Reviewing for plain error on appeal

August 21, 2013

The Supreme Court in WashingtonWith all the hubbub over same-sex marriage, voting rights, and affirmative action, there were some important decisions from the Supreme Court’s 2012 term that have been overlooked. One of these is Henderson v. United States, which should be of particular interest to criminal appellate lawyers.

Federal Rule of Criminal Procedure 52(b) allows courts of appeals to consider “plain” errors even when they were not brought to the trial court’s attention. In Henderson, the defendant pled guilty and the district court sentenced him to a prison term that was longer than that recommended by the Sentencing Guidelines, so as to qualify Henderson for a drug rehabilitation program. And Henderson did not object. But by the time Henderson’s appeal reached the Fifth Circuit, the Supreme Court had ruled (in Tapia v. United States) that federal law “precludes federal sentencing courts from imposing or lengthening a prison term to promote an offender’s rehabilitation.” This made the “error” of Henderson’s sentence “plain”—but the Fifth Circuit held that the error was not plain at the time that the district court imposed its sentence, therefore Henderson could get no relief under Rule 52(b).

Henderson petitioned for certiorari, and the question before the Supreme Court was straightforward: Can a court of appeals correct a “plain” error in the district court’s ruling, even if it wasn’t “plain” at the time that the district court ruled?

The circuit courts had split over this question, and the Supreme Court split over it too. Justice Scalia wrote a colorful dissent, joined by Justices Thomas and Alito—but a 6-justice majority led by Justice Breyer held that, in the interests of “fairness and judicial integrity,” plain errors are correctable under Rule 52(b) regardless of when they become plain.

The Henderson decision will have traction in only a narrow band of criminal cases—those in which the district court errs, but the error is not brought to the court’s attention and the plainness of the error does not become clear until after the district court has ruled. But the narrowness of its applicability does not reduce its importance when applicable. Just ask Mr. Henderson.