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SUPREME COURT OF THE UNITED STATES
_________________
No. 16–9493
_________________
FLORENCIO ROSALES-MIRELES, PETITIONER
v. UNITED STATES
on writ of certiorari to the united states
court of appeals for the fifth circuit
[June 18, 2018]
Justice Sotomayor delivered the opinion of the
Court.
Federal Rule of Criminal Procedure 52(b)
provides that a court of appeals may consider errors that are plain
and affect substantial rights, even though they are raised for the
first time on appeal. This case concerns the bounds of that
discretion, and whether a miscalculation of the United States
Sentencing Guidelines range, that has been determined to be plain
and to affect a defendant’s substantial rights, calls for a court
of appeals to exercise its discretion under Rule 52(b) to vacate
the defendant’s sentence. The Court holds that such an error will
in the ordinary case, as here, seriously affect the fairness,
integrity, or public reputation of judicial proceedings, and thus
will warrant relief.
I
A
Each year, thousands of individuals are
sentenced to terms of imprisonment for violations of federal law.
District courts must determine in each case what constitutes a
sentence that is “sufficient, but not greater than necessary,” 18
U. S. C. §3553(a), to achieve the overarching sentencing
purposes of “retribution, deterrence, incapacitation, and
rehabilitation.”
Tapia v.
United States, 564
U. S. 319, 325 (2011); 18 U. S. C. §§3551(a),
3553(a)(2). Those decisions call for the district court to exercise
discretion. Yet, to ensure “ ‘certainty and fairness’ ”
in sentencing, district courts must operate within the framework
established by Congress.
United States v.
Booker, 543
U. S. 220, 264 (2005) (quoting 28 U. S. C.
§991(b)(1)(B)).
The Sentencing Guidelines serve an important
role in that framework. “ ‘[D]istrict courts
must begin
their analysis with the Guidelines and remain cognizant of them
throughout the sentencing process.’ ”
Peugh v.
United States, 569 U. S. 530, 541 (2013) (quoting
Gall v.
United States, 552 U. S. 38, 50,
n. 6 (2007); emphasis in original). Courts are not bound by
the Guidelines, but even in an advisory capacity the Guidelines
serve as “a meaningful benchmark” in the initial determination of a
sentence and “through the process of appellate review.” 569
U. S., at 541.
Of course, to consult the applicable Guidelines
range, a district court must first determine what that range is.
This can be a “complex” undertaking.
Molina-Martinez v.
United States, 578 U. S. ___, ___ (2016) (slip op., at
4). The United States Probation Office, operating as an arm of the
district court, first creates a presentence investigation report,
“which includes a calculation of the advisory Guidelines range it
considers to be applicable
.” Id., at ___ (slip op.,
at 3); see Fed. Rules Crim. Proc. 32(c)(1)(A), (d)(1); United
States Sentencing Commission, Guidelines Manual §1B1.1(a) (Nov.
2016) (USSG). That calculation derives from an assessment of the
“offense characteristics, offender characteristics, and other
matters that might be relevant to the sentence.”
Rita v.
United States,
551 U.S.
338, 342 (2007) (internal quotation marks omitted).
Specifically, an offense level is calculated by identifying a base
level for the offense of conviction and adjusting that level to
account for circumstances specific to the defendant’s case, such as
how the crime was committed and whether the defendant accepted
responsibility. See USSG §§1B1.1(a)(1)–(5). A numerical value is
then attributed to any prior offenses committed by the defendant,
which are added together to generate a criminal history score that
places the defendant within a particular criminal history category.
§§1B1.1(a)(6), 4A1.1. Together, the offense level and the criminal
history category identify the applicable Guidelines range.
§1B1.1(a)(7).
B
The district court has the ultimate
responsibility to ensure that the Guidelines range it considers is
correct, and the “[f]ailure to calculate the correct Guidelines
range constitutes procedural error.”
Peugh, 569 U. S.,
at 537. Given the complexity of the calculation, however, district
courts sometimes make mistakes. It is unsurprising, then, that
“there will be instances when a district court’s sentencing of a
defendant within the framework of an incorrect Guidelines range
goes unnoticed” by the parties as well, which may result in a
defendant raising the error for the first time on appeal.
Molina-Martinez, 578 U. S., at ___ (slip op., at 4).
Those defendants are not entirely without recourse.
Federal Rule of Criminal Procedure 52(b)
provides that “[a] plain error that affects substantial rights may
be considered even though it was not brought to the [district]
court’s attention.” In
United States v.
