error was plain at the time of appellate review. Pp. 3–

13.

(a) The question of whether an error must be plain at the time it is

committed or at the time it is reviewed reflects two competing legal

principles. The principle that a right may be forfeited in a case if it is

2 HENDERSON v. UNITED STATES

Syllabus

not timely asserted before a tribunal having jurisdiction to determine

it favors limiting the assessment of plainness to the time of the er-

ror’s commission. See Olano, supra, at 731. And the rule that an ap-

pellate court must apply the law in effect at the time it renders its

decision favors assessing plainness at the time of review. See Thorpe

v. Housing Authority of Durham, 393 U. S. 268, 281. Because neither

principle is absolute, the conflict cannot be decided by looking to one

rather than the other. The text of Rule 52(b) also leaves open the

temporal question. And relevant precedent does not directly answer

the question. In Olano, this Court said that Rule 52(b) authorizes an

appeals court to correct a forfeited error only if (1) there is an “error,”

(2) that is “plain,” (3) that “affect[s] substantial rights,” 507 U. S. 732,

and (4) that “ ‘seriously affect[s] the fairness, integrity or public repu-

tation of judicial proceedings,’ ” id., at 736. In Johnson v. United

States, 520 U. S. 461, 468, the Court concluded that, where a trial

court’s decision was clearly correct under circuit law when made but

becomes “clearly contrary to the law at the time of appeal[,] it is

enough that an error be ‘plain’ at the time of appellate consideration.”

However, neither case addressed what rule should apply where the

law is unsettled at the time of the error but plain at the time of re-

view. 507 U. S., at 734, 520 U. S, at 467−468. Pp. 3−6.

(b) This precedent, when read in light of the underlying back-

ground principles, leads to the conclusion that Rule 52(b)’s “plain er-

ror” phrase applies at the time of review. If “plain error” covers trial

court decisions that were plainly correct when made and those that

were plainly incorrect when made, it should cover cases in the mid-

dle―i.e., where the law was neither clearly correct nor incorrect, but

unsettled, at the time of the trial court’s decision. To hold to the con-

trary would lead to unjustifiably different treatment of similarly sit-

uated individuals, for there is no practical reason to treat a defendant

more harshly simply because his circuit’s law was unclear at the time

of trial. Even if a “time of error” rule would provide an added incen-

tive to counsel to call a trial judge’s attention to the matter so the

judge could quickly consider remedial action, such incentive has lit-

tle, if any, practical importance since counsel normally has good rea-

sons for calling a trial court’s attention to potential error, e.g., the ad-

vantage to counsel and client of having an error speedily corrected.

In sum, in contrast to a “time of error” rule, a “time of review” inter-

pretation furthers the basic principle that “an appellate court must

apply the law in effect at the time it renders its decision,” Thorpe, su-

pra, at 281; works little, if any, practical harm upon the competing

administrative principle that insists that counsel call a potential er-

ror to the trial court’s attention; and is consistent with Rule 52(b)’s

basic purpose of creating a fairness-based exception to the general

Cite as: 568 U. S. ____ (2013) 3

Syllabus

requirement that an objection be made at trial to preserve a claim of

error. Pp. 6−9.

(c) The Government’s arguments to the contrary are unpersuasive.

Its claim that appellate courts should consider only errors that coun-

sel called to the trial court’s attention and errors that the court

should have independently recognized overlooks the way in which

Rule 52(b) restricts the appellate court’s authority to correct an error

to those errors that would, in fact, seriously affect the fairness, integ-

rity, or public reputation of judicial proceedings. The Government al-

so fears that the holding here will lead to too many “plain error”

claims. But, a new rule of law set by an appellate court cannot au-

tomatically lead that court to consider all contrary determinations by

trial courts plainly erroneous, given that lower court decisions that

are questionable but not plainly wrong fall outside the Rule’s scope,

and given that any error must have affected the defendant’s substan-

tial rights and affected the fairness, integrity, or public reputation of

judicial proceedings. Finally, the Government’s textual argument

that Rule 52(b) is written mostly in the past tense, whatever its mer-

its, is foreclosed by Johnson. Pp. 10−12.

646 F. 3d 223, reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ.,

joined.

Cite as: 568 U. S. ____ (2013) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–9307

_________________

ARMARCION D. HENDERSON, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[February 20, 2013]

JUSTICE BREYER delivered the opinion of the Court.

A federal court of appeals normally will not correct a

legal error made in criminal trial court proceedings unless

the defendant first brought the error to the trial court’s

attention. See United States v. Olano, 507 U. S. 725, 731

(1993). But Federal Rule of Criminal Procedure 52(b),

creating an exception to the normal rule, says that “[a]

plain error that affects substantial rights may be consid-

ered even though it was not brought to the [trial] court’s

attention.” (Emphasis added.) The Rule does not say

explicitly, however, as of just what time the error must be

“plain.” Must the lower court ruling be plainly erroneous

as of the time the lower court made the error? Or can an

error still count as “plain” if the erroneous nature of that

ruling is not “plain” until the time of appellate review?

