Respondents Brief — Gonzalo Holguin-Hernandez, Petitioner v. United States
Supreme Court briefJul 29, 2019
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No. 18-7739
In the Supreme Court of the United States
GONZALO HOLGUIN-HERNANDEZ, PETITIONER
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
SUPPORTING VACATUR
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
BRIAN A. BENCZKOWSKI
Assistant Attorney General
ERIC J. FEIGIN
MORGAN L. RATNER
Assistants to the Solicitor
General
FRANCESCO VALENTINI
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether, to properly preserve a claim that the district court ordered a substantively unreasonable term
of imprisonment, a criminal defendant who requests a
shorter term must also object to the reasonableness of
a longer term of imprisonment after it is ordered.
(I)
TABLE OF CONTENTS
Page
Opinion below ................................................................................ 1
Jurisdiction .................................................................................... 1
Statutory provisions and rules involved ..................................... 1
Statement ...................................................................................... 2
A. Legal background ............................................................. 3
1. Imposition of a sentence ............................................ 3
2. Revocation of supervised release .............................. 6
B. Factual and procedural background ............................... 7
Summary of the argument ......................................................... 11
Argument:
A criminal defendant who advocated for a shorter term
of imprisonment need not also object after the district
court’s ruling to preserve a claim that a longer term is
substantively unreasonable .................................................. 15
A. A sentencing claim that a defendant did not
specifically identify to the district court is subject to
plain-error review on appeal .......................................... 16
B. A specific request for a lower sentence can satisfy
Rule 51’s contemporaneous-objection requirement .... 20
1. Under Rule 51’s text, a defendant preserves a
substantive challenge to a sentence by arguing
for a different one ..................................................... 21
2. Requiring a substantive-reasonableness
objection would not serve the purposes of the
plain-error rule.......................................................... 27
3. Prevailing circuit practice reflects the proper
approach .................................................................... 30
C. This Court should vacate the judgment below and
remand the case to the court of appeals, which
should in turn affirm petitioner’s revocation term ...... 32
Conclusion ................................................................................... 34
Appendix — Statutory provisions ........................................... 1a
(III)
IV
TABLE OF AUTHORITIES
Cases:
Page
Anderson v. City of Bessemer City,
470 U.S. 564 (1985).............................................................. 25
Burns v. United States, 501 U.S. 129 (1991)....................... 15
Dean v. United States, 137 S. Ct. 1170 (2017) .................... 21
Gall v. United States, 552 U.S. 38 (2007) ................... passim
Johnson v. United States, 529 U.S. 694 (2000) ..................... 6
Kimbrough v. United States, 552 U.S. 90 (2007)................ 23
Molina-Martinez v. United States, 136 S. Ct. 1338
(2016) .......................................................................... 5, 12, 18
Pepper v. United States, 562 U.S. 476 (2011) ................. 3, 21
Poole v. Fleeger, 36 U.S. (11 Pet.) 185 (1837) ..................... 26
Puckett v. United States, 556 U.S. 129 (2009) ........... passim
Rita v. United States, 551 U.S. 338 (2007) ...................... 4, 25
Rosales-Mireles v. United States, 138 S. Ct. 1897
(2018) .................................................................... 5, 17, 18, 24
Tapia v. United States, 564 U.S. 319 (2011) ................. 14, 33
United States v. Atkinson, 297 U.S. 157 (1936).................. 17
United States v. Autery, 555 F.3d 864
(9th Cir. 2009) ................................................................ 22, 28
United States v. Avello-Alvarez, 430 F.3d 543
(2d Cir. 2005) ......................................................................... 7
United States v. Booker, 543 U.S. 220
(2005) ...........................................................4, 5, 12, 18, 23, 24
United States v. Castro-Juarez, 425 F.3d 430
(7th Cir. 2005) .......................................................... 28, 29, 30
United States v. Corona-Gonzalez, 628 F.3d 336
(7th Cir. 2010) ...................................................................... 31
United States v. Cotton, 399 F.3d 913
(8th Cir. 2005) ........................................................................ 7
V
Cases—Continued:
Page
United States v. Curry, 461 F.3d 452
(4th Cir. 2006) ................................................................ 22, 28
United States v. Fleming, 397 F.3d 95
(2d Cir. 2005) ......................................................................... 7
United States v. Flores-Mejia, 759 F.3d 253
(3d Cir. 2014) ....................................................................... 30
United States v. Frady, 456 U.S. 152 (1982)....................... 17
United States v. Gonzalez, 250 F.3d 923
(5th Cir. 2001) .................................................................. 7, 33
United States v. Haymond, 139 S. Ct. 2369 (2019) ............ 33
United States v. Huusko, 275 F.3d 600
(7th Cir. 2001) ........................................................................ 7
United States v. Lopez-Flores, 444 F.3d 1218
(10th Cir. 2006), cert. denied, 551 U.S. 1162 (2007) ......... 30
United States v. Lynn, 592 F.3d 572 (2010)........................ 31
United States v. Mangual-Garcia, 505 F.3d 1
(1st Cir. 2007), cert. denied, 553 U.S. 1019 (2008) ........... 31
United States v. Marcus, 560 U.S. 258 (2010) .............. 14, 33
United States v. Miller, 634 F.3d 841 (5th Cir.),
cert. denied, 565 U.S. 976 (2011) ......................................... 7
United States v. Olano, 507 U.S. 725 (1993) ............. 5, 16, 17
United States v. Peltier, 505 F.3d 389
(5th Cir. 2007), cert. denied, 554 U.S. 921
(2008) ........................................................................ 21, 24, 32
United States v. Rangel, 697 F.3d 795
(9th Cir. 2012), cert. denied, 568 U.S. 1182 (2013)........... 31
United States v. Rice, 699 F.3d 1043
(8th Cir. 2012) ...................................................................... 31
United States v. Stitt, 139 S. Ct. 399 (2018) ........................ 33
United States v. Sweeting, 437 F.3d 1105
(11th Cir. 2006) ...................................................................... 7
VI
Cases—Continued:
Page
United States v. Tedford, 405 F.3d 1149
(10th Cir. 2005) ...................................................................... 7
United States v. Villafuerte, 502 F.3d 204
(2d Cir. 2007) ....................................................................... 31
United States v. Vonn, 535 U.S. 55 (2002) .............. 20, 28, 29
United States v. Vonner, 516 F.3d 382
(6th Cir.), cert. denied, 555 U.S. 816 (2008) ......... 23, 25, 30
United States v. Washington, 147 F.3d 490 (6th Cir.),
cert. denied, 525 U.S. 954 (1998) ......................................... 7
United States v. Whitelaw, 580 F.3d 256
(5th Cir. 2009) ................................................................ 11, 32
United States v. Wilson, 605 F.3d 985 (D.C. Cir.),
cert. denied, 562 U.S. 1116, and 562 U.S. 1117
(2010) .................................................................................... 31
United States v. Young, 470 U.S. 1 (1985) .......................... 16
Yakus v. United States, 321 U.S. 414 (1944) ....................... 16
Statutes, guidelines, and rules:
18 U.S.C. 2 ............................................................................ 2, 8
18 U.S.C. 3553 .................................................................... 9, 1a
18 U.S.C. 3553(a) ................................................3, 6, 21, 24, 1a
18 U.S.C. 3553(a)(2) ........................................................... 3, 1a
18 U.S.C. 3553(a)(2)(A) ..................................................... 6, 1a
18 U.S.C. 3553(c) ...................................................... 4, 6, 19, 6a
18 U.S.C. 3583(a) ..................................................................... 6
18 U.S.C. 3583(d) (2012 & Supp. V 2017) ...................... 6, 10a
18 U.S.C. 3583(e)(3) ..................................................... 6, 9, 14a
21 U.S.C. 841 ............................................................................ 2
21 U.S.C. 841(a)(1) ................................................................... 8
United States Sentencing Guidelines:
Ch. 7, Pt. A, intro. 3(b) ...................................................... 6
§§ 7B1.1-7B1.5 ............................................................. 7
VII
Guidelines and rules—Continued:
Page
§ 7B1.1(a)(1) ................................................................. 9
§ 7B1.3(f ) .............................................................. 11, 33
comment. (n.4) ...................................................... 33
§ 7B1.4(a) .......................................................... 9, 11, 33
Fed. R. Civ. P. 46 (1938) ....................................................... 26
Fed. R. Crim. P.:
Rule 32 .............................................................................. 19
Rule 32(i)(1)(A) ............................................................ 4, 19
Rule 32(i)(1)(C) ................................................................ 19
Rule 32(i)(3)(B) ................................................................ 19
Rule 51 ..................................................................... passim
Rule 51 advisory committee’s note
(1944 adoption) ........................................................... 26
Rule 51(a) ......................................................... 1, 13, 26, 27
Rule 51(a) (1944) .............................................................. 26
Rule 51(b) ................................................................ passim
Rule 52 ................................................... 2, 12, 14, 17, 21, 31
Rule 52(a) ........................................................................... 2
Rule 52(b) ................................................................ passim
Miscellaneous:
Bouvier’s Law Dictionary (1934) ........................................ 26
1 John Henry Wigmore, Evidence in Trials at
Common Law (3d ed. 1940) ............................................... 26
In the Supreme Court of the United States
No. 18-7739
GONZALO HOLGUIN-HERNANDEZ, PETITIONER
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
SUPPORTING VACATUR
OPINION BELOW
The opinion of the court of appeals (J.A. 1-3) is not
published in the Federal Reporter but is reprinted at
746 Fed. Appx. 403.
JURISDICTION
The judgment of the court of appeals was entered on
December 27, 2018. The petition for a writ of certiorari
was filed on January 22, 2019, and was granted on June 3,
2019. The jurisdiction of this Court rests on 28 U.S.C.
1254(1).