Olano, 507
U. S. 725 (1993), the Court established three conditions that
must be met before a court may consider exercising its discretion
to correct the error. “First, there must be an error that has not
been intentionally relinquished or abandoned. Second, the error
must be plain—that is to say, clear or obvious. Third, the error
must have affected the defendant’s substantial rights.”
Molina-Martinez, 578 U. S., at ___ (slip op., at 4)
(citations omitted). To satisfy this third condition, the defendant
ordinarily must “ ‘show a reasonable probability that, but for
the error,’ the outcome of the proceeding would have been
different.”
Ibid. (quoting
United States v.
Dominguez Benitez, 542 U. S. 74, 76, 82 (2004)). Once
those three conditions have been met, “the court of appeals should
exercise its discretion to correct the forfeited error if the error
seriously affects the fairness, integrity or public reputation of
judicial proceedings.”
Molina-Martinez, 578 U. S., at
___ (slip op., at 4–5) (internal quotation marks omitted). It is
this last consideration, often called
Olano’s fourth prong,
that we are asked to clarify and apply in this case.
C
Petitioner Florencio Rosales-Mireles pleaded
guilty to illegal reentry in violation of 8 U. S. C.
§§1326(a), (b)(2). The Probation Office in its presentence
investigation report mistakenly counted a 2009 state conviction of
misdemeanor assault twice. This double counting resulted in a
criminal history score of 13, which placed Rosales-Mireles in
criminal history category VI. Combined with his offense level of
21, that yielded a Guidelines range of 77 to 96 months. Had the
criminal history score been calculated correctly, Rosales-Mireles
would have been in criminal history category V, and the resulting
Guidelines range would have been 70 to 87 months. See USSG ch. 5,
pt. A (sentencing table).
Rosales-Mireles did not object to the
double-counting error before the District Court. Relying on the
erroneous presentence investigation report, and after denying
Rosales-Mireles’ request for a downward departure, the District
Court sentenced Rosales-Mireles to 78 months of imprisonment, one
month above the lower end of the Guidelines range that everyone
thought applied.
On appeal, Rosales-Mireles argued for the first
time that his criminal history score and the resulting Guidelines
range were incorrect because of the double counting of his 2009
conviction. Because he had not objected in the District Court, the
Court of Appeals for the Fifth Circuit reviewed for plain error.
850 F. 3d 246, 248 (2017).
Applying the
Olano framework, the Fifth
Circuit concluded that Rosales-Mireles had established that the
Guidelines miscalculation constituted an error that was plain,
satisfying
Olano’s first two conditions. It also held that
the error affected Rosales-Mireles’ substantial rights, thus
satisfying the third condition, because there was “a reasonable
probability that he would have been subject to a different sentence
but for the error.” 850 F. 3d, at 249. In reaching that
conclusion, the Fifth Circuit rejected the Government’s argument
that Rosales-Mireles would have received the same sentence
regardless of the Guidelines error, because the District Court had
denied a downward departure “based, in part, on Rosales-Mireles’
criminal history,” which “erroneously included an extra
conviction.”
Ibid.
The Fifth Circuit nevertheless declined to
exercise its discretion to vacate and remand the case for
resentencing because it concluded that Rosales-Mireles failed to
establish that the error would seriously affect the fairness,
integrity, or public reputation of judicial proceedings. In its
view, “the types of errors that warrant reversal are ones that
would shock the conscience of the common man, serve as a powerful
indictment against our system of justice, or seriously call into
question the competence or integrity of the district judge.”
Id., at 250 (internal quotation marks and alterations
omitted). Because Rosales-Mireles’ sentence of 78 months fell
within the correct range of 70 to 87 months, the Fifth Circuit held
that neither the error nor the resulting sentence “would shock the
conscience.”
Ibid.
The Fifth Circuit’s articulation of
Olano’s fourth prong is out of step with the practice of
other Circuits.[
1] We granted
certiorari to resolve that conflict, 582 U. S. ___ (2017), and
now reverse.
II
A
Although “Rule 52(b) is permissive, not
mandatory,”
Olano, 507 U. S., at 735, it is well
established that courts “should” correct a forfeited plain error
that affects substantial rights “if the error ‘seriously affects
the fairness, integrity or public reputation of judicial
proceedings.’ ”
Id., at 736 (quoting
United
States v.
Atkinson, 297 U. S. 157, 160 (1936);
alteration omitted); see also
Molina-Martinez, 578
U. S., at ___–___ (slip op., at 4–5). The Court in
Olano rejected a narrower rule that would have called for
relief only “ ‘in those circumstances in which a miscarriage
of justice would otherwise result,’ ” that is to say, where a
defendant is actually innocent. 507 U. S., at 736 (quoting
United States v.