The case before us concerns a District Court’s decision

on a substantive legal question that was unsettled at the

time the trial court acted, thus foreclosing the possibility

that any error could have been “plain” then. Before the

case was final and at the time of direct appellate review,

however, the question had become settled in the defend-

2 HENDERSON v. UNITED STATES

Opinion of the Court

ant’s favor, making the trial court’s error “plain”—but not

until that later time. In our view, as long as the error was

plain as of that later time—the time of appellate review—

the error is “plain” within the meaning of the Rule. And

the Court of Appeals “may . . . conside[r]” the error even

though it was “not brought to the [trial] court’s attention.”

Fed. Rule Crim. Proc. 52(b).

I

In early 2010, Armarcion Henderson, the petitioner,

pleaded guilty in Federal District Court to a charge of

being a felon in possession of a firearm. 646 F. 3d 223,

224 (CA5 2011). The District Judge accepted the plea

and, in June 2010, he sentenced Henderson to an above-

Guidelines prison term of 60 months. Ibid. The judge

entered the longer sentence to “try to help” Henderson by

qualifying him for an in-prison drug rehabilitation pro-

gram, a program that would provide “the treatment and

the counse[l]ing that this defendant needs right now.”

App. to Pet. for Cert. 35a, 40a.

Henderson’s counsel did not object. Indeed, the judge

asked counsel if there was “any reason why that sentence

as stated should not be imposed.” Id., at 41a. And counsel

replied, “Procedurally, no.” Ibid. Subsequently, Hender-

son appealed, claiming, among other things, that the

District Court had “plain[ly]” erred in sentencing him to

an above-Guidelines prison term solely for rehabilitative

purposes. 646 F. 3d, at 224.

In 2011, after Henderson was sentenced but before

Henderson’s appeal was heard, this Court decided Tapia

v. United States, 564 U. S. ___. There, we held that it is

error for a court to “impose or lengthen a prison sentence

to enable an offender to complete a treatment program or

otherwise to promote rehabilitation.” Id., at ___ (slip op.,

at 15). Given Tapia, Henderson’s sentence was unlawful,

and the District Court’s decision to impose that sentence

Cite as: 568 U. S. ____ (2013) 3

Opinion of the Court

was erroneous. But, since Henderson’s counsel had not

objected in the trial court, the Court of Appeals could not

correct the error unless Rule 52(b) applied. The Rule,

however, applies only if the error was “plain.” The error

was not plain before Tapia; it was plain after Tapia.

Thus, the Fifth Circuit had to determine the temporal

scope of Rule 52(b)’s words “plain error.”

The appeals court decided that Rule 52(b) did not give it

the authority to correct the trial court’s error. 646 F. 3d,

at 225. The appellate panel pointed out that, “[b]efore

Tapia, there was a circuit split on whether a District

Court can consider a defendant’s rehabilitative needs to

lengthen a sentence.” Ibid. The panel added that the

Fifth Circuit had “not pronounced on the question” before

Henderson was sentenced. Ibid. Thus, at the time when

the District Court reached its decision, the law in that

Circuit was unsettled. The Court of Appeals concluded

that “Henderson cannot show that the error in his case

was plain, . . . because an error is plain only if it was clear

under current law at the time of trial.” Ibid. (internal

quotation marks omitted).

The Fifth Circuit denied rehearing en banc by a divided

vote. 665 F. 3d 160 (2011) (per curiam) (7 to 10). Hender-

son filed a petition for certiorari. And we granted the

petition to resolve differences among the Circuits. Com-

pare, e.g., United States v. Cordery, 656 F. 3d 1103, 1107

(CA10 2011) (time of review), with, e.g., United States v.

Mouling, 557 F. 3d 658, 664 (CADC 2009) (time of error).

II

A

Is the time for determining “plainness” the time when

the error is committed, or can an error be “plain” if it is

not plain until the time the error is reviewed? The ques-

tion reflects a conflict between two important, here com-

peting, legal principles. On the one hand, “ ‘[n]o procedural

4 HENDERSON v. UNITED STATES

Opinion of the Court

principle is more familiar to this Court than that a consti-

tutional right,’ or a right of any other sort, ‘may be for-

feited in criminal as well as civil cases by the failure

to make timely assertion of the right before a tribunal hav-

ing jurisdiction to determine it.’ ” Olano, 507 U. S., at

731 (quoting Yakus v. United States, 321 U. S. 414, 444

(1944)). This principle favors assessing plainness limited

to the time the error was committed.

On the other hand, “[t]he general rule . . . is that an

appellate court must apply the law in effect at the time it

renders its decision.” Thorpe v. Housing Authority of

Durham, 393 U. S. 268, 281 (1969). See Ziffrin v. United

States, 318 U. S. 73, 78 (1943). Indeed, Chief Justice

Marshall wrote long ago:

“It is in the general true that the province of an ap-

pellate court is only to enquire whether a judgment

when rendered was erroneous or not. But if subse-

quent to the judgment and before the decision of the

appellate court, a law intervenes and positively

changes the rule which governs, the law must be

obeyed, or its obligation denied. . . . In such a case the

court must decide according to existing laws, and if it

be necessary to set aside a judgment, rightful when

rendered, but which cannot be affirmed but in viola-

tion of law, the judgment must be set aside.” United

States v. Schooner Peggy, 1 Cranch 103, 110 (1801).

This principle favors assessing plainness at the time of

review.

