United States v. Mark Albritton

ROGERS, Circuit Judge,

concurring:

The government and appellant Albritton agree that the court’s review of Albritton’s tardy departure request is for “plain error,” Appellee’s Brief at 10; Appellant’s Brief at 18, limiting our review to a determination of whether the' district court’s refusal to grant depárteme was either “in violation of law” or “an incorrect application of the sentencing guidelines.” 18 U.S.C. § 3742 (a)(1), (e)(1); § 3742(a)(2), (e)(2) (1988); see United States v. Watson, 57 F.3d 1093, 1096-97 (D.C.Cir. 1995); United States v. Saro, 24 F.3d 283, 290-92 (D.C.Cir.1994); United States v. Foster, 988 F.2d 206, 209 (D.C.Cir.), cert. denied, 508 U.S. 945 , 113 S.Ct. 2431 , 124 L.Ed.2d 651 (1993). Plain errors are those errors that obviously and fundamentally violate a defendant’s rights. United States v. Dawson, 990 F.2d 1314, 1316 (D.C.Cir.1993).

Unlike the government, Judge Henderson would not allow plain error review for a waived Guideline claim. See concurring opinion of Judge Henderson, at 2. In so doing, she relies on general statements by this court that a district court’s decision to deny a departure request is unreviewable. See, e.g., United States v. Johnson, 28 F.3d 151, 156 (D.C.Cir.1994) (“[A] ‘sentencing court’s discretionary refusal to depart downward is not reviewable on appeal.’ ”), quoting United States v. Spencer, 25 F.3d 1105, 1112 (D.C.Cir.1994); United States v. Pinnick, 47 F.3d 434, 439 (D.C.Cir.1995) (“A court’s discretionary decision that the particular circumstances of a given case do not warrant a departure, however, is not reviewable.”); concurring opinion of Judge Henderson at 1. However, in view of the language of the statute, see 18 U.S.C. § 3742 (a)(1), (e)(1); § 3742(a)(2), (e)(2), those statements must be read to mean that this court cannot second-guess the district court’s exercise of reasoned discretion but can review for an error of law or an incorrect application of the Guidelines. Cf. United States v. Sammoury, 74 F.3d 1341, 1345 (D.C.Cir.1996) (“it is no more an infringement on the discretion of trial judges to set aside a sentence when the refusal to depart rests on a clearly erroneous factual mistake than to set aside a sentence when the refusal stems from a misinterpretation of the Guidelines” because “[i]n both situations, the judge has in effect not exercised the discretion conferred on him [or her] to depart or not to depart, in the former because of an error of fact, in the latter because of an error of law.”); id. at 1343-44 (citing United States v. Burnett, 66 F.3d 137, 139 (7th Cir. 1995)). Review for plain error remains. 18 U.S.C. § 3741 (1988); Fed.R.Crim.P. 52; see Watson, 57 F.3d at 1097 n. 6; see generally United States v. Olano, 507 U.S. 725, 730-32 , 113 S.Ct. 1770, 1776 , 123 L.Ed.2d 508 (1993) (“[a] rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had-not previously been specifically urged would be out of harmony with ... the rules of fundamental justice”) (quoting Hormel v. Helvering, 312 U.S. 552, 557 , 61 S.Ct. 719, 721 , 85 L.Ed. 1037 (1941)); id. 507 U.S. at 732-34 , 113 S.Ct. at 1777 (distinguishing between waiver and forfeiture of a right). Thus, as this court acknowledged in describing the nature of plain error review of sentencing in Saro, 24 F.3d at 287-88 , where there was “obvious error” and clear error in fact finding evident upon examining the evidence, verdict, and documents on which the district court relied in sentencing, a remand for re-sentencing was required. Id. at 291-92 ; 18 U.S.C. § 3742 (f)(1) (1988). Given the high threshold that a defendant must show to obtain relief because of plain error, Saro, 24 F.3d at 286-87 ; Olano, 507 U.S. at 736-37 , 113 S.Ct. at 1779 , it can hardly be that “we unintentionally reward the practice of holding back from the district court.” Concurring opinion of Judge Henderson at 2.

Albritton failed to request a departure under USSG § 5K2.0, and under the circumstances the district court had no affirmative obligation to address such a departure in the absence of a request. Cf. United States v. Bradshaw, 935 F.2d 295, 303 (D.C.Cir.1991). There is nothing in the record to suggest that the district court plainly misunderstood *715 its authority to depart from the guidelines, or that it clearly erred in its conclusion regarding Albritton’s alleged “minimal” participation. See id. Albritton makes no claim that his sentence was otherwise plainly in violation of law. See Burnett, 66 F.3d at 139 . Therefore, finding no plain error, I concur in Parts I and IIA and in affirming the judgment of conviction.