Young, 470 U. S. 1, 15 (1985)).
By focusing instead on principles of fairness, integrity, and
public reputation, the Court recognized a broader category of
errors that warrant correction on plain-error review. See 507
U. S., at 736–737.
Like the miscarriage-of-justice rule that the
Court rejected in
Olano, the Fifth Circuit’s standard is
unduly restrictive. To be sure, a conclusion that an error
“shock[s] the conscience of the common man, serve[s] as a powerful
indictment against our system of justice, or seriously call[s] into
question the competence or integrity of the district judge,” 850
F. 3d, at 250 (internal quotation marks omitted), would demand
an exercise of discretion to correct the error. Limiting relief
only to those circumstances, however, too narrowly confines the
extent of a court of appeals’ discretion.
The “shock the conscience” standard typically is
employed when determining whether governmental action violates due
process rights under the Fifth and Fourteenth Amendments. See
County of Sacramento v.
Lewis, 523 U. S. 833,
847, n. 8 (1998) (“[I]n a due process challenge to executive
action, the threshold question is whether the behavior of the
governmental officer is so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience”). This Court
has said that the “shock the conscience” standard is satisfied
where the conduct was “intended to injure in some way unjustifiable
by any government interest,” or in some circumstances if it
resulted from deliberate indifference.
Id., at 849–850.
That standard is not reflected in Rule 52(b)
itself, nor in how this Court has applied the plain-error doctrine.
The Court repeatedly has reversed judgments for plain error on the
basis of inadvertent or unintentional errors of the court or the
parties below. See,
e.g., Silber v.
United
States, 370 U. S. 717, 717–718 (1962) (
per curiam)
(reversing judgment for plain error as a result of insufficient
indictment);
Brasfield v.
United States, 272
U. S. 448, 449–450 (1926) (reversing judgment for plain error
where the trial judge improperly inquired of a jury’s numerical
division);
Clyatt v.
United States, 197 U. S.
207, 222 (1905) (reversing judgment for plain error where the
Government presented insufficient evidence to sustain conviction).
The Court also “routinely remands” cases involving inadvertent or
unintentional errors, including sentencing errors, for
consideration of
Olano’s fourth prong with the understanding
that such errors may qualify for relief.
Hicks v.
United
States, 582 U. S. ___, ___ (2017) (Gorsuch, J.,
concurring) (slip op., at 2).
The Fifth Circuit’s additional focus on errors
that “serve as a powerful indictment against our system of justice,
or seriously call into question the competence or integrity of the
district judge,” 850 F. 3d, at 250 (internal quotation marks
omitted), similarly alters the Rule 52(b) standard. The Court has
never said that errors must amount to a “powerful indictment” of
the system, a phrase which implies by its terms that the only
errors worthy of correction are those that rise to the level of
grossly serious misconduct. Similarly, the Fifth Circuit’s emphasis
on the “competence or integrity of the district judge” narrows
Olano’s instruction that an error should be corrected if it
seriously affects “judicial proceedings.” In articulating such a
high standard, the Fifth Circuit substantially changed
Olano’s fourth prong.
B
The effect of the Fifth Circuit’s heightened
standard is especially pronounced in a case like this one. A plain
Guidelines error that affects a defendant’s substantial rights is
precisely the type of error that ordinarily warrants relief under
Rule 52(b).
In
Molina-Martinez, the Court recognized
that “[w]hen a defendant is sentenced under an incorrect Guidelines
range—whether or not the defendant’s ultimate sentence falls within
the correct range—the error itself can, and most often will, be
sufficient to show a reasonable probability of a different outcome
absent the error.” 578 U. S., at ___ (slip op., at 9). In
other words, an error resulting in a higher range than the
Guidelines provide usually establishes a reasonable probability
that a defendant will serve a prison sentence that is more than
“necessary” to fulfill the purposes of incarceration. 18
U. S. C. §3553(a);
Tapia, 564 U. S., at 325.
“To a prisoner,” this prospect of additional “time behind bars is
not some theoretical or mathematical concept.”
Barber v.
Thomas, 560 U. S. 474, 504 (2010) (Kennedy, J.,
dissenting). “[A]ny amount of actual jail time” is significant,
Glover v.
United States, 531 U. S. 198, 203
(2001), and “ha[s] exceptionally severe consequences for the
incarcerated individual [and] for society which bears the direct
and indirect costs of incarceration,”
United States v.