Rule 52(b) itself makes clear that the first principle is

not absolute. Indeed, we have said that a “ ‘rigid and

undeviating judicially declared practice under which

courts of review would invariably and under all circum-

stances decline to consider all questions which had not

previously been specifically urged would be out of har-

mony with . . . the rules of fundamental justice.’ ” Olano,

Cite as: 568 U. S. ____ (2013) 5

Opinion of the Court

supra, at 732 (quoting Hormel v. Helvering, 312 U. S. 552,

557 (1941); ellipsis in original). But neither is the second

principle absolute. Even where a new rule of law is at

issue, Rule 52(b) does not give a court of appeals authority

to overlook a failure to object unless an error not only

“affect[s] substantial rights” but also “seriously affect[s]

the fairness, integrity or public reputation of judicial

proceedings.” Olano, supra, at 732 (internal quotation

marks omitted; brackets in original). Because the two

principles here point in different directions and neither is

absolute, we cannot decide this conflict simply by looking

to one rather than to the other.

The text of Rule 52(b) does not resolve the problem. It

does not say that a court of appeals may consider an “error

that was plain”—language that would look to the past.

Rather, it simply says that a court of appeals may consider

“[a] plain error.” And that language leaves the temporal

question open. But see infra, at 12.

Neither does precedent answer the temporal question—

at least not directly. Olano is clearly relevant. There, we

said that Rule 52(b) authorizes an appeals court to correct

a forfeited error only if (1) there is “an error,” (2) the error

is “ plain,” and (3) the error “affect[s] substantial rights.”

507 U. S., at 732 (internal quotation marks omitted).

Pointing out that Rule 52 “is permissive, not mandatory,”

id., at 735, we added (4) that “the standard that should

guide the exercise of remedial discretion under Rule 52(b)”

is whether “the error ‘seriously affect[s] the fairness, in-

tegrity or public reputation of judicial proceedings,’ ” id.,

at 736 (quoting United States v. Atkinson, 297 U. S. 157,

160 (1936); brackets in original). At the same time, we

said that “[w]e need not consider the special case where

the error was unclear at the time of trial but becomes clear

on appeal because the applicable law has been clarified.”

507 U. S., at 734. That is the case now before us.

Johnson v. United States, 520 U. S. 461 (1997), is also

6 HENDERSON v. UNITED STATES

Opinion of the Court

relevant. We there considered a trial court’s decision that

was clearly correct under Circuit law when made but

which, by the time of review, had become plainly errone-

ous due to an intervening authoritative legal decision. We

concluded that, “where the law at the time of trial was

settled and clearly contrary to the law at the time of ap-

peal[,] it is enough that an error be ‘plain’ at the time of

appellate consideration.” Id., at 468. As in Olano, however,

we declined to decide whether that same rule should

apply where the law is unsettled at the time of error but

plain at the time of review. 520 U. S., at 467–468. As we

have said, this is precisely the case now before us.

B

The text, precedents, and background principles do not

directly dictate a result here. But prior precedent has

helped to shape current law. And that precedent, read in

light of those underlying principles, leads us to interpret

Rule 52(b)’s phrase “plain error” as applying at the time of

review. Given Johnson, a “time of error” interpretation

would prove highly, and unfairly, anomalous.

Consider the lay of the post-Johnson legal land: No one

doubts that an (un-objected to) error by a trial judge will

ordinarily fall within Rule 52(b)’s word “plain” as long as

the trial court’s decision was plainly incorrect at the time

it was made. E.g., Olano, supra, at 734. That much is

common ground. Johnson then adds that, at least in one

circumstance, an (un-objected to) error by a trial judge will

also fall within Rule 52(b)’s word “plain” even if the judge

was not plainly incorrect at the time it was made. That is

the circumstance where an error is “plain” even if the trial

judge’s decision was plainly correct at the time when it

was made but subsequently becomes incorrect based on a

change in law. 520 U. S., at 468. And, since by definition

the trial judge did not commit plain error at the time of

the ruling, Johnson explicitly rejects applying the words

Cite as: 568 U. S. ____ (2013) 7

Opinion of the Court

“plain error” as of the time when the trial judge acted.

Instead, Johnson deems it “enough that an error be ‘plain’

at the time of appellate consideration” for that error to fall

within Rule 52(b)’s category of “plain error.” Ibid.

But if the Rule’s words “plain error” cover both (1) trial

court decisions that were plainly correct at the time when

the judge made the decision and (2) trial court decisions

that were plainly incorrect at the time when the judge

made the decision, then why should they not also cover

(3) cases in the middle—i.e., where the law at the time of

the trial judge’s decision was neither clearly correct nor

incorrect, but unsettled?

To hold to the contrary would bring about unjustifi-

ably different treatment of similarly situated individuals.

Imagine three virtually identical defendants, each from a

different circuit, each sentenced in January to identical

long prison terms, and each given those long sentences for

the same reason, namely to obtain rehabilitative treat-

ment. Imagine that none of them raises an objection. In

June, the Supreme Court holds this form of sentencing

unlawful. And, in December, each of the three different

circuits considers the claim that the trial judge’s January-

imposed prison term constituted a legal error. Imagine

further that in the first circuit the law in January made

the trial court’s decision clearly lawful as of the time when

the judge made it; in the second circuit, the law in Janu-

ary made the trial court’s decision clearly unlawful as of

the time when the judge made it; and in the third circuit,

the law in January was unsettled.

