United States v. Jimmy D. McGuire

JERRY E. SMITH, Circuit Judge,

concurring in part and dissenting in part:

I.

While concurring in the remainder of the majority opinion, I respectfully dissent from part II, because I read United States v. Calverley, 37 F.3d 160 (5th Cir.1994) (en banc), cert. denied, - U.S. -, 115 S.Ct. 1266 , 131 L.Ed.2d 145 (1995), as requiring us to consider the clarity of the law at the time of the claimed error, not at the time of review. Calverley holds that plain error “at a minimum, contemplates an error which was clear under current law at the time of trial.” Id. at 162-63 (emphasis added, internal quotations omitted). Our analysis of the plaintiff’s claim in Calverley shows that we meant what we said: “Assuming without deciding that studied analysis of [the law] would lead to the conclusion that [the defendant’s argument is correct], this conclusion was not obvious when the court sentenced Calverley... Consequently, neither the trial judge nor the prosecutor may be considered derelict in failing to notice [the error].” Id. at 165 (emphasis added). 1

In short, when assessing the clarity of a claimed error, we do not directly consider whether error occurred; instead, we determine only whether the district court was “derelict” in making an “obvious” error. Subsequent legal developments are irrelevant.

The majority, in its own words, “constructs] an exception” to this rule. Maj. op. at 2817 n. 8. Calverley carefully lays out a series of bright-line rules, reconciling many of our precedents and overruling all others: “Although most of our opinions have recognized that an error must be clearly evident to be plain, a significant number have omitted or given insufficient weight to this element of the plain error equation. We today disavow all holdings and articulations inconsistent herewith.” 37 F.3d at 163-64 ; see also id. at 163 n. 20, 164 n. 27 (citing overruled cases).

*1414 In summary, we decided Calverley en banc, just over a year ago, in a thorough and carefully-reasoned opinion that overrules a significant number of panel opinions in order to clarify this area of the law. As a result, Calverley deserves to be interpreted generously and deferentially. 2

II.

Although the majority is correct that an objection would have been perceived as frivolous at the time of trial, following Calverley would not cut against the policies that underlie plain error review. If we were concerned primarily with fixing mistakes, and not with protecting defendants against derelict judging, we would reverse all errors that are “plain” or “obvious” to us, regardless of whether other appellate judges have already ruled on similar claims. Whether a controlling precedent is decided before trial, between trial and appeal, or after appeal is pure happenstance; no matter how we conduct plain error review, we will treat defendants differently at divers times.

We therefore review forfeited errors only to protect “the fairness, integrity, [and] public reputation of judicial proceedings,” 3 and we do so by ensuring that criminal defendants are not convicted or sentenced in blatant disregard of settled law. But we do not insist that trials be free of forfeited error.

Application of Calverley in this context also would be consistent with the line of cases holding that we must apply the law as it is understood at the time of appeal. We review a claim of forfeited error only if the appellant satisfies the plain error requirements of Fed.R.Crim.P. 52(b), just as we consider a habeas corpus petition or 42 U.S.C. § 1983 claim only when our older precedent satisfies a set of threshold requirements. 4 If a claim meets the dictates of rule 52(b), we follow Griffith v. Kentucky, 479 U.S. 314 , 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987), and evaluate the merits according to our current understanding of the law. 5

I agree with the majority that Calverley is not technically stare decisis on this point because it did not present the question of an intervening precedent. I also understand that application of Calverley to the facts at hand might appear harsh, as an objection would have been perceived as frivolous. Nonetheless, I would follow our own precedent and affirm.

. This passage clarifies our observation that the Supreme Court had declined to determine the relevance of intervening precedents. See 37 F.3d at 163 n. 18. While that footnote is ambiguous— it could mean either that we were also reserving that issue or that while we were speaking to it, we were aware that the case we were citing had not — the subsequent passage considers only the obviousness of the claimed error at the time the district court made it.

. Most recently, this court has interpreted Calverley in a similar fashion, in United States v. Dupaquier, 74 F.3d 615, 619 (5th Cir.1996). This caselaw is binding on us, as an interpretation and application of Calverley .

. We reverse even obvious errors only when they affect a defendant's substantial rights and "seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Id. at 164 (quoting United States v. Atkinson, 297 U.S. 157, 160 , 56 S.Ct. 391, 392 , 80 L.Ed. 555 (1936)).

. See Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989) (holding that habe-as petitioners receive the benefit of “new rules” only in limited circumstances); Rankin v. Klevenhagen, 5 F.3d 103, 108 (5th Cir.1993) (deciding that officials have qualified immunity against suits under § 1983 if their actions were reasonable in light of judicial precedent at the time of the offense).

. At least three Supreme Court Justices apparently agree that we must look to the clarity of the law at the time of the error. Although the government waived the plain error requirements in Gaudin, Chief Justice Rehnquist noted that because all circuits but one had found materiality to be a question of law, "it is certainly subject to dispute whether the error in this case was 'clear under current law.’" United States v. Gaudin, - U.S. -, -, 115 S.Ct. 2310, 2322 , 132 L.Ed.2d 444 (1995) (Rehnquist, C.J., concurring, joined by O’Connor and Breyer, JJ.) (quoting United States v. Olano, 507 U.S. 725, 732-34 , 113 S.Ct. 1770, 1777 , 123 L.Ed.2d 508 (1993)) (emphasis added). See also United States v. Allen, 76 F.3d 1348, 1366-68 (5th Cir.1996) (applying plain error analysis in light of intervening decision in Gaudin).