Wednesday, November 13, 2019

Can factual errors constitute plain error on appeal?


As we noted last week, the Tenth Circuit recently reminded us in United States v. Carter that it will not “typically” review a factual error at sentencing if that error was not raised first in the district court. The Court explained the reason for this rule: “when a defendant properly raises the disputed factual issues in the district court, a record sufficient to permit adequate review is thereby developed, but, when a defendant fails to raise the issue below, we have no factual record by which to review the district court’s factual determinations.”

Let's take a longer look at this precedent. In 2015, Justice Sotomayor, joined by Justice Breyer, addressed this issue in a statement respecting the denial of certiorari in United States v. Carlton. Carlton involved a factual error underlying a sentencing enhancement. The enhancement was based on witness testimony that simply did not contain the facts supporting the enhancement. No one discovered the error until appeal. The Fifth Circuit affirmed the sentence based on circuit precedent holding that “factual errors are never cognizable on plain-error review.”

Justice Sotomayor argued that this precedent is “misguided.” She wrote that neither the Supreme Court’s plain-error precedent nor Rule 52 distinguish between legal and factual errors. To the contrary, the Supreme Court has generally held that a per se approach to plain-error review is “flawed.” Justice Sotomayor also stated that no other circuit, beyond the Fifth Circuit, has a per se rule that factual errors cannot be plain error. She identified the Tenth Circuit as applying a rule somewhat like the Fifth’s. But, she noted, citing United States v. Dunbar, 718 F. 3d 1268, 1280 (10th Cir. 2013), “even the Tenth Circuit’s rule is subject to an exception in cases. . . where the appellant can establish the certainty of a favorable finding on remand.” She urged the Fifth Circuit to “rethink its approach to plain-error review.”

Take a look at these cases if you find yourself in a factual bind on appeal.

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