To apply Rule 52(b)’s words “plain error” as of the time

of appellate review would treat all three defendants alike.

It would permit all three to go on to argue to the appellate

court that the trial court error affected their “substantial

rights” and “seriously affect[ed] the fairness, integrity or

public reputation of judicial proceedings.” Olano, supra,

at 732 (internal quotation marks omitted). To interpret

8 HENDERSON v. UNITED STATES

Opinion of the Court

“plain error” differently, however, would treat these three

virtually identical defendants differently, allowing only

the first two defendants, but not the third defendant, po-

tentially to qualify for Rule 52(b) relief. All three defen-

dants suffered from legal error; all three failed to object;

and all three would benefit from the new legal interpre-

tation. What reason is there to give two of these three

defendants the benefits of a new rule of law, but not the

third? Cf. Schooner Peggy, 1 Cranch, at 110.

There is no practical ground for making this distinction.

To the contrary, to distinguish and treat more harshly

cases where a circuit’s law was unclear would simply

promote arguments about whether the law of the circuit

initially was unclear (rather than clearly settled one way

or the other). And these arguments are likely to be par-

ticularly difficult to resolve where what is at issue is a

matter of legal degree, not kind. To what extent, for ex-

ample, did a prosecutor’s closing argument go too far down

the road of prejudice? A “time of error” interpretation also

would require courts of appeals to play a kind of temporal

ping-pong, looking at the law that now is to decide whether

“error” exists, looking at the law that then was to decide

whether the error was “plain,” and looking at the circum-

stances that now are to decide whether the defendant has

satisfied Olano’s third and fourth criteria. Thus, the “time

of error” interpretation would make the appellate process

yet more complex and time consuming.

We recognize, as the Solicitor General points out, that a

“time of error” rule, even if confined to instances in which

the law is uncertain, would in such cases provide an added

incentive to counsel to call the lower court judge’s atten-

tion to the matter at a time when that judge could quickly

take remedial action. And, even if no remedy is offered,

the lower court judge’s analysis may help the court of

appeals to decide the legal question. See Brief for United

States 30–32. See also Mouling, 557 F. 3d, at 664. We

Cite as: 568 U. S. ____ (2013) 9

Opinion of the Court

disagree with the Solicitor General, however, in that we

also believe that, in the present context, any added incen-

tive has little, if any, practical importance.

That is because counsel normally has other good reasons

for calling a trial court’s attention to potential error—for

example, it is normally to the advantage of counsel and his

client to get the error speedily corrected. And, even where

that is not so, counsel cannot rely upon the “plain error”

rule to make up for a failure to object at trial. After all,

that rule will help only if (1) the law changes in the de-

fendant’s favor, (2) the change comes after trial but before

the appeal is decided, (3) the error affected the defendant’s

“substantial rights,” and (4) the error “seriously affect[ed]

the fairness, integrity or public reputation of judicial pro-

ceedings.” Olano, 507 U. S., at 732 (internal quotation

marks omitted). If there is a lawyer who would deliberately

forgo objection now because he perceives some slightly

expanded chance to argue for “plain error” later, we sus-

pect that, like the unicorn, he finds his home in the imagi-

nation, not the courtroom.

The upshot is that a “time of review” interpretation

furthers the basic Schooner Peggy principle that “an appel-

late court must apply the law in effect at the time it ren-

ders its decision.” Thorpe, 393 U. S., at 281. It works

little, if any, practical harm upon the competing adminis-

trative principle that insists that counsel call a potential

error to the trial court’s attention. And, it is consistent

with the basic purpose of Rule 52(b), namely the creation

of a fairness-based exception to the general requirement

that an objection be made at trial. See supra, at 4.

At the same time, the competing “time of error” rule is

out of step with our precedents, creates unfair and anoma-

lous results, and works practical administrative harm.

Thus, in the direct appeals of cases that are not yet final,

we consider the “time of review” interpretation the better

reading of Rule 52’s words “plain error.”

10 HENDERSON v. UNITED STATES

Opinion of the Court

III

The Solicitor General makes several other important

arguments, but they fail to lead us to a different conclu-

sion. First, the Government argues that the purpose of

plain-error review is to ensure “the integrity of the [trial]

proceedings.” Brief for United States 33–34. In turn, the

argument goes, appellate courts should consider only

(1) errors that counsel called to the court’s attention and

(2) errors that the trial court should have known about

regardless, namely those that then were plain. Expanding

on this theme, one Court of Appeals described plain error

as “error that is so clear-cut, so obvious, a competent

district judge should be able to avoid it without benefit of

objection. When the state of the law is unclear at trial and

only becomes clear as a result of later authority, the Dis-

trict Court’s error is perforce not plain; we expect district

judges to be knowledgeable, not clairvoyant.” United

States v. Turman, 122 F. 3d 1167, 1170 (CA9 1997) (cita-

tion omitted).

This approach, however, overlooks the way in which

the plain-error rule—Rule 52(b)—restricts the appellate

court’s authority to correct an error to those errors that

would, in fact, seriously affect the fairness, integrity,

or public reputation of judicial proceedings. Cf. United

States v. Farrell, 672 F. 3d 27, 36–37 (CA1 2012) (consid-

ering the issue from this perspective). And the approach

runs headlong into Johnson. The error in Johnson was

not an error that the District Court should have known

about at the time. It was the very opposite: The District

Judge should have known that his ruling (at the time he

made it) was not error; and perhaps not even clairvoyance

could have led him to hold to the contrary. Cf. Khan v.

