In August the Fifth Circuit decided U.S. v. Rodriguez-Parra, an illegal-reentry case in which Mr. Rodriguez argued that his fully-probated five-year sentence for marijuana trafficking should not have been used under section 2L1.2(b)(1)(B) to increase his offense level for illegal reentry by 12 points.
The court found that Mr. Rodriguez should indeed not have suffered the increased offense level, but then—since Mr. Rodriguez’s lawyer had not objected to the 12-level enhancement in the trial court—continued with an analysis of the plainness of that error:
We conclude, as stated above, that there was error. That result is reached, however, only by a careful parsing of all the relevant authorities, including the sentencing guidelines and applicable decisions. “[T]o satisfy the second prong of plain error inquiry, ‘the legal error must be clear or obvious, rather than subject to reasonable [dispute].’” Ellis, 564 F.3d at 377-78 (quoting Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)). Here the result is reached only by traversing a somewhat tortuous path. That path, moreover, would have been more straight and level had Rodriguez-Parra made his objection in the district court, thus allowing each side to present its arguments on the question now at hand. This is the very point of the plain-error standard—it “serves powerful institutional interests, including securing the role of the United States District Court as the court of first instance.” Id. at 378.
For these reasons, Rodriguez-Parra’s claim of plain error fails at the second prong, so we do not examine the remaining prongs.
What was the “somewhat tortuous path” that the Fifth Circuit had to follow to reach its result?
- Read section 2L1.2(b)(1)(B) of the United States Sentencing Guidelines Manual; wonder whether a five-year fully-probated sentence is a “sentence imposed”;
- Read section 2L1.2’s application notes; learn that “sentence imposed” has the same meaning as “sentence of imprisonment” in 4A1.2;
- Read section 4A1.2; learn that “sentence of imprisonment” means a sentence of incarceration, and does not include any portion of a sentence that was suspended;
- Read Application Note 2 to section 4A1.2, which confirms: “To qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence.”
In the Fifth Circuit’s view, if a judge has to read two sections of the Sentencing Guidelines, along with their application notes (or one section of the Guidelines, 2L1.2, and one Fifth Circuit case, U.S. v. Brown, 54 F.3d 234 (5th Cir. 1995)), to learn that a particular guideline does not apply, then its application, while error, is not “plain error.”
You might think that, in the current legal economy, the Fifth Circuit could afford a better class of law clerks to write its opinions.
This may be a “tortuous path” for the judges on the Fifth Circuit—for all I know they may all be quite dim—but I have practiced before many of the Texas federal judges whose homework they grade, and I assure you: reading the Sentencing Guidelines is not, for them, heavy lifting.
A fascinating (in a judicial-train-wreck way) aspect of the Court’s opinion in U.S. v. Rodriguez-Parra is its reliance on U.S. v. Garcia-Rodriguez, 415 F.3d 452 (5th Cir. 2005) for the proposition that the error is not plain. In Garcia-Rodriguez a different panel heard the same issue and punted on the first prong of the plain error test (i.e. “was it error?”), finding simply that if it was error, the error was not plain.
Since, reasons the Fifth Circuit in 2009, the error was not plain in 2005, it is not plain today. Never mind that it is not subject to reasonable dispute, if the correct legal result depends on “a careful parsing of all the relevant authorities” it is not clear or obvious.
The Fifth Circuit thinks a careful parsing of all the relevant authorities is a tortuous path. It’s not. From judges as well as from practitioners, it’s the absolute minimum we should be able to expect.