Jenkins, 854 F. 3d 181, 192 (CA2 2017). The possibility
of additional jail time thus warrants serious consideration in a
determination whether to exercise discretion under Rule 52(b). It
is crucial in maintaining public perception of fairness and
integrity in the justice system that courts exhibit regard for
fundamental rights and respect for prisoners “as people.” T. Tyler,
Why People Obey the Law 164 (2006).
The risk of unnecessary deprivation of liberty
par- ticularly undermines the fairness, integrity, or public rep-
utation of judicial proceedings in the context of a plain
Guidelines error because of the role the district court plays in
calculating the range and the relative ease of correcting the
error. Unlike “case[s] where trial strategies, in retrospect, might
be criticized for leading to a harsher sentence,” Guidelines
miscalculations ultimately result from judicial error.
Glover, 531 U. S., at 204; see also
Peugh, 569
U. S., at 537. That was especially so here where the District
Court’s error in imposing Rosales-Mireles’ sentence was based on a
mistake made in the presentence investigation report by the
Probation Office, which works on behalf of the District Court.
Moreover, “a remand for resentencing, while not costless, does not
invoke the same difficulties as a remand for retrial does.”
Molina-Martinez, 578 U. S., at ___ (slip op., at 15)
(internal quotation marks omitted). “A resentencing is a brief
event, normally taking less than a day and requiring the attendance
of only the defendant, counsel, and court personnel.”
United
States v.
Williams, 399 F. 3d 450, 456 (CA2
2005).
Ensuring the accuracy of Guidelines
determinations also serves the purpose of “providing certainty and
fairness in sentencing” on a greater scale. 28 U. S. C.
§994(f); see also §991(b)(1)(B);
Booker, 543 U. S., at
264. The Guidelines assist federal courts across the country in
achieving uniformity and proportionality in sentencing. See
Rita, 551 U. S., at 349. To realize those goals, it is
important that sentencing proceedings actually reflect the nature
of the offense and criminal history of the defendant, because the
United States Sentencing Commission relies on data developed during
sentencing proceedings, including information in the presentence
investigation report, to determine whether revisions to the
Guidelines are necessary. See
id., at 350. When sentences
based on incorrect Guidelines ranges go uncorrected, the
Commission’s ability to make appropriate amendments is
undermined.[
2]
In broad strokes, the public legitimacy of our
justice system relies on procedures that are “neutral, accurate,
consistent, trustworthy, and fair,” and that “provide opportunities
for error correction.” Bowers & Robinson, Perceptions of
Fairness and Justice: The Shared Aims and Occasional Conflicts of
Legitimacy and Moral Credibility, 47 Wake Forest L. Rev. 211,
215–216 (2012). In considering claims like Rosales-Mireles’, then,
“what reasonable citizen wouldn’t bear a rightly diminished view of
the judicial process and its integrity if courts refused to correct
obvious errors of their own devise that threaten to require
individuals to linger longer in federal prison than the law
demands?”
United States v.
Sabillon-Umana, 772
F. 3d 1328, 1333–1334 (CA10 2014) (Gorsuch, J.). In the
context of a plain Guidelines error that affects substantial
rights, that diminished view of the proceedings ordinarily will
satisfy
Olano’s fourth prong, as it does in this
case.[
3] As the Fifth Circuit
itself concluded, there is a reasonable probability that, without
correction of the Guidelines error, Rosales-Mireles will spend more
time in prison than the District Court otherwise would have
considered necessary. 850 F. 3d, at 249. That error was based
on a mistake by the Probation Office, a mistake that can be
remedied through a relatively inexpensive resentencing
proceeding.
Of course, any exercise of discretion at the
fourth prong of
Olano inherently requires “a case-specific
and fact-intensive” inquiry.
Puckett v.
United
States, 556 U. S. 129, 142 (2009); see also
Young,
470 U. S., at 16–17, n. 14. There may be instances where
countervailing factors satisfy the court of appeals that the
fairness, integrity, and public reputation of the proceedings will
be preserved absent correction. But on the facts of this case,
there are no such factors.[
4]
III
The United States and the dissent agree with
Rosales-Mireles that the Fifth Circuit’s formulation of the
standard for the exercise of discretion under Rule 52(b) “is an
inaccurate description” of
Olano’s fourth prong. Brief for
United States 34;
post, at 1, n. 1 (opinion of Thomas,
J.) (“[T]he Fifth Circuit’s standard is higher than the one
articulated in this Court’s precedents”). They nevertheless
maintain that Rosales-Mireles is not entitled to relief. We are
unpersuaded, though a few points merit brief discussion.
First, the United States and the dissent caution
that a grant of relief in Rosales-Mireles’ case and in others like
his would be inconsistent with the Court’s statements that
discretion under Rule 52(b) should be exercised “sparingly,”
Jones v.