State Oil Co., 93 F. 3d 1358, 1362–1364 (CA7 1996) (regis-

tering disagreement with this Court’s precedent while

following it nonetheless); State Oil Co. v. Khan, 522 U. S.

3, 20–22 (1997) (approving of that approach).

Cite as: 568 U. S. ____ (2013) 11

Opinion of the Court

Rather, Johnson makes clear that plain-error review is

not a grading system for trial judges. It has broader pur-

poses, including in part allowing courts of appeals better

to identify those instances in which the application of a

new rule of law to cases on appeal will meet the demands

of fairness and judicial integrity. See Johnson, 520 U. S.,

at 467–468; Olano, 507 U. S., at 732.

Second, the Government fears that our holding will lead

to too many claims of “plain error.” Brief for United States

26–28. After all, courts of appeals, not just the Supreme

Court, clarify the law through their opinions. When a

court of appeals does so, will not all defendants, including

many who never objected in the court below, insist that

the court of appeals now judge their cases according to the

new rule? And will “plain error” in such cases not then

disappear, leaving only simple “error” in its stead?

The answer to this claim is that a new rule of law, set

forth by an appellate court, cannot automatically lead

that court to consider all contrary determinations by trial

courts plainly erroneous. Many such new rules, as we

have pointed out, concern matters of degree, not kind.

And a lower court ruling about such matters (say, the

nature of a closing argument), even if now wrong (in light

of the new appellate holding), is not necessarily plainly

wrong. The Rule’s requirement that an error be “plain”

means that lower court decisions that are questionable but

not plainly wrong (at time of trial or at time of appeal) fall

outside the Rule’s scope.

And there are other reasons for concluding that our

holding will not open any “plain error” floodgates. As we

have said, the Rule itself contains other screening criteria.

The error must have affected the defendant’s substantial

rights and it must have seriously affected the fairness,

integrity, or public reputation of judicial proceedings.

Olano, supra, at 732. When courts apply these latter

criteria, the fact that a defendant did not object, despite

12 HENDERSON v. UNITED STATES

Opinion of the Court

unsettled law, may well count against the grant of Rule

52(b) relief. Moreover, the problem here arises only when

there is a new rule of law, when the law was previously

unsettled, and when the District Court reached a decision

contrary to the subsequent rule. These limitations may

well explain the absence of any account before us of “plain

error” inundation in those Circuits that already follow the

interpretation we now adopt. See, e.g., Farrell, supra, at

36–37; Cordery, 656 F. 3d, at 1107; United States v. Gar-

cia, 587 F. 3d 509, 519–520 (CA2 2009); United States v.

Ross, 77 F. 3d 1525, 1539 (CA7 1996).

Finally, the Government points out that Rule 52(b)

is written mostly in the past tense. It says that a “plain

error . . . may be considered even though it was not

brought to the court’s attention.” (Emphasis added.) This

use of the past tense, the Government argues, refers to a

“plain error” that was not “brought to the court’s atten-

tion” back then, when the error occurred. And that lin-

guistic fact, in turn, means that the error must have been

plain at that time. Brief for United States 18–22.

Whatever the merits of this textual argument, however,

Johnson forecloses it. The error at issue in that case was

not even an error, let alone plain, at the time when the

defendant might have “brought [it] to the court’s atten-

tion.” Nonetheless, we found the error to be “plain error.”

We cannot square the Government’s textual argument

with our holding in that case.

IV

For these reasons, we conclude that whether a legal

question was settled or unsettled at the time of trial, “it is

enough that an error be ‘plain’ at the time of appellate

consideration” for “[t]he second part of the [four-part]

Olano test [to be] satisfied.” Johnson, supra, at 468. The

contrary judgment of the Court of Appeals is reversed, and

the case is remanded for further proceedings consistent

Cite as: 568 U. S. ____ (2013)

13

Opinion of the Court

with this opinion.

It is so ordered.

Cite as: 568 U. S. ____ (2013) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–9307

_________________

ARMARCION D. HENDERSON, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[February 20, 2013]

JUSTICE SCALIA, with whom JUSTICE THOMAS and

JUSTICE ALITO join, dissenting.

When the law was unsettled at the time an error was

committed, the error is not “plain” within the meaning of

Federal Rule of Criminal Procedure 52(b). To hold other­

wise disregards the importance of claim preservation and

deprives Rule 52(b)’s plainness limitation of all conceiv-

able purpose.

I

The Court begins its analysis by misconceiving our task.

We are here, it thinks, in order to resolve a supposed

“conflict” between two “competing . . . legal principles,”

ante, at 3—the principle that a legal right may be forfeited

by the failure to assert it in a timely fashion, and the

principle that an appellate court must apply the law in

effect at the time of its judgment. To begin with, there is

no such conflict. Forfeiture rules establish exceptions to

the legal rights that they qualify; like all exceptions they

do not “conflict” with what they modify but rather mark

out its scope. And second, our task in this case is not the

exalted philosophical one of deciding where justice lies. It

is presumed (rightly or not) that Congress has taken that

into consideration in approving the Rules of Criminal

Procedure. Ours, alas, is the more mundane and lawyerly

2 HENDERSON v. UNITED STATES

SCALIA, J., dissenting

task of deciding whether the Rules of Criminal Procedure

make the failure of timely objection an exception to the

rule that an appellate court applies the law in effect at the

time of its judgment.