STATUTORY PROVISIONS AND RULES INVOLVED
Rule 51 of the Federal Rules of Criminal Procedure
provides:
(a) Exceptions Unnecessary. Exceptions to rulings or orders of the court are unnecessary.
(1)
2
(b) Preserving a Claim of Error. A party may preserve a claim of error by informing the court—when
the court ruling or order is made or sought—of the
action the party wishes the court to take, or the
party’s objection to the court’s action and the
grounds for that objection. If a party does not have
an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that
party. A ruling or order that admits or excludes evidence is governed by Federal Rule of Evidence 103.
Rule 52 of the Federal Rules of Criminal Procedure
provides:
(a) Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights
must be disregarded.
(b) Plain Error. A plain error that affects substantial rights may be considered even though it was
not brought to the court’s attention.
Relevant statutory provisions are reproduced in an
appendix to this brief. App., infra, 1a-17a.
STATEMENT
Following a guilty plea in the United States District
Court for the Western District of Texas, petitioner was
convicted of possessing marijuana with the intent to distribute it, in violation of 21 U.S.C. 841 and 18 U.S.C. 2.
J.A. 17-18. He was sentenced to 24 months of imprisonment, to be followed by two years of supervised release.
J.A. 19-20. The district court subsequently determined
that petitioner had violated the conditions of his supervised release, and it ordered a 12-month term of imprisonment. J.A. 5. The court of appeals affirmed. J.A. 1-3.
3
A. Legal Background
1. Imposition of a sentence
a. Under 18 U.S.C. 3553(a), a district court’s “overarching duty” in sentencing a defendant following a
criminal conviction is to impose a “ ‘sentence sufficient,
but not greater than necessary’ to comply with the sentencing purposes set forth in [18 U.S.C.] 3553(a)(2).”
Pepper v. United States, 562 U.S. 476, 491 (2011) (quoting 18 U.S.C. 3553(a)). Those purposes are “to reflect
the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense”;
“to afford adequate deterrence to criminal conduct”; “to
protect the public from further crimes of the defendant”; and “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”
18 U.S.C. 3553(a)(2).
Section 3553(a) also provides a list of additional,
more specific, factors that supplement those overall
purposes to inform the appropriate sentence. 18 U.S.C.
3553(a). Those factors include “the nature and circumstances of the offense and the history and characteristics of the defendant”; the range of sentences recommended by the Sentencing Guidelines promulgated by
the United States Sentencing Commission (Commission), along with any Commission policy statements; “the
need to avoid unwarranted sentence disparities among
[similarly situated] defendants”; and “the need to provide restitution to any victims of the offense.” Ibid.
A sentencing court is required to “consider all of the
§ 3553(a) factors” before imposing a sentence. Gall v.
United States, 552 U.S. 38, 49-50 (2007). At the sentencing hearing, the court must “verify that the defendant
and the defendant’s attorney have read and discussed
4
the presentence report” prepared by the Probation Office “and any addendum to the report,” Fed. R. Crim. P.
32(i)(1)(A), and “giv[e] both parties an opportunity to
argue for whatever sentence they deem appropriate,”
Gall, 552 U.S. at 49-50. In addition, Section 3553(c) requires the district court, “at the time of sentencing, [to]
state in open court the reasons for its imposition of the
particular sentence.” 18 U.S.C. 3553(c); see Rita v.
United States, 551 U.S. 338, 356 (2007).
b. Since this Court rendered the Guidelines advisory
in United States v. Booker, 543 U.S. 220 (2005), appellate review of a sentence has been “limited to determining whether [the sentence imposed is] ‘reasonable.’ ”
Gall, 552 U.S. at 46; see Booker, 543 U.S. at 260-262.
Reasonableness review has two components—one procedural and one substantive.
When reviewing a sentence for procedural reasonableness, a court of appeals “must * * * ensure that the
district court committed no significant procedural error.” Gall, 552 U.S. at 51. Procedural errors include
“failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Ibid.
When “consider[ing] the substantive reasonableness
of the sentence,” a court of appeals applies “an abuseof-discretion standard” to review the length of the sentence. Gall, 552 U.S. at 51. “If the sentence is within
the Guidelines range, the appellate court may, but is not
required to, apply a presumption of reasonableness.”
Ibid. (citing Rita, 551 U.S. at 347). If, instead, “the sentence is outside the Guidelines range, the court * * *
may consider the extent of the deviation, but must give
5
due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the
variance.” Ibid. “The fact that the appellate court
might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal
of the district court.” Ibid.
The Court in Booker emphasized that it “expect[ed]
reviewing courts” considering sentencing appeals “to
apply ordinary prudential doctrines” such as “whether
[an] issue was raised below and whether it fails the
‘plain-error’ test.” 543 U.S. at 268. Federal Rule of
Criminal Procedure 51(b) requires parties to “preserve
a claim of error by informing the court—when the court
ruling or order is made or sought—of the action the
party wishes the court to take, or the party’s objection
to the court’s action and the grounds for that objection.”
Fed. R. Crim. P. 51(b). And Federal Rule of Criminal
Procedure 52(b) provides that an error “not brought to
the [district] court’s attention” can “be considered” only
if it is a “plain error that affects substantial rights.”
Fed. R. Crim. P. 52(b); see United States v. Olano, 507
U.S. 725, 732-734 (1993). Since Booker, the Court has
specifically noted that when a defendant fails to object
to a district court’s guidelines calculation, “appellate review of the error is governed by Federal Rule of Criminal Procedure 52(b),” which calls for plain-error review. Molina-Martinez v. United States, 136 S. Ct.
1338, 1343 (2016) (guidelines error); see also RosalesMireles v. United States, 138 S. Ct. 1897, 1904-1905
(2018) (applying plain-error review to miscalculation of
guidelines range).
6
2. Revocation of supervised release
When a court “impos[es] a sentence to a term of imprisonment for a felony or a misdemeanor,” it “may include as a part of the sentence a requirement that the
defendant be placed on a term of supervised release after imprisonment.” 18 U.S.C. 3583(a). If it does so, the
court must specify release conditions, see 18 U.S.C.
3583(d) (2012 & Supp. V 2017), the violation of which
may result in revocation of supervised release and reimprisonment of the defendant, see 18 U.S.C. 3583(e)(3).
For example, a mandatory condition of any supervisedrelease term is that “the defendant not commit another
Federal, State, or local crime during the term of supervision.” 18 U.S.C. 3583(d) (2012 & Supp. V 2017). Reimprisonment for violating such a condition reflects the
defendant’s breach of the trust that was placed in him
by allowing him to serve part of his sentence in the community at large. See Johnson v. United States, 529 U.S.
694, 700-701 (2000); Sentencing Guidelines Ch. 7, Pt. A,
intro. 3(b).
A defendant who has completed the term of imprisonment specified in his sentence, and who is serving a
term of supervised release, may be subject to further
proceedings if a violation of the supervised-release conditions is alleged. Under Section 3583(e)(3), a district
court may “revoke a term of supervised release” if the
court “finds by a preponderance of the evidence that the
defendant violated a condition of supervised release.”
18 U.S.C. 3583(e)(3). In considering whether to revoke
supervised release and order reimprisonment, courts
must consider the same factors that govern the original
imposition of the sentence, see 18 U.S.C. 3553(a), except
for the need for the sentence to provide “just punishment,” 18 U.S.C. 3553(a)(2)(A); see 18 U.S.C. 3583(c).
7
The Commission has promulgated policy statements
covering revocation, which include the recommended
length of a term of reimprisonment. See Sentencing
Guidelines §§ 7B1.1-7B1.5.
Both before and after Booker, courts of appeals have
reviewed procedural and substantive challenges to district courts’ orders of reimprisonment for supervisedrelease violations. See, e.g., United States v. AvelloAlvarez, 430 F.3d 543, 545 (2d Cir. 2005); United States
v. Washington, 147 F.3d 490, 491 (6th Cir.), cert. denied,
525 U.S. 954 (1998). Before Booker, courts of appeals
applied a “plainly unreasonable” standard to substantive challenges to the length of a revocation term. See,
e.g., United States v. Huusko, 275 F.3d 600, 602 (7th
Cir. 2001); United States v. Gonzalez, 250 F.3d 923, 925
(5th Cir. 2001). After Booker, some courts of appeals
have continued to employ the “plainly unreasonable”
terminology, see, e.g., United States v. Miller, 634 F.3d
841, 843 (5th Cir.), cert. denied, 565 U.S. 976 (2011),
while others have relied on the “reasonableness” language from Booker, see, e.g., United States v. Fleming,
397 F.3d 95, 99 (2d Cir. 2005). Several courts of appeals
have observed, however, that the formulations do not
appear meaningfully different in practice. See, e.g.,
United States v. Sweeting, 437 F.3d 1105, 1106-1107
(11th Cir. 2006) (per curiam); United States v. Tedford,
405 F.3d 1159, 1161 (10th Cir. 2005); United States v.
Cotton, 399 F.3d 913, 916 (8th Cir. 2005).
B. Factual And Procedural Background
1. In January 2016, United States Border Patrol
agents encountered petitioner as he was traveling on
foot with a group near the U.S.-Mexico border. Presentence Investigation Report (PSR) ¶¶ 7-10. Petitioner
admitted to the agents that he was a citizen of Mexico
8
and that he was illegally present in the United States.
