When Plain Error Is Left To Rot
June 24, 2015 (Mimesis Law) — The most conservative federal appeals court in the country, the U.S. Court of Appeals for the Fifth Circuit, got off with a warning on Monday when the Supreme Court refused to correct a precedent dealing with factual errors introduced in the record. The precedent is unique in that circuit, and quite shocking: Factual errors, no matter how blatant and harsh their consequences, are simply not cognizable under “plain-error review.”
Under federal law, plain errors are those affecting substantial rights. And because substantial rights matter a ton, at least in theory, courts have the freedom to review them even if a lawyer failed to preserve it by bringing it to the court’s attention during a lower-court proceeding. In Carlton v. United States, the case the Supreme Court turned away, federal prosecutors had introduced a “factual inaccuracy” into the record. The inaccuracy was so blatant it never even happened, and it served as the basis for landing the defendant in prison for longer than he would have, absent the error.
Roy Elbert Carlton, the defendant, was already a federal prisoner in Louisiana when he was convicted of possession of marijuana while incarcerated. Bad move. During a visit with his girlfriend, a prison guard noticed the pair acting “funny” and put Carlton in a dry cell to see what he was up to. Indeed, the woman had given Carlton “glove tips” containing marijuana, which he later passed in his stool.
Carlton was convicted at trial, but the probation office, in its presentence report, mistakenly noted that the girlfriend testified at trial that “Carlton intended to use the marijuana to pay off a debt owed to another inmate.”
No such testimony ever happened, but federal prosecutors rehashed the misrepresentation anyway, and the trial judge rejected the objection to the guidelines calculations. And because of how sentencing guidelines work, the mistake led to a sentencing enhancement of 2 points, resulting in a 27-month prison term for Carlton.
His pleas fell on deaf ears at the Fifth Circuit. Relying on a quirky 1991 case of its own making, the three-judge panel agreed with Carlton that his girlfriend “never testified that Carlton needed the marijuana to repay a prison debt,” but concluded that was only a mistake of fact, and such mistakes “can never constitute plain error because it could have been cured by bringing it to the district court’s attention at sentencing.” But the Federal Rules of Criminal Procedure do not impose such requirement on defendants. Even Judge Edward Prado, in a concurring opinion, agreed that the Fifth Circuit’s own decades-old precedent foreclosing Carlton’s appeal was “wrongly decided.”
So why did the Supreme Court punt on it? Justice Sonia Sotomayor offered some clues. In a short statement accompanying the denial, joined only by Justice Stephen Breyer, she noticed that the Fifth Circuit is inconsistent in its application of its own quirky plain-error rule, and thus expressed faith that the court would eventually course-correct. “When that sort of internal division exists, the ordinary course of action is to allow the court of appeals the first opportunity to resolve the disagreement,” she wrote. “I hope the Fifth Circuit will use that opportunity to rethink its approach to plain-error review.”
Of course, none of this squares with the realities of criminal practice, which Sotomayor herself acknowledged when she noted that the Supreme Court has long been of the view that “especially in criminal cases, appellate courts . . . may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” She characterized the Fifth Circuit’s rule as “wooden,” and pointed out it was “out of harmony with . . . the rules of fundamental justice.” And that no other circuit had anything remotely close to it.
Meanwhile, Carlton will have to sit in prison for a few months longer than he would have were it not for the existence of this flight of fancy in the Fifth Circuit. If that’s not a plain error affecting someone’s substantial rights, then nothing is. And yet, the Supreme Court took a pass.