Having addressed itself to the wrong question, the Court

unsurprisingly gives the wrong answer. The correct an­

swer must be sought in the text of the Federal Rules

of Criminal Procedure, beginning with Rule 51(b), which

provides: “A party may preserve a claim of error by in­

forming 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.” (Emphasis added). Surely

this means that a party does not preserve a claim of

error—cannot assert that on appeal, whatever the law on

the point may be—unless he informs the court or objects to

the court’s action when the ruling or order is made or

sought. If it does not mean that, it means nothing.

We move then to Rule 52(b), which says: “A plain error

that affects substantial rights may be considered even

though it was not brought to the [trial] court’s attention.”

The meaning of that is not difficult to grasp. It is an

exception to Rule 51(b)’s rule of forfeiture—an exception

that applies only to “plain error.” The question before us

is whether plainness means plainness at the time “the

[trial] court ruling or order is made or sought” or plainness

when the case reaches the Court of Appeals.

The answer to that question seems to me entirely clear.

A rudimentary principle of textual interpretation—so

commonsensical that it scarcely needs citation—is that if

one interpretation of an ambiguous provision causes it to

serve a purpose consistent with the entire text, and the

other interpretation renders it pointless, the former pre­

vails. Limiting review of forfeited errors to those that

were “plain” when the objection should have been made

serves a purpose consistent with Rule 51: It permits re­

Cite as: 568 U. S. ____ (2013) 3

SCALIA, J., dissenting

viewing courts to correct error where doing so will not

thwart the objective of causing objections to be made when

they can do some good. Objection is not so much needed

when the error ought to be plain to the court and to the

prosecution. And the fault in overlooking such an error is

not solely the defendant’s, but must be shared equally by

the court and the prosecutor. We have affirmed this prin­

ciple, and have affirmed the proposition that plainness is

to be determined at the trial stage, in our prior opinions.

“By its terms, recourse may be had to [Rule 52(b)] only on

appeal from a trial infected with error so ‘plain’ the trial

judge and prosecutor were derelict in countenancing it,

even absent the defendant’s timely assistance in detecting

it.” United States v. Frady, 456 U. S. 152, 163 (1982).

Where error at trial is plain, the rationale for penalizing

forfeiture is at its weakest and the injustice to the defend­

ant correspondingly strong.

The Court, on the other hand, is unable to provide any

purpose served by a plainness requirement applied when

the case reaches the Court of Appeals. Consider two de-

fendants in the same circuit who fail to object to an

identical error committed by the trial court under unset­

tled law. By happenstance, Defendant A’s appeal is con­

sidered first. The court of appeals recognizes that there

was error, but denies relief because the law was unclear

up to the time of the court of appeals’ opinion. Defendant

B’s appeal is heard later, and he reaps the benefit of the

opinion in Defendant A’s case settling the law in his favor.

What possible purpose is served by distinguishing between

these two appellants? “The negligence in not raising the

error is equivalent regardless of what happens by the time

of appeal.” United States v. Escalante-Reyes, 689 F. 3d

415, 429 (CA5 2012) (en banc) (Smith, J., dissenting).

Since a plain-error doctrine of this sort cannot possibly

induce counsel to make contemporaneous objection, it

seemingly has no purpose whatever except to create the

4 HENDERSON v. UNITED STATES

SCALIA, J., dissenting

above described anomaly.

No, that is not quite true. It does serve the purpose of

enabling today’s opinion to say that the plain-error rule

has been “preserved,” and has not been entirely converted

to a simple-error rule. Of course a simple-error rule—all

trial-court mistakes affecting substantial rights can be

corrected on appeal—would better serve the Court’s mis­

taken understanding that the only purpose of Rule 52(b) is

fairness, ante, at 9,1 combined with its erroneous percep­

tion that all defendants who fail to make a timely objec­

tion to misapplication of the law stand in the same boat,

see ante, at 7. But a simple-error rule would be contrary

to the clear text of Rule 52(b), which tempers Rule 51(b)

with “fairness” only when the error is plain. The Court

must find some application for the plainness requirement,

even if it be one that is utterly pointless. It has done so.

II

The Court contends that evaluating plainness at the

trial-court level “runs headlong into Johnson [v. United

States, 520 U. S. 461 (1997)].” Ante, at 10. The error

——————

1 The reality, of course, is that the object of Rule 52(b) is fairness to

the extent that is compatible with preservation of the principal objective

of the contemporaneous-objection requirement of Rule 51(b). The Court

suppresses this limitation by paying lip service to Olano’s four-prong

Rule 52(b) analysis while reducing the plain-error requirement which is

part of that analysis to a nullity. It asserts that “the plain-error rule—

Rule 52(b)—restricts the appellate court’s authority to correct an error

to those errors that would, in fact, seriously affect the fairness, integ­

rity, or public reputation of judicial proceedings.” Ante, at 10. That is a

description of prong 4 of the Olano analysis, see United States v. Olano,

507 U. S. 725, 732 (1993), which does not even pertain to the words

“plain error” in Rule 52(b), but rather to the word “may”—to when a

court should exercise its discretion to consider an unobjected-to plain

error. It has nothing whatever to do with plainness. Rule 52(b) clearly

restricts review to those unobjected-to errors that are plain, and the

Court offers no explanation—none—of what purpose that restriction

can possibly serve if plainness is determined at the appellate stage.