PSR ¶ 7. Petitioner later also admitted that he had illegally entered the United States in order to smuggle marijuana. PSR ¶¶ 9-10. A search of petitioner’s and his
companions’ backpacks revealed that they were carrying approximately 272 pounds of marijuana. PSR ¶ 7.
Following a guilty plea, petitioner was convicted of
possession of marijuana with the intent to distribute it,
in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. J.A.
17-18. The district court sentenced him to 24 months of
imprisonment, to be followed by two years of supervised
release. J.A. 19-20. Among other conditions of supervised release, the district court required that petitioner
“not commit another federal, state, or local crime”; that
he “not illegally reenter the United States” if removed
after his prison term; and that, if he were able to lawfully reenter the United States after being removed, he
“immediately report in person to the nearest U.S. Probation Office.” J.A. 21, 26. In October 2017, petitioner
completed his term of incarceration and began his term
of supervised release. J.A. 13. He was removed from
the United States at that time. See J.A. 14-15.
2. In November 2017, while petitioner was still on
supervised release, Border Patrol agents again arrested him, along with other suspects, for possessing
approximately 272 pounds of marijuana. J.A. 14; see
17-cr-354 Docket entry No. 1, at 2 (W.D. Tex. Nov. 17,
2017). Petitioner admitted that he had once again carried marijuana into the United States from Mexico.
17-cr-354 Docket entry No. 1, at 2 (W.D. Tex. Nov. 17,
2017).
A federal grand jury charged petitioner with a new
count of possession of marijuana with the intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2.
9
17-cr-354 Docket entry No. 22, at 1-2 (W.D. Tex. Dec. 12,
2017); see J.A. 14-15. Petitioner pleaded guilty to the new
drug-trafficking offense, and the district court sentenced
him to 60 months of imprisonment, to be followed by five
years of supervised release. 17-cr-354 Docket entry
No. 110, at 1-3 (W.D. Tex. Apr. 30, 2018).
3. While petitioner’s second prosecution was pending, the Probation Office filed a petition alleging that
petitioner had violated the conditions of the supervisedrelease term from his first conviction, both by committing the second drug-trafficking offense and by reentering the United State illegally or failing to report to the
Probation Office upon reentering the United States.
J.A. 13-15. After the conviction and sentencing for the
second offense, the district court convened a hearing to
consider whether petitioner’s supervised-release term
from his first conviction should be revoked. J.A. 6-12.
At the revocation hearing, petitioner admitted both
supervised-release violations, and the district court
found that the violations had occurred. J.A. 7-9. The
court then explained that the statutory maximum revocation term of imprisonment for those violations was
three years and that the applicable policy statement
from the Sentencing Commission recommended a revocation term of 12 to 18 months. J.A. 9; see 18 U.S.C.
3583(e)(3); Sentencing Guidelines § 7B1.1(a)(1) (classifying
petitioner’s violation as Grade A); Sentencing Guidelines
§ 7B1.4(a) (table of recommended ranges).
Counsel for petitioner contended that, because petitioner had already been sentenced to 60 months of imprisonment for the second drug-trafficking offense,
there “would be no reason under [Section] 3553 that an
additional consecutive sentence would get his attention
any better than five years does.” J.A. 10. She stated
10
that “[t]hese people routinely are very economically motivated”; that “sometimes perhaps they’re not strong
enough to be able to [say] no when they’re tapped to do
this kind of job”; and that, if petitioner “comes back,
he’s going to serve his life in prison.” Ibid. Petitioner’s
counsel thus requested that the district court “consider
no additional time or certainly less than the guidelines,”
particularly if the court ordered that petitioner’s revocation sentence run consecutively to the 60-month sentence for his November 2017 drug-trafficking offense.
Ibid.
The district court ultimately ordered a 12-month
revocation term, to run consecutively to the 60-month
sentence imposed for petitioner’s second drug-trafficking
conviction. J.A. 11. The court stated that it had “reviewed the policy statements contained in Chapter 7 of
the guidelines in determining the appropriate disposition of this matter in relation to the defendant’s violations of his conditions of release.” Ibid. And it explained that although it did not disagree with the argument made by petitioner’s counsel, it “believe[d] the underlying case, the original case means something and so
thus” justified the separate 12-month term for petitioner’s violation of his supervised-release conditions.
Ibid. The court also expressed “hope” that petitioner
would be “able to withstand the pressure next time and
not to do what you’ve done a few times now already.”
Ibid.
The district court asked whether petitioner’s counsel
had “[a]nything further,” and she responded that she
did not. J.A. 11. Petitioner did not object to the reasonableness of the revocation term, or otherwise ask the
court to reconsider that term, after the court ordered it.
Ibid.
11
4. The court of appeals affirmed in an unpublished
per curiam decision. J.A. 1-3. On appeal, petitioner argued that his 12-month revocation term was substantively unreasonable because it was “greater than necessary to effectuate the sentencing goals of 18 U.S.C.
§ 3553(a).” J.A. 2. The court of appeals took the view
that, because petitioner had “failed to raise his challenges in the district court, [its] review [wa]s for plain
error only,” and determined that petitioner could not
satisfy the plain-error standard. Ibid. (citing United
States v. Whitelaw, 580 F.3d 256, 259-260 (5th Cir.
2009)).
Specifically, the court of appeals found that petitioner had “failed to show that the imposition of the 12month total sentence constituted a clear or obvious error.” J.A. 2. The court observed that the 12-month
term fell “within the applicable advisory Guidelines policy statement ranges.” Ibid. (citing Sentencing Guidelines § 7B1.4(a)). The court further noted (ibid.) that
the district court’s decision to run the reimprisonment
term consecutively to petitioner’s term of imprisonment
for the second offense was consistent with Sentencing
Guidelines § 7B1.3(f ), which provides that “[a]ny term
of imprisonment imposed upon the revocation of * * *
supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving.”
SUMMARY OF THE ARGUMENT
The court of appeals erred in applying plain-error review to petitioner’s challenge to the substantive reasonableness of his term of imprisonment. A defendant’s request for a shorter term is sufficient to raise and preserve a substantive, although not a procedural, objection to a longer term.
12
A. The Federal Rules of Criminal Procedure specify
that in order to preserve a claim for appellate review, a
criminal defendant must “inform[] the court—when the
court ruling or order is made or sought—of the action
[he] wishes the court to take, or [his] objection to the
court’s action and the grounds for that objection.” Fed.
R. Crim. P. 51(b). A claim that is not preserved in that
manner is subject to review only for plain error. Fed.
R. Crim. P. 52(b). The Rules thus promote judicial efficiency by “induc[ing] the timely raising of claims and
objections” in the district court, which “can often correct or avoid [a] mistake” that a party identifies. Puckett v. United States, 556 U.S. 129, 134 (2009). They also
discourage gamesmanship by preventing a party from
“remaining silent about his objection and belatedly raising the error only if the case does not conclude in his
favor.” Ibid.
Rules 51 and 52 apply with the same force in the sentencing context as they do in other parts of a criminal
proceeding. As a result, a criminal defendant must specifically identify a claim of error at sentencing to
properly preserve that claim for appellate review. This
Court has made clear, for example, that plain-error review applies to unpreserved claims of procedural error
at sentencing. See United States v. Booker, 543 U.S.
220, 268 (2005); see, e.g., Molina-Martinez v. United
States, 136 S. Ct. 1338, 1343 (2016). For example, a defendant who disagrees with the district court’s calculation of the applicable Sentencing Guidelines range or
with the adequacy of the district court’s explanation for
the sentence must identify the asserted error at the
time that it is made. As the Rules contemplate, a specific contemporaneous objection is necessary to provide
13
the district court with “the opportunity to consider and
resolve” that objection. Puckett, 556 U.S. at 134.
B. A criminal defendant’s request for a shorter sentence does not in itself identify or preserve any procedural objections to the sentencing process. It does,
however, identify and preserve a general substantive
objection to the subsequent imposition of a longer sentence. It does so by putting the district court on notice
“of the action the [defendant] wishes the court to take,”
Fed. R. Crim. P. 51(b)—namely, agreeing with the defendant that the circumstances warrant a shorter sentence.
The additional preservation requirement applied by
the court of appeals—that a defendant also expressly
object to the reasonableness of a sentence after it is
imposed—finds no support in the text of Rule 51. Instead, it appears to conflate the error being asserted
(the district court’s substantive misapplication of the
relevant sentencing factors) with the appellate standard
of review for that error (reasonableness). Nothing in
Rule 51 requires that objecting parties recite the applicable appellate standard to preserve their claims for appeal. To the contrary, Rule 51 specifically provides that
“[e]xceptions” to unsatisfactory rulings are “unnecessary.” Fed. R. Crim. P. 51(a). A requirement that a
defendant repeat his dissatisfaction with a district
court’s sentence by reciting the appellate standard of
review would amount to precisely the sort of formalistic
and redundant “[e]xception[]” that the drafters of Rule
51 sought to avoid.
As a practical matter, too, a requirement that defendants object to a sentence as unreasonable after it is
imposed would have little value. A defendant who has
already advocated for a shorter sentence has presented
14
all of his arguments against a longer sentence to the district court, which has rejected them. Another objection
at that point would not serve the purposes of Rules 51
and 52. A pro forma reiteration of what the district
court already knows—that the defendant believed a
lower sentence was appropriate—does not enhance judicial efficiency. Nor does requiring such a rote objection discourage gamesmanship, because a defendant
has no incentive to withhold his sentencing arguments
until appeal.