United States, 527 U. S. 373, 389
(1999), and reserved for “exceptional circumstances,”
Atkinson, 297 U. S., at 160. As an initial matter,
Jones and the cases it relies on for the point that
discretion should be exercised “sparingly” would have required
additional jury proceedings on remand, either at resentencing or
retrial. See 527 U. S., at 384, 389; see also
Young,
470 U. S. 1;
United States v.
Frady, 456
U. S. 152 (1982);
Henderson v.
Kibbe, 431
U. S. 145 (1977). As we have explained, a decision remanding a
case to the district court for resentencing on the basis of a
Guidelines miscalculation is far less burdensome than a retrial, or
other jury proceedings, and thus does not demand such a high degree
of caution.
In any event, the circumstances surrounding
Rosales-Mireles’ case are exceptional within the meaning of the
Court’s precedent on plain-error review, as they are reasonably
likely to have resulted in a longer prison sentence than necessary
and there are no countervailing factors that otherwise further the
fairness, integrity, or public reputation of judicial proceedings.
The fact that, as a result of the Court’s holding, most defendants
in Rosales-Mireles’ situation will be eligible for relief under
Rule 52(b) does not justify a decision that ignores the harmful
effects of allowing the error to persist.
Second, the United States and the dissent assert
that, because Rosales-Mireles’ sentence falls within the cor-
rected Guidelines range, the sentence is presumptively rea- sonable
and “less likely to indicate a serious injury to the fairness,
integrity, or public reputation of judicial proceedings.” Brief for
United States 20–21; see also
post, at 10. A substantive
reasonableness determination, however, is an entirely separate
inquiry from whether an error warrants correction under plain-error
review.
Before a court of appeals can consider the
substantive reasonableness of a sentence, “[i]t must first ensure
that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the
Guidelines range.”
Gall, 552 U. S., at 51. This makes
eminent sense, for the district court is charged in the first
instance with determining whether, taking all sentencing factors
into consideration, including the correct Guidelines range, a
sentence is “sufficient, but not greater than necessary.” 18
U. S. C. §3553(a). If the district court is unable
properly to undertake that inquiry because of an error in the
Guidelines range, the resulting sentence no longer bears the
reliability that would support a “presumption of reasonableness” on
review. See
Gall, 552 U. S., at 51. Likewise,
regardless of its ultimate reason- ableness, a sentence that lacks
reliability because of unjust procedures may well undermine public
perception of the proceedings. See Hollander-Blumoff, The
Psychology of Procedural Justice in the Federal Courts, 63 Hastings
L. J. 127, 132–134 (2011) (compilation of psychology research
showing that the fairness of procedures influences perceptions of
outcomes). The mere fact that Rosales-Mireles’ sentence falls
within the corrected Guidelines range does not preserve the
fairness, integrity, or public reputation of the
proceedings.[
5]
Third, the United States and the dissent contend
that our decision “creates the very opportunity for ‘sandbagging’
that Rule 52(b) is supposed to prevent.”
Post, at 5; Brief
for United States 17–18, 27. But that concern fails to account for
the realities at play in sentencing proceedings. As this Court
repeatedly has explained, “the Guidelines are ‘the starting point
for every sentencing calculation in the federal system,’ ”
Hughes v.
United States, 584 U. S. ___, ___
(2018) (slip op., at 9) (quoting
Peugh, 569 U. S., at
542). It is hard to imagine that defense counsel would
“deliberately forgo objection
now” to a plain Guidelines
error that would subject her client to a higher Guidelines range,
“because [counsel] perceives some slightly expanded chance to argue
for ‘plain error’
later.”
Henderson v.
United
States, 568 U. S. 266, 276 (2013) (emphasis in original).
Even setting aside the conflict such a strat- egy would create with
defense counsel’s ethical obligations to represent her client
vigorously and her duty of candor toward the court, any benefit
from such a strategy is highly speculative. There is no guarantee
that a court of appeals would agree to a remand, and no basis to
believe that a district court would impose a lower sentence upon
resentencing than the court would have imposed at the original
sentencing proceedings had it been aware of the plain Guidelines
error.
IV
For the foregoing reasons, we conclude that
the Fifth Circuit abused its discretion in applying an unduly
burdensome articulation of
Olano’s fourth prong and
declining to remand Rosales-Mireles’ case for resentencing. In the
ordinary case, as here, the failure to correct a plain Guidelines
error that affects a defendant’s substantial rights will seriously
affect the fairness, integrity, and public reputation of judicial
proceedings. The judgment of the Court of Appeals is therefore
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
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