Cite as: 568 U. S. ____ (2013) 5

SCALIA, J., dissenting

there, it points out, “was not an error that the District

Court should have known about at the time.” Ibid. John-

son would have been decided the same way at whatever

stage the plainness requirement was evaluated, since the

Court found that the error did “not meet the final re­

quirement of Olano,” that “the forfeited error ‘seriously

affect[s] the fairness, integrity or public reputation of

judicial proceedings.’ ” 520 U. S., at 469.2 I accept, how­

ever, that the Court said in Johnson, and will presumably

hold in future cases, that in the situation presented by

that case, plainness at the time of appeal will suffice.

That was a situation in which the law was settled against

the defendant at trial but became plain in his favor by the

time of appeal. As to that narrow class of cases, a time-of­

appeal rule promotes both the fairness and efficiency

concerns of Rule 51(b). When the law is settled against a

defendant at trial he is not remiss for failing to bring his

claim of error to the court’s attention. It would be futile.

An objection would therefore disserve efficiency, and a

time-of-trial rule “would result in counsel’s inevitably

making a long and virtually useless laundry list of objec­

tions to rulings that were plainly supported by existing

precedent.” Id., at 468. In that unique context, a time-of­

appeal approach actually “furthers the substantial inter­

est in the orderly administration of justice that underlies

the contemporaneous objection rule.” United States v.

David, 83 F. 3d 638, 644 (CA4 1996).

The Court wrote in Johnson a circumspect opinion that

took pains to exclude from the time-of-appeal method it

articulated the case before us now. After agreeing with

the petitioner that in the situation before the Court a

time-of-trial rule would impede rather than assist fairness

——————

2 That is why I was able to join the judgment in Johnson, even though

I did not join the portion of the opinion addressing the stage at which

plainness was to be evaluated. See 520 U. S., at 462.

6 HENDERSON v. UNITED STATES

SCALIA, J., dissenting

and efficiency, the opinion said that “in a case such as

this—where the law at the time of trial was settled and

clearly contrary to the law at the time of appeal—it is

enough that an error be ‘plain’ at the time of appellate

consideration.” 520 U. S., at 468. The limitation of the

Court’s opinion is clear. The concerns that justified evalu­

ating plainness at the time of appeal in Johnson cut

against such a rule here, where the law was not clear but

uncertain at the time of trial. In the difficult and often

hectic process of conducting a trial, a judge depends on the

parties—“officers of the court”—to flag less-than-obvious

issues that might otherwise escape his notice. A prompt

claim of error in those circumstances is not futile but

eminently useful.

The Court hypothesizes three defendants failing to

object at trial to a ruling that later (before the case

reaches the court of appeals) is shown by a Supreme Court

opinion to have been error: one tried in a circuit whose law

at the time clearly accorded with the Supreme Court’s

holding, one tried in a circuit whose law clearly contra­

dicted that holding, and one tried in a circuit whose law on

the point was uncertain. Ante, at 7. These defendants,

the Court asserts, are “similarly situated,” and the plain­

error-at-time-of-appeal rule appropriately treats them

alike. But they are not “similarly situated” insofar as the

purposes of Rules 51(b) and 52(b) are concerned, and

treating them alike frustrates those purposes. Where the

circuit law clearly accorded with the Supreme Court’s

later opinion, the trial court should have known that law,

and hence the raising of the point by counsel should not

have been needed; this is the classic case for plain-error

reversal on appeal. Where the circuit law clearly contra­

dicted the later Supreme Court opinion, again the trial

court should have known that law, and counsel’s raising

the point would be futile and wasteful rather than sparing

of judicial resources; this is the classic case for Johnson

Cite as: 568 U. S. ____ (2013) 7

SCALIA, J., dissenting

reversal on appeal. Where the circuit law was unsettled,

the trial court was most in need of counsel’s assistance,

and the failure to provide it has no excuse; this is the clas-

sic case for normal application of the contemporaneous­

objection requirement of Rule 51(b). To be sure, these

litigants are alike in that all three “suffered from legal

error,” ante, at 8; and if the sole, unqualified objective of

appellate review were to correct trial-court error that

would suffice to entitle them to equal treatment. Until

today, however, the objective of correcting trial-court error

has been qualified by the objective of inducing counsel to

bring forward claims of error when they can be remedied

without overturning a verdict and setting the convicted

criminal defendant free. To overlook counsel’s failure to

object, spend judicial resources to conduct plain-error

review, and set aside a criminal conviction where retrial

may be difficult if not impossible, is exactly the “ ‘extrava­

gant protection’ ” that this Court has up until now disa­

vowed. United States v. Young, 470 U. S. 1, 16 (1985)

(quoting Henderson v. Kibbe, 431 U. S. 145, 154, n. 12

(1977), in turn quoting Namet v. United States, 373 U. S.