C. The same principles govern the imposition of a
term of imprisonment upon revocation of supervised release. As a result, the court of appeals should have assessed the reasonableness of petitioner’s 12-month
term of imprisonment without applying plain-error review. And although petitioner’s 12-month term, at the
bottom of the range that the Sentencing Commission’s
policy statement recommends, should be affirmed even
without plain-error review, the court of appeals has not
yet applied the appropriate standard itself. Thus, consistent with its ordinary practice, this Court should vacate the decision below and remand the case to the court
of appeals so that it may consider petitioner’s claim under the correct standard of review in the first instance.
See, e.g., Tapia v. United States, 564 U.S. 319, 335
(2011); United States v. Marcus, 560 U.S. 258, 266-267
(2010).
15
ARGUMENT
A CRIMINAL DEFENDANT WHO ADVOCATED FOR A
SHORTER TERM OF IMPRISONMENT NEED NOT ALSO
OBJECT AFTER THE DISTRICT COURT’S RULING
TO PRESERVE A CLAIM THAT A LONGER TERM IS
SUBSTANTIVELY UNREASONABLE
Timely objections are central to the “focused, adversarial resolution” of sentencing disputes. Burns v.
United States, 501 U.S. 129, 137 (1991). If a criminal
defendant believes that a court has erred, the Federal
Rules of Criminal Procedure require him to preserve
his claim of error by taking one of two actions “when the
court ruling or order is made or sought”: (1) informing
the court of “the action the party wishes the court to
take”; or (2) “object[ing] to the court’s action” and
providing “the grounds for that objection.” Fed. R.
Crim. P. 51(b). A defendant who “fails to do so in a
timely manner” forfeits a claim of error and may obtain
relief from that error on appeal only by satisfying the
rigorous requirements of the plain-error standard of review under Federal Rule of Criminal Procedure 52(b).
Puckett v. United States, 556 U.S. 129, 134 (2009).
When a defendant unambiguously asks the district
court for a lower sentence, he puts the court on notice
of his objection to a higher one, and adequately preserves an appellate claim that renews such an objection.
And the Rules work the same way in the context of a
term of imprisonment that a court orders in conjunction
with revoking supervised release. The court of appeals
in this case thus incorrectly applied plain-error review
to petitioner’s appellate claim that his 12-month revocation term was substantively unreasonable. Although affirmance of the district court’s order would be war-
16
ranted under any standard, the proper course is to vacate and remand so that the court of appeals can apply
the correct standard in the first instance.
A. A Sentencing Claim That A Defendant Did Not
Specifically Identify To The District Court Is Subject To
Plain-Error Review On Appeal
1. This Court has found “[n]o procedural principle”
to be “more familiar” than the principle that “a right of
any * * * sort[] ‘may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the
right before a tribunal having jurisdiction to determine
it.’ ” United States v. Olano, 507 U.S. 725, 731 (1993)
(quoting Yakus v. United States, 321 U.S. 414, 444
(1944)). Rule 51(b) prescribes how parties may avoid
such a forfeiture in a criminal case, namely, “by informing the court—when the court ruling or order is made
or sought—of the action the party wishes the court to
take, or the party’s objection to the court’s action and
the grounds for that objection.” Fed. R. Crim. P. 51(b).
“Failure to abide by [Rule 51’s] contemporaneousobjection rule ordinarily precludes the raising on appeal
of the unpreserved claim of trial error.” Puckett, 556
U.S. at 135.
Rule 52(b), however, “tempers the blow of a rigid application of the contemporaneous-objection requirement,” United States v. Young, 470 U.S. 1, 15 (1985), by
providing “strictly circumscribed” authority for an appellate court “to remedy [an] error” that has not been
“properly preserved,” Puckett, 556 U.S. at 134. Rule
52(b) provides that “[a] plain error that affects substantial rights may be considered even though it was not
brought to the court’s attention.” Fed. R. Crim. P.
52(b). That standard allows a complaining party to obtain relief on a new claim by establishing (1) that the
17
district court committed an error; (2) that the error is
“clear” or “obvious” under the law at the time of review;
and (3) that the error “affect[ed] [the party’s] substantial rights.” Olano, 507 U.S. at 732-735 (citation omitted). If all three of those requirements are satisfied,
“the court of appeals has authority to order correction”
of the error, provided that the error “ ‘seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings.’ ” Id. at 735-736 (quoting United States v.
Atkinson, 297 U.S. 157, 160 (1936)) (brackets in original); see Rosales-Mireles v. United States, 138 S. Ct.
1897, 1911 (2018).
2. Rule 51’s contemporaneous-objection requirement, and Rule 52’s corresponding plain-error review,
reflect longstanding “considerations of fairness to the
court and to the parties and of the public interest in
bringing litigation to an end after fair opportunity has
been afforded to present all issues of law and fact,” barring “exceptional circumstances.” Atkinson, 297 U.S.
at 159-160. The two Rules strike a “careful balanc[e]”
between the “need to encourage all trial participants to
seek a fair and accurate trial the first time around” and
this Court’s “insistence that obvious injustice be promptly
redressed.” United States v. Frady, 456 U.S. 152, 163
(1982); see Puckett, 556 U.S. at 135.
The rigorous application of Rule 51’s contemporaneousobjection requirement and Rule 52’s plain-error standard serves important purposes related to the functioning of federal trial and appellate courts. First, those
Rules promote finality and judicial efficiency by “induc[ing] the timely raising of claims and objections” in
district court, “which gives the district court the opportunity to consider and resolve them” in the first instance. Puckett, 556 U.S. at 134. In particular, a district
18
court that has been alerted to a potential error can examine it with the benefit of direct participants and fresh
recollections and “can often correct or avoid the mistake
so that it cannot possibly affect the ultimate outcome.”
Ibid. Second, the Rules diminish opportunities and incentives for gamesmanship. As this Court has explained,
they “prevent[] a litigant from ‘sandbagging’ the court—
remaining silent about his objection and belatedly raising the error only if the case does not conclude in his
favor.” Ibid.
3. Those considerations, and the Rules themselves,
apply with full force in sentencing-related contexts.
For example, this Court has previously indicated that
plain-error review applies to unpreserved claims of procedural error at sentencing. In United States v. Booker,
543 U.S. 220 (2005), which rendered the Guidelines advisory and described the appropriate standard of appellate review in that regime, the Court observed that appellate courts should continue to apply “ordinary prudential doctrines,” such as “whether the issue was
raised below and whether it fails the ‘plain-error’ test.”
Id. at 268. Since Booker, the Court has specifically
noted that when a defendant fails to object to a district
court’s guidelines calculation, “appellate review of the
error is governed by Federal Rule of Criminal Procedure 52(b),” which requires plain-error review.
Molina-Martinez v. United States, 136 S. Ct. 1338, 1343
(2016); see Fed. R. Crim. P. 52(b); see also RosalesMireles, 138 S. Ct. at 1904-1905 (similarly applying plainerror review to miscalculation of guidelines range).
A defendant who allows a guidelines-calculation error to pass without objection has forfeited that objection, because he has neither “inform[ed] the court * * *
of the action [the defendant] wishes the court to take, or
19
[the defendant’s] objection to the court’s action and the
grounds for that objection.” Fed. R. Crim. P. 51(b). The
same is true of objections to other procedural errors.
This Court has likened “failing to calculate (or improperly calculating) the Guidelines range” to other “significant procedural error[s]” at sentencing, such as “treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51
(2007). Potential procedural errors also include violations of Federal Rule of Criminal Procedure 32, such as
failing to “verify that the defendant and the defendant’s
attorney have read and discussed the presentence report,” failing to “allow the parties’ attorneys to comment on the probation officer’s determinations and
other matters relating to an appropriate sentence,” and
failing to resolve any disputed portion of the presentence report affecting the court’s sentencing decision.
Fed. R. Crim. P. 32(i)(1)(A), (1)(C), and (3)(B).
Simply requesting a lower sentence does not sufficiently identify an asserted procedural error to the district court. Because such errors occur in the course of
the district court’s deliberations, they must be pointed
out at the time. Take, for example, an error in calculating the guidelines range. See 18 U.S.C. 3553(a)(4). Unless a defendant has already argued to the district court
that the court should apply a particular guidelines provision in a particular way, he may (and must) object to
a guidelines calculation after that calculation has been
made. Or take a district court’s failure to adequately
explain its chosen sentence. See 18 U.S.C. 3553(c).
Only after the district court has explained (or failed to
20
explain) the sentence that it ultimately decided to impose can the defendant object to the adequacy of that
explanation. In neither case would a generalized argument in favor of less imprisonment provide the district
court with “the opportunity to consider and resolve” the
specific claim of error, Puckett, 556 U.S. at 134.
Claims of guidelines errors, deficient sentencing explanations, and other procedural sentencing claims are
precisely the sort of errors that can be, and should be,
litigated in the district court in the first instance. See
United States v. Vonn, 535 U.S. 55, 72 (2002) (noting the
benefits of “concentrat[ing] * * * litigation in the trial
courts, where genuine mistakes can be corrected easily”). If such a procedural issue is brought to a district
court’s attention, the court will “often correct or avoid
the mistake” on its own, promoting judicial economy
through the more efficient resolution of sentencing disputes, Puckett, 556 U.S. at 134. In the above examples,
for instance, a district court that is informed of a potential error in its computation of the defendant’s guidelines range may correct any inadvertent mistake or
make any relevant factual findings. Similarly, a district
court that is alerted to the defendant’s view that its explanation was inadequate may well supplement that explanation. Indeed, even a court that believes its existing
explanation already suffices may choose to add more detail to satisfy an inquiring defendant or to obviate the
need for an appeal and potential remand.
B. A Specific Request For A Lower Sentence Can Satisfy
Rule 51’s Contemporaneous-Objection Requirement
Although a request for a lower sentence does not
preserve a defendant’s objection to any procedural error, it does generally preserve a substantive objection
to any higher sentence that he receives. The decision
21
below, which holds that a defendant preserves a
substantive-reasonableness claim only by expressly objecting to the reasonableness of a term of imprisonment
after it is ordered, see J.A. 2; see also United States v.
Peltier, 505 F.3d 389, 391-392 (5th Cir. 2007), cert. denied, 554 U.S. 921 (2008), cannot be squared with the
text or purposes of Rules 51 and 52.
1. Under Rule 51’s text, a defendant preserves a
substantive challenge to a sentence by arguing for a
different one
a. A defendant’s request for a lower sentence satisfies Rule 51’s requirement that he “preserve a claim of
error by informing the court—when the court ruling or
order is * * * sought—of the action the party wishes
the court to take.” Fed. R. Crim. P. 51(b). Put simply,
the point of a sentencing hearing is to obtain the court’s
ruling on a defendant’s sentence. And if the defendant
requests a specific sentence at that hearing, he plainly
wishes the court to impose that sentence.
Described more technically, the “action” that the defendant has “sought,” Fed. R. Crim. P. 51(b), is a different substantive evaluation of the circumstances as presented to the court. Under 18 U.S.C. 3553(a)’s “parsimony principle,” Dean v. United States, 137 S. Ct. 1170,
1175 (2017), district courts must impose sentences that
are “ ‘sufficient, but not greater than necessary’ to comply with the sentencing purposes set forth in [18 U.S.C.]
3553(a)(2),” Pepper v. United States, 562 U.S. 476, 491
(2011) (quoting 18 U.S.C. 3553(a)). A defendant who requests a specific sentence, or a sentence below a specific
threshold (for example, one below the guidelines range)
does not merely inform the court that the defendant
prefers the requested sentence. Instead, the request
22
also necessarily informs the court that, in the defendant’s view, any lengthier sentence would be “greater
than necessary.” By the same token, when the government requests a longer sentence or a sentence above a
specific threshold (for example, one above the guidelines range), it informs the court that, in the government’s view, any lesser term would not be “sufficient.”
See, e.g., United States v. Autery, 555 F.3d 864, 869-871
(9th Cir. 2009); United States v. Curry, 461 F.3d 452,
459 (4th Cir. 2006).
When either party challenges a sentence as substantively unreasonable on appeal, that challenge fundamentally asserts that “the District Judge abused his
discretion in determining that the § 3553(a) factors supported [the] sentence”—i.e., in applying the parsimony
principle. Gall, 552 U.S. at 56. A party that sought a
different sentence—and thereby informed the district
court of its view that the parsimony principle required
that sentence—has therefore done all that Rule 51 requires to preserve a claim that the district court’s actual
sentence reflects a misapprehension of the circumstances of the case. The text of Rule 52(b), which applies plain-error review only to those errors that were
“not brought to the court’s attention,” Fed. R. Crim. P.
52(b), confirms the point. As a matter of common sense,
a defendant who argues that the circumstances call for
a shorter sentence has “br[ought] to the court’s attention” a substantive error in deeming the circumstances
to warrant a longer one. Ibid.
As discussed above, such an argument does not preserve a procedural claim, which is an objection to the
evaluation process, rather than the result of that process. See pp. 18-20, supra. Nor does it preserve a claim
23
that the court’s sentence fails to account for circumstances that were never presented to the court in the
first place. A defendant who requests a lower sentence
but fails to raise a relevant circumstance in support of
that request (e.g., his efforts to rehabilitate since his
crime) has forfeited reliance on that circumstance for
purposes of appeal. He has neither sought his desired
“action” (a sentence that accounts for that circumstance) nor objected to the sentence on the proper
“ground[]” (that it does not take the unmentioned circumstance into account). Fed. R. Crim. P. 51(b); see
United States v. Vonner, 516 F.3d 382, 391-392 (6th
Cir.) (en banc), cert. denied, 555 U.S. 816 (2008). Nevertheless, he has preserved a basic objection that the
district court made an unreasonable substantive decision based on the facts and arguments before it.
b. The court of appeals’ inflexible requirement of a
specific objection to the “reasonableness” of a sentence
after it is imposed confuses the error being asserted (a
misevaluation of the circumstances) with the appellate
standard of review for that error (reasonableness). A
defendant who asks for a shorter sentence has not necessarily informed the district court that he believes the
sentence it ultimately imposed is unreasonably long.
But because substantive reasonableness is a standard
of review applied by appellate courts, not an independent directive to district courts, a defendant is not required to label a sentence “unreasonable” if he otherwise properly preserves an objection to the length of the
sentence.
In Booker, this Court invalidated the statutory provision rendering the Sentencing Guidelines mandatory
and excised the corresponding statutory standards of
appellate review. See 543 U.S. at 260. In place of those
24
standards, the Court prescribed “a practical standard
of review already familiar to appellate courts: review
for unreasonableness.” Id. at 261 (brackets, citation,
and internal quotation marks omitted); see id. at 260263 (describing appellate review under advisory Guidelines system). Booker accordingly made “pellucidly
clear” that reasonableness is the standard that “applies
to appellate review of sentencing decisions”—not the
standard that guides the district court’s initial sentencing determination. Gall, 552 U.S. at 46; see, e.g., Kimbrough v. United States, 552 U.S. 90, 90-91 (2007) (explaining that Booker “instructed that ‘reasonableness’
is the standard controlling appellate review of the sentences district courts impose”).
The court of appeals’ preservation requirement appears to rest on the misapprehension that, “[a]fter
Booker, ‘reasonableness’ has become both a substantive
standard to be applied by the district court and a standard of review to be applied on appeal in assessing a district court’s exercise of its sentencing discretion.” Peltier, 505 F.3d at 391 n.2 (emphasis added; citation omitted). That is incorrect. District courts are “charged in
the first instance with determining whether * * * a sentence is ‘sufficient, but not greater than necessary’ ” under Section 3553(a). Rosales-Mireles, 138 S. Ct. at 1910
(quoting 18 U.S.C. 3553(a)). And, as discussed, a defendant puts a sentencing court on notice of his disagreement with a sentencing court’s assessment of what
is sufficient or necessary by arguing for a lower sentence. See pp. 20-23, supra. Substantive reasonableness, in contrast, is the separate standard by which a
court of appeals assesses whether a district court’s
choice of a sentence falls within an acceptable range of
discretion. See Gall, 552 U.S. at 56 (observing that the
25
court of appeals was required to consider “whether the
sentence was reasonable—i.e., whether the District
Judge abused his discretion in determining that the
§ 3553(a) factors supported” it); Rita v. United States,
551 U.S. 338, 351 (2007) (explaining that “appellate ‘reasonableness’ review merely asks whether the trial court
abused its discretion”).
Once reasonableness is correctly understood as a
standard of appellate review, nothing in Rule 51 supports a requirement that objecting parties recite that
appellate standard to preserve their claim for appeal.
See, e.g., Vonner, 516 F.3d at 389 (“A litigant has no
duty to object to the ‘reasonableness’ of the length of a
sentence * * * during a sentencing hearing * * * because reasonableness is the standard of appellate review, not the standard a district court uses in imposing
a sentence.”). Litigants are ordinarily tasked with informing a district court that they disagree with a particular ruling, not that the ruling will also fail the applicable standard of appellate review. For example, a district court’s factual findings are generally reviewed on
appeal for clear error. See, e.g., Anderson v. City of
Bessemer City, 470 U.S. 564, 573 (1985). Yet no one
would contend that, to preserve a claim of factual error,
a litigant who requests a finding of fact must object when
the district court enters a contrary finding, to clarify that
the litigant believes the finding is not just wrong but also
clearly erroneous. The same is true with respect to
sentencing—a defendant need only disagree with the sentence itself, not specifically assert its unreasonableness.
c. The court of appeals’ inflexible preservation requirement also contravenes Rule 51 in an even more direct way. In practice, the requirement effectively ne-
26
cessitates that litigants take an “[e]xception[]” to an adverse ruling—which Rule 51 specifically instructs is
“unnecessary.” Fed. R. Crim. P. 51(a).
In evidence law, an “exception” is an announcement,
made “at the time of [an] unsatisfactory ruling,” that
counsel intends to “treat [the ruling] as an error for purposes of appeal.” 1 John Henry Wigmore, Evidence in
Trials at Common Law § 20, at 355 (3d ed. 1940) (emphasis omitted). Before the advent of stenographic reporting, English and American courts required parties
wishing to challenge a trial court’s ruling on a point of
law to take such an “exception” after the court’s ruling
and to prepare a written “bill of exceptions” setting
forth the disputed legal issue, the relevant facts, the
parties’ arguments, and the disposition. Ibid.; see Bouvier’s Law Dictionary 123 (1934); Poole v. Fleeger,
36 U.S. (11 Pet.) 185, 211 (1837). The exception requirement applied even when the party had objected before
the court’s ruling. 1 Wigmore § 20, at 355. That is because its primary purpose was to create, through the
written bill, a “record for the information of the court
having cognizance of the cause in error.” Bouvier’s Law
Dictionary 123; accord 1 Wigmore § 20, at 353.