179, 190 (1963)).

III

The Court sees no harm in its evisceration of the

contemporaneous-objection rule, disbelieving that a lawyer

would “deliberately forgo objection now because he per­

ceives some slightly expanded chance to argue for ‘plain

error’ later,” ante, at 9. It is hard to say whether this

conclusion springs from a touching faith in the good

sportsmanship of criminal defense counsel or an unkind

disparagement of their intelligence. Where a criminal

case always has been, or has at trial been shown to be, a

sure loser with the jury, it makes entire sense to stand

silent while the court makes a mistake that may be the

basis for undoing the conviction. The happy-happy

8 HENDERSON v. UNITED STATES

SCALIA, J., dissenting

thought that counsel will not “deliberately forgo objection”

is not a delusion that this Court has hitherto indulged,

worrying as it has (in an opinion joined by the author of

today’s opinion) about counsel’s “ ‘sandbagging the court’ ”

by “remaining silent about his objection and belatedly

raising the error only if the case does not conclude in his

favor.” Puckett v. United States, 556 U. S. 129, 134 (2009).

In any event, sandbagging is not the only evil to be feared.

What is to be feared even more is a lessening of counsel’s

diligent efforts to identify uncertain points of law and

bring them (or rather the defendant’s version of them) to

the court’s attention, so that error will never occur. It is

remarkably naïve to disbelieve the proposition that lessen­

ing the costs of noncompliance with Rule 51(b) diminishes

the incentives to be diligent in objecting. See Meltzer,

State Court Forfeitures of Federal Rights, 99 Harv. L.

Rev. 1128, 1135 (1986). Meant to apply only in “ex­

ceptional circumstances,” United States v. Atkinson, 297

U. S. 157, 160 (1936), Rule 52(b) today has been trans­

formed into an end-run around the consequences of claim

forfeiture.

The Court’s final argument, that a time-of-error rule

would “wor[k] practical administrative harm,” ante, at 9,

is even more peculiar than the rest of its opinion. What­

ever administrative ease may flow from a time-of-appeal

rule (and more on that in a moment) it is outweighed

by “lower[ing] the bar for plain-error review, which will

undoubtedly result in more remands and new trials.”

Escalante-Reyes, 689 F. 3d, at 431 (Smith, J., dissenting).

The Court’s Pollyannaish rejoinder is that few reversals

will occur anyway because a defendant must still show

that the error affected his substantial rights (Olano prong

3) and seriously affected the fairness of judicial proceed­

ings (Olano prong 4), ante, at 11–12. I doubt that. Many

hitherto forfeited claims may incorrectly be found to meet

those vague requirements. And all claims—whether found

Cite as: 568 U. S. ____ (2013) 9

SCALIA, J., dissenting

to meet them or not—will have to be evaluated under

those vague standards, requiring intensive consideration

and producing a judgment whose correctness is often

difficult to assess.

As for the Court’s belief that it is difficult to assess

whether error was plain at the time of trial: it is really not

that hard. Appellate courts regularly conduct that type

of inquiry in other areas of law. For example, in the con­

text of federal habeas corpus review under 28 U. S. C.

§2254(d)(1) relief may not be granted to a state prisoner

based on a legal error unless that error was contrary to or

an unreasonable application of clearly established federal

law as of “ ‘the time the state court render[ed] its deci­

sion,’ ” Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip

op., at 10). Similarly, we determine whether public offi­

cials have immunity based on what law was clearly estab­

lished at the time of their acts. See Harlow v. Fitzgerald,

457 U. S. 800, 818–819 (1982). The Court offers us no

reason to believe the inquiry would be any more difficult

in this context.

In any event, a time-of-appeal rule for assessing plain­

ness does not eliminate the need to assess plainness. And

contrary to the Court’s belief, that need will not arise only

“when there is a new rule of law, when the law was previ­

ously unsettled, and when the District Court reached a

decision contrary to the subsequent rule.” Ante, at 12

(emphasis added). That easy situation, which exists in the

present case, may well be the exception rather than the

rule for claims that failure to object to plain error should

be excused. For a trial-court error is plain not only when

it becomes so in retrospect, after the law has subsequently

been clarified; but also when the court disregards the pre-

existing “ ‘clarity of a statutory provision or court rule.’ ”

United States v. Perry, 479 F. 3d 885, 893, n. 8 (CADC

2007). This Court recognized as much in United States v.

Olano, 507 U. S. 725 (1993), where the Government “es­

10 HENDERSON v. UNITED STATES

SCALIA, J., dissenting

sentially concede[d],” and this Court accepted, that the

District Court’s interpretation of Federal Rule of Criminal

Procedure 24(c) was plainly erroneous, even though the

appellate court had yet to say so, because the text of the

rule was so clear. Id., at 737. For that and other reasons,

the question whether the law was “unsettled” will often

not admit of an easy answer, and our Courts of Appeals

will have to resolve lots of claims that it was not. The

practical difficulties the Court professes to avoid will not

be avoided.

* * *

Today’s opinion converts the “plain error” limitation of

Rule 52(b), a limitation designed to induce trial objections

that will assist the court, into a limitation designed to

serve no conceivable purpose at all. Fair trial will suffer

from the ensuing disregard of the now unenforceable

contemporaneous-objection rule. I respectfully dissent.