But as stenographic recording became available in
the early twentieth century, it rendered the exception’s
record-preserving function obsolete, and many jurisdictions abandoned the practice. See 1 Wigmore at 355 &
n.4; see also Fed. R. Crim. P. 51 advisory committee’s
note (1944 adoption) (explaining that, by 1944, “[m]any
States ha[d] abolished the use of exceptions in criminal
and civil cases”). Consistent with that trend, the inaugural editions of the federal rules of procedure expressly abandoned the exception requirement. See
Fed. R. Crim. P. 51(a) (1944); Fed. R. Civ. P. 46 (1938)
27
(“Formal exceptions to rulings or orders of the court
are unnecessary.”).
By requiring an objection that repeats a party’s previously announced disagreement with the length of the
sentence imposed, the court of appeals effectively resurrected the archaic exception requirement that the
drafters of Rule 51 abandoned 75 years ago. Where the
record already reflects the defendant’s request and argument for a shorter sentence, the objection required
by the court of appeals here, like the exception practice,
does not convey any additional information that might
be necessary for an appeal. Instead, it primarily serves
to communicate that the defendant may challenge the
sentence imposed as substantively unreasonable on appeal. Under Rule 51, no need exists for such a formality.
2. Requiring a substantive-reasonableness objection
would not serve the purposes of the plain-error rule
The court of appeals’ requirement is also inconsistent with the purposes of Rules 51 and 52(b). First,
that requirement would not advance the interests of finality and efficiency, see Puckett, 556 U.S. at 134, because it would not notify the court of any potentially inadvertent errors or clarify any misunderstandings. For
most asserted errors, like procedural sentencingrelated claims, “the district court if apprised of the
claim will be in a position to adjudicate the matter in the
first instance, creating a factual record and facilitating
appellate review,” or even correcting the error “and
thus avoid[ing] the delay and expense of a full appeal.”
Id. at 140. That is not true of substantive challenges to
the district court’s selection of a particular sentence.
In the context of “a substantive reasonableness challenge” to a disputed sentence, “the parties have already
fully argued the relevant issues * * * and the court is
28
already apprised of the parties’ positions and what sentences the parties believe are appropriate.” Autery, 555
F.3d at 871. In those circumstances, “requiring the parties to restate their views after sentencing” would not
alert the district court to any error about which the
court has not been previously informed; it instead would
be “both redundant and futile.” Ibid.; see, e.g., Curry,
461 F.3d at 459; United States v. Castro-Juarez,
425 F.3d 430, 434 (7th Cir. 2005). As experience in the
Fifth Circuit illustrates, requiring such an objection
would simply lead defendants to assert, “I object to the
reasonableness of the sentence,” whenever a court imposes a sentence longer than they requested. See, e.g.,
D. Ct. Doc. 37, at 28, United States v. Ocampo-Mejia,
No. 06-cr-251 (N.D. Tex. Aug. 26, 2008) (defense counsel’s statement at end of sentencing hearing that, “just
in the event that Mr. Ocampo-Mejia chooses to appeal,
I would like to object to the sentence as unreasonable”);
D. Ct. Doc. 19, at 1, United States v. Key, No. 08-cr-123
(W.D. Tex. Dec. 10, 2008) (post-sentencing filing stating
that “upon the advice of * * * Defendant’s attorney,”
the “Defendant OBJECTS to the reasonableness of the
sentence in this case”). That would reveal nothing new
to the district court, and no reason exists to think that
such a formulaic objection would prompt any further
consideration by the district court.
Second, requiring a substantive-reasonableness objection would not mitigate any risk of gamesmanship,
see Puckett, 556 U.S. at 134. This Court has explained
that “the point of the plain-error rule” is that “the defendant who just sits there when a mistake can be fixed”
cannot “wait to see” whether he is satisfied with the
judgment and, if not, complain to the court of appeals.
Vonn, 535 U.S. at 73. But to properly preserve a
29
substantive-reasonableness claim, a defendant cannot
“just sit[] there,” ibid. Instead, he must request a lower
sentence in the district court and raise any relevant arguments in favor of that lower sentence. As a result, he
simply has no ability to “sandbag[]” the proceedings by
“remaining silent.” Puckett, 556 U.S. at 134.
Moreover, even assuming that a defendant had some
theoretical ability to hide the ball, he would have no apparent incentive to do so. An objection that labels a sentence as “unreasonable” would necessarily be offered at
the end of the criminal proceeding, after the district
court has imposed its sentence. At that point, the defendant already knows whether the case has “conclude[d] in his favor,” and a rational defendant would
have every incentive to object if it could do any good.
Puckett, 556 U.S. at 134; cf., e.g., id. at 140 (requiring
objection to breach of plea agreement in order to prevent
a defendant from “ ‘gam[ing]’ the system” by waiting to
receive his sentence and then “seeking a second bite at
the apple” if unsatisfied); Vonn, 535 U.S. at 73 (requiring
objection to guilty-plea colloquy to forestall the risk that
“a defendant could choose to say nothing about a judge’s
plain lapse * * * and wait to see if the sentence later
struck him as satisfactory”). The absence of an objection
in that situation reflects the objection’s pointlessness,
not any effort to game the system.
Rather than encouraging the healthy functioning of
the judicial system, adopting the court of appeals’ preservation rule would have multiple negative consequences.
If defendants (or prosecutors) remembered to reiterate
their challenges to the length of a sentence, they would
“saddle busy district courts with the burden of sitting
through an objection—probably formulaic—in every
criminal case.” Castro-Juarez, 425 F.3d at 434. If an
30
objection is raised, but is less than clear, it would require sentencing courts to waste time determining
whether a defendant is in fact raising a new argument
that the court should address or is merely reiterating
his disagreement with the already-disputed sentence
for preservation purposes. And if the objection requirement is overlooked, it would “create a trap for” the “unwary.” Id. at 433-434. Those costs may not be large, but
it makes little sense to impose them when no apparent
countervailing benefits exist.
3. Prevailing circuit practice reflects the proper approach
Given the text of the Rules, the policies behind plainerror review, and this Court’s precedents, it is unsurprising that most courts of appeals have coalesced
around the same approach to the preservation of sentencing errors. They recognize that although arguing
for a shorter sentence is insufficient to preserve a procedural challenge to the sentencing proceeding, it does
preserve a general substantive challenge to the length of
the sentence. The en banc Sixth Circuit, for example, has
emphasized a defendant’s “obligation to raise all arguments concerning the appropriate procedures at sentencing,” but has recognized that “counsel need not register a complaint with the district court that the proposed
sentence is ‘unreasonable.’ ” Vonner, 516 F.3d at 391.
The other courts of appeals largely agree. See, e.g.,
United States v. Flores-Mejia, 759 F.3d 253, 256-257 (3d
Cir. 2014) (en banc) (“While a substantive objection to
the sentence that a court will impose is noted when
made and need not be repeated after sentencing, a procedural objection is to the form that the sentencing procedure has taken.”); United States v. Lopez-Flores,
444 F.3d 1218, 1221 (10th Cir. 2006) (“Although * * * it
31
is unnecessary to argue to the district court after imposition of the sentence that the sentence is unreasonably
long, the usual reasons for requiring a contemporaneous objection apply to challenges to the district court’s
method of arriving at a sentence.”), cert. denied,
551 U.S. 1162 (2007); see also United States v. Rangel,
697 F.3d 795, 805 (9th Cir. 2012), cert. denied, 568 U.S.
1182 (2013); United States v. Rice, 699 F.3d 1043, 1049
(8th Cir. 2012); United States v. Corona-Gonzalez,
628 F.3d 336, 340 (7th Cir. 2010); United States v. Wilson, 605 F.3d 985, 1033-1034 (D.C. Cir.) (per curiam),
cert. denied, 562 U.S. 1116, and 562 U.S. 1117 (2010);
United States v. Mangual-Garcia, 505 F.3d 1, 15 (1st
Cir. 2007), cert. denied, 553 U.S. 1019 (2008); United
States v. Villafuerte, 502 F.3d 204, 211 (2d Cir. 2007).
The only outliers are the Fifth Circuit, which is alone
in its requirement that a defendant object to the substantive reasonableness of a just-pronounced sentence,
see J.A. 2, and the Fourth Circuit, which does not require a contemporaneous objection to preserve a claim
that the district court provided an inadequate explanation of its sentence, see United States v. Lynn, 592 F.3d
572, 578 (2010). For the reasons discussed above, neither of those idiosyncratic approaches is sound. This
Court can and should clarify that Rules 51 and 52 require preservation of claims of sentencing error, but
that a defendant’s claim that a sentence is unreasonably
long is sufficiently preserved by an argument for a
shorter one.
32
C. This Court Should Vacate The Judgment Below And
Remand The Case To The Court Of Appeals, Which
Should In Turn Affirm Petitioner’s Revocation Term
1. This case does not arise in the context of an initial
sentencing, but instead involves an order of reimprisonment following the revocation of petitioner’s supervised
release. Although the two types of proceedings and
judgments are not congruent in all respects, see
pp. 3-7, supra, none of the differences supports the
court of appeals’ application of plain-error review here.
At the revocation hearing, petitioner requested that
the district court order zero months of imprisonment,
or at least less than 12 months, citing his role in the offense and his punishment for a separate conviction. J.A.
9-10. In ordering a revocation term of 12 months of imprisonment, J.A. 11, the court necessarily rejected petitioner’s arguments and ruled against him. Yet the court
of appeals applied plain-error review, relying on its
unique approach to preservation in the context of initial
sentencings. See J.A. 2 (citing United States v. Whitelaw,
580 F.3d 256, 259-260 (5th Cir. 2009)); see also Whitelaw, 580 F.3d 259-260 (applying United States v. Peltier,
supra, to a revocation proceeding); Peltier, 505 F.3d at
391 (formulating objection rule in context of sentence
imposition). That approach is no more consistent with
the Rules, and makes no more sense, in the revocation
context than it does in the sentencing context.
2. As the government explained in its brief in opposition to certiorari (at 8-11), petitioner’s revocation term
should be affirmed even in the absence of plain-error
review. The consecutive 12-month term of imprisonment that the district court ordered in this case is at the
bottom of the 12-to-18-month range that the Commission’s policy statement recommends. See J.A. 9, 11; see
33
also Sentencing Guidelines § 7B1.4(a) (recommending
that “[a]ny term of imprisonment imposed upon the revocation of * * * supervised release shall be ordered to
be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the
sentence of imprisonment being served resulted from
the conduct that is the basis of the revocation of * * *
supervised release”); Sentencing Guidelines § 7B1.3(f );
Sentencing Guidelines § 7B1.3(f ), comment. (n.4). And
the revocation term appropriately accounts for petitioner’s breach of trust in committing his crime while on
supervised release. See United States v. Gonzalez,
250 F.3d 923, 929-931 (5th Cir. 2001); see also United
States v. Haymond, 139 S. Ct. 2369, 2379-2380 (2019)
(opinion of Gorsuch, J.) (explaining that “supervised release punishments arise from and are ‘treated as part of
the penalty for the initial offense’ ”) (brackets, citation,
and ellipses omitted).
Nevertheless, this is “a court of review, not of first
view,” United States v. Stitt, 139 S. Ct. 399, 407 (2018)
(citation omitted), and the court of appeals has not itself
considered petitioner’s challenge to the revocation term
under the correct standard. Thus, consistent with its
ordinary practice, this Court should vacate the court of
appeals’ decision and remand the case to the court of
appeals so that it may consider petitioner’s substantive
challenge to his revocation term under the correct
standard of review in the first instance. See, e.g., Tapia
v. United States, 564 U.S. 319, 335 (2011); United States
v. Marcus, 560 U.S. 258, 266-267 (2010).
34
CONCLUSION
The judgment of the court of appeals should be
vacated and the case remanded to that court for further
consideration of petitioner’s substantive challenge to
his 12-month revocation term.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
BRIAN A. BENCZKOWSKI
Assistant Attorney General
ERIC J. FEIGIN
MORGAN L. RATNER
Assistants to the Solicitor
General
FRANCESCO VALENTINI
Attorney
JULY 2019
APPENDIX
1.
18 U.S.C. 3553 provides:
Imposition of a sentence
(a) FACTORS TO BE CONSIDERED IN IMPOSING A
SENTENCE.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with
the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense
and the history and characteristics of the defendant;
(2)
the need for the sentence imposed—
(A) to reflect the seriousness of the offense,
to promote respect for the law, and to provide
just punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes
of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or
other correctional treatment in the most effective
manner;
(3)
the kinds of sentences available;
(4) the kinds of sentence and the sentencing
range established for—
(A) the applicable category of offense committed by the applicable category of defendant as
set forth in the guidelines—
(1a)
2a
(i) issued by the Sentencing Commission
pursuant to section 994(a)(1) of title 28, United
States Code, subject to any amendments made
to such guidelines by act of Congress (regardless of whether such amendments have yet to
be incorporated by the Sentencing Commission
into amendments issued under section 994(p)
of title 28); and
(ii) that, except as provided in section
3742(g), are in effect on the date the defendant
is sentenced; or
(B) in the case of a violation of probation or
supervised release, the applicable guidelines or
policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title
28, United States Code, taking into account any
amendments made to such guidelines or policy
statements by act of Congress (regardless of
whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);
(5)
any pertinent policy statement—
(A) issued by the Sentencing Commission
pursuant to section 994(a)(2) of title 28, United
States Code, subject to any amendments made to
such policy statement by act of Congress (regardless of whether such amendments have yet to be
incorporated by the Sentencing Commission into
amendments issued under section 994(p) of title
28); and
3a
(B) that, except as provided in section
3742(g), is in effect on the date the defendant is
sentenced. 1
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
(b) APPLICATION OF GUIDELINES IN IMPOSING A
SENTENCE.—
(1) IN GENERAL.—Except as provided in paragraph (2), the court shall impose a sentence of the
kind, and within the range, referred to in subsection
(a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to
a degree, not adequately taken into consideration by
the Sentencing Commission in formulating the
guidelines that should result in a sentence different
from that described. In determining whether a circumstance was adequately taken into consideration,
the court shall consider only the sentencing guidelines, policy statements, and official commentary of
the Sentencing Commission. In the absence of an
applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for
the purposes set forth in subsection (a)(2). In the
absence of an applicable sentencing guideline in the
case of an offense other than a petty offense, the
court shall also have due regard for the relationship
of the sentence imposed to sentences prescribed by
1
So in original.
The period probably should be a semicolon.
4a
guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the
Sentencing Commission.
(2)
CHILD CRIMES AND SEXUAL OFFENSES.—
(A) 2 SENTENCING.—In sentencing a defendant convicted of an offense under section 1201
involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A,
110, or 117, the court shall impose a sentence of
the kind, and within the range, referred to in
subsection (a)(4) unless—
(i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration
by the Sentencing Commission in formulating
the guidelines that should result in a sentence
greater than that described;
(ii) the court finds that there exists a mitigating circumstance of a kind or to a degree,
that—
(I) has been affirmatively and specifically identified as a permissible ground of
downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28, taking account of any
amendments to such sentencing guidelines
or policy statements by Congress;
2
So in original.
No subpar. (B) has been enacted.
5a
(II) has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and
(III) should result in a sentence different
from that described; or
(iii) the court finds, on motion of the Government, that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed
an offense and that this assistance established
a mitigating circumstance of a kind, or to a degree, not adequately taken into consideration
by the Sentencing Commission in formulating
the guidelines that should result in a sentence
lower than that described.
In determining whether a circumstance was adequately taken into consideration, the court shall
consider only the sentencing guidelines, policy
statements, and official commentary of the Sentencing Commission, together with any amendments
thereto by act of Congress. In the absence of an
applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for
the purposes set forth in subsection (a)(2). In the
absence of an applicable sentencing guideline in the
case of an offense other than a petty offense, the
court shall also have due regard for the relationship
of the sentence imposed to sentences prescribed by
guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the
Sentencing Commission, together with any amendments to such guidelines or policy statements by act
of Congress.
6a
(c) STATEMENT OF REASONS FOR IMPOSING A
SENTENCE.—The court, at the time of sentencing, shall
state in open court the reasons for its imposition of the
particular sentence, and, if the sentence—
(1) is of the kind, and within the range, described in subsection (a)(4), and that range exceeds
24 months, the reason for imposing a sentence at a
particular point within the range; or
(2) is not of the kind, or is outside the range,
described in subsection (a)(4), the specific reason for
the imposition of a sentence different from that described, which reasons must also be stated with
specificity in a statement of reasons form issued
under section 994(w)(1)(B) of title 28, except to the
extent that the court relies upon statements received in camera in accordance with Federal Rule of
Criminal Procedure 32. In the event that the court
relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32
the court shall state that such statements were so
received and that it relied upon the content of such
statements.
If the court does not order restitution, or orders only
partial restitution, the court shall include in the statement the reason therefor. The court shall provide a
transcription or other appropriate public record of the
court’s statement of reasons, together with the order of
judgment and commitment, to the Probation System
and to the Sentencing Commission,, 3 and, if the sentence includes a term of imprisonment, to the Bureau
of Prisons.
3
So in original.
7a
(d) PRESENTENCE PROCEDURE FOR AN ORDER OF
NOTICE.—Prior to imposing an order of notice pursuant to section 3555, the court shall give notice to the
defendant and the Government that it is considering
imposing such an order. Upon motion of the defendant or the Government, or on its own motion, the court
shall—
(1) permit the defendant and the Government
to submit affidavits and written memoranda addressing matters relevant to the imposition of such an
order;
(2) afford counsel an opportunity in open court
to address orally the appropriateness of the imposition of such an order; and
(3) include in its statement of reasons pursuant
to subsection (c) specific reasons underlying its determinations regarding the nature of such an order.
Upon motion of the defendant or the Government, or
on its own motion, the court may in its discretion employ any additional procedures that it concludes will
not unduly complicate or prolong the sentencing process.
(e) LIMITED AUTHORITY TO IMPOSE A SENTENCE
BELOW A STATUTORY MINIMUM.—Upon motion of the
Government, the court shall have the authority to impose a sentence below a level established by statute as
a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of
another person who has committed an offense. Such
sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing
8a
Commission pursuant to section 994 of title 28, United
States Code.
(f ) LIMITATION ON APPLICABILITY OF STATUTORY
MINIMUMS IN CERTAIN CASES.—Notwithstanding any
other provision of law, in the case of an offense under
section 401, 404, or 406 of the Controlled Substances
Act (21 U.S.C. 841, 844, 846), section 1010 or 1013 of
the Controlled Substances Import and Export Act
(21 U.S.C. 960, 963), or section 70503 or 70506 of title
46, the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing
Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court
finds at sentencing, after the Government has been
afforded the opportunity to make a recommendation,
that—
(1)
the defendant does not have—
(A) more than 4 criminal history points, excluding any criminal history points resulting from
a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined
under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other
dangerous weapon (or induce another participant to
do so) in connection with the offense;
(3) the offense did not result in death or serious
bodily injury to any person;
9a
(4) the defendant was not an organizer, leader,
manager, or supervisor of others in the offense, as
determined under the sentencing guidelines and was
not engaged in a continuing criminal enterprise, as
defined in section 408 of the Controlled Substances
Act; and
(5) not later than the time of the sentencing
hearing, the defendant has truthfully provided to
the Government all information and evidence the defendant has concerning the offense or offenses that
were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant
has no relevant or useful other information to provide or that the Government is already aware of the
information shall not preclude a determination by
the court that the defendant has complied with this
requirement.
Information disclosed by a defendant under this subsection may not be used to enhance the sentence of the
defendant unless the information relates to a violent
offense.
(g) DEFINITION OF VIOLENT OFFENSE.—As used
in this section, the term “violent offense” means a
crime of violence, as defined in section 16, that is punishable by imprisonment.
2.
18 U.S.C. 3583 (2012 & Supp. V 2017) provides:
Inclusion of a term of supervised release after imprisonment
(a) IN GENERAL.—The court, in imposing a sentence to a term of imprisonment for a felony or a mis-
10a
demeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of
supervised release after imprisonment, except that the
court shall include as a part of the sentence a requirement that the defendant be placed on a term of supervised release if such a term is required by statute or if
the defendant has been convicted for the first time of a
domestic violence crime as defined in section 3561(b).
(b) AUTHORIZED TERMS OF SUPERVISED RELEASE.
—Except as otherwise provided, the authorized terms
of supervised release are—
(1) for a Class A or Class B felony, not more
than five years;
(2) for a Class C or Class D felony, not more
than three years; and
(3) for a Class E felony, or for a misdemeanor
(other than a petty offense), not more than one year.
(c) FACTORS TO BE CONSIDERED IN INCLUDING A
TERM OF SUPERVISED RELEASE.—The court, in determining whether to include a term of supervised release, and, if a term of supervised release is to be included, in determining the length of the term and the
conditions of supervised release, shall consider the
factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).
(d) CONDITIONS OF SUPERVISED RELEASE.—The
court shall order, as an explicit condition of supervised
release, that the defendant not commit another Federal,
State, or local crime during the term of supervision,
that the defendant make restitution in accordance with
sections 3663 and 3663A, or any other statute authorizing a sentence of restitution, and that the defendant
11a
not unlawfully possess a controlled substance. The
court shall order as an explicit condition of supervised
release for a defendant convicted for the first time of a
domestic violence crime as defined in section 3561(b)
that the defendant attend a public, private, or private
nonprofit offender rehabilitation program that has been
approved by the court, in consultation with a State Coalition Against Domestic Violence or other appropriate
experts, if an approved program is readily available
within a 50-mile radius of the legal residence of the
defendant. The court shall order, as an explicit condition of supervised release for a person required to
register under the Sex Offender Registration and Notification Act, that the person comply with the requirements of that Act. The court shall order, as an
explicit condition of supervised release, that the defendant cooperate in the collection of a DNA sample
from the defendant, if the collection of such a sample is
authorized pursuant to section 3 of the DNA Analysis
Backlog Elimination Act of 2000. The court shall also
order, as an explicit condition of supervised release,
that the defendant refrain from any unlawful use of a
controlled substance and submit to a drug test within
15 days of release on supervised release and at least
2 periodic drug tests thereafter (as determined by
the court) for use of a controlled substance. The condition stated in the preceding sentence may be ameliorated or suspended by the court as provided in section
3563(a)(4). 1 The results of a drug test administered in
accordance with the preceding subsection shall be subject to confirmation only if the results are positive, the
defendant is subject to possible imprisonment for such
1
See References in Text note below.
12a
failure, and either the defendant denies the accuracy of
such test or there is some other reason to question the
results of the test. A drug test confirmation shall be a
urine drug test confirmed using gas chromatography/
mass spectrometry techniques or such test as the Director of the Administrative Office of the United States
Courts after consultation with the Secretary of Health
and Human Services may determine to be of equivalent
accuracy. The court shall consider whether the availability of appropriate substance abuse treatment programs, or an individual’s current or past participation
in such programs, warrants an exception in accordance
with United States Sentencing Commission guidelines
from the rule of section 3583(g) when considering any
action against a defendant who fails a drug test. The
court may order, as a further condition of supervised
release, to the extent that such condition—
(1) is reasonably related to the factors set forth
in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than
is reasonably necessary for the purposes set forth in
section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a);
any condition set forth as a discretionary condition of
probation in section 3563(b) and any other condition it
considers to be appropriate, provided, however that a
condition set forth in subsection 3563(b)(10) shall be
imposed only for a violation of a condition of supervised
release in accordance with section 3583(e)(2) and only
when facilities are available. If an alien defendant is
13a
subject to deportation, the court may provide, as a condition of supervised release, that he be deported and
remain outside the United States, and may order that
he be delivered to a duly authorized immigration official for such deportation. The court may order, as an
explicit condition of supervised release for a person
who is a felon and required to register under the Sex
Offender Registration and Notification Act, that the
person submit his person, and any property, house, residence, vehicle, papers, computer, other electronic communications or data storage devices or media, and effects to search at any time, with or without a warrant,
by any law enforcement or probation officer with reasonable suspicion concerning a violation of a condition
of supervised release or unlawful conduct by the person, and by any probation officer in the lawful discharge
of the officer’s supervision functions.
(e) MODIFICATION OF CONDITIONS OR REVOCATION.
—The court may, after considering the factors set forth
in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4),
(a)(5), (a)(6), and (a)(7)—
(1) terminate a term of supervised release and
discharge the defendant released at any time after
the expiration of one year of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by
the conduct of the defendant released and the interest of justice;
(2) extend a term of supervised release if less
than the maximum authorized term was previously
imposed, and may modify, reduce, or enlarge the conditions of supervised release, at any time prior to
14a
the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable
to the initial setting of the terms and conditions of
post-release supervision;
(3) revoke a term of supervised release, and require the defendant to serve in prison all or part of
the term of supervised release authorized by statute
for the offense that resulted in such term of supervised release without credit for time previously served
on postrelease supervision, if the court, pursuant to
the Federal Rules of Criminal Procedure applicable
to revocation of probation or supervised release,
finds by a preponderance of the evidence that the
defendant violated a condition of supervised release,
except that a defendant whose term is revoked under this paragraph may not be required to serve on
any such revocation more than 5 years in prison if
the offense that resulted in the term of supervised
release is a class A felony, more than 3 years in
prison if such offense is a class B felony, more than
2 years in prison if such offense is a class C or D
felony, or more than one year in any other case; or
(4) order the defendant to remain at his place of
residence during nonworking hours and, if the court
so directs, to have compliance monitored by telephone
or electronic signaling devices, except that an order
under this paragraph may be imposed only as an alternative to incarceration.
15a
(f ) WRITTEN STATEMENT OF CONDITIONS.—The
court shall direct that the probation officer provide the
defendant with a written statement that sets forth all
the conditions to which the term of supervised release
is subject, and that is sufficiently clear and specific to
serve as a guide for the defendant’s conduct and for
such supervision as is required.
(g) MANDATORY REVOCATION FOR POSSESSION
OF CONTROLLED SUBSTANCE OR FIREARM OR FOR
REFUSAL TO COMPLY WITH DRUG TESTING.—If the
defendant—
(1) possesses a controlled substance in violation
of the condition set forth in subsection (d);
(2) possesses a firearm, as such term is defined
in section 921 of this title, in violation of Federal
law, or otherwise violates a condition of supervised
release prohibiting the defendant from possessing a
firearm;
(3) refuses to comply with drug testing imposed
as a condition of supervised release; or
(4) as a part of drug testing, tests positive for
illegal controlled substances more than 3 times over
the course of 1 year;
the court shall revoke the term of supervised release
and require the defendant to serve a term of imprisonment not to exceed the maximum term of imprisonment authorized under subsection (e)(3).
(h) SUPERVISED RELEASE FOLLOWING REVOCATION.
—When a term of supervised release is revoked and
the defendant is required to serve a term of imprisonment, the court may include a requirement that the
16a
defendant be placed on a term of supervised release
after imprisonment. The length of such a term of
supervised release shall not exceed the term of supervised release authorized by statute for the offense that
resulted in the original term of supervised release, less
any term of imprisonment that was imposed upon revocation of supervised release.
(i) DELAYED REVOCATION.—The power of the
court to revoke a term of supervised release for violation of a condition of supervised release, and to order
the defendant to serve a term of imprisonment and,
subject to the limitations in subsection (h), a further
term of supervised release, extends beyond the expiration of the term of supervised release for any period
reasonably necessary for the adjudication of matters
arising before its expiration if, before its expiration, a
warrant or summons has been issued on the basis of an
allegation of such a violation.
( j) SUPERVISED RELEASE TERMS FOR TERRORISM
PREDICATES.—Notwithstanding subsection (b), the authorized term of supervised release for any offense listed
in section 2332b(g)(5)(B) is any term of years or life.
(k) Notwithstanding subsection (b), the authorized
term of supervised release for any offense under section 1201 involving a minor victim, and for any offense
under section 1591, 1594(c), 2241, 2242, 2243, 2244,
2245, 2250, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422,
2423, or 2425, is any term of years not less than 5, or
life. If a defendant required to register under the Sex
Offender Registration and Notification Act commits
any criminal offense under chapter 109A, 110, or 117,
or section 1201 or 1591, for which imprisonment for a
term longer than 1 year can be imposed, the court shall
17a
revoke the term of supervised release and require the
defendant to serve a term of imprisonment under subsection (e)(3) without regard to the exception contained
therein. Such term shall be not less than 5 years.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.