U.S. v. Lynn

• Decision Date: 28 January 2010
• Docket Number: No. 08-5126.,No. 08-5125.,No. 08-5132.,No. 09-4341.,08-5125.,08-5126.,08-5132.,09-4341.
• Citation: 592 F.3d 572
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark LYNN, a/k/a Mark Aaron Lynn, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Tavarras Rhodes, a/k/a Tavarras Jerrell Rhodes, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Avery Jermaine Peake, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jeremy Vashon Tucker, a/k/a Nicholas Wilson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

592 F.3d 572

UNITED STATES of America, Plaintiff-Appellee, v. Mark LYNN, a/k/a Mark Aaron Lynn, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Tavarras Rhodes, a/k/a Tavarras Jerrell Rhodes, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Avery Jermaine Peake, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Jeremy Vashon Tucker, a/k/a Nicholas Wilson, Defendant-Appellant.

No. 08-5125.

No. 08-5126.

No. 08-5132.

No. 09-4341.

United States Court of Appeals, Fourth Circuit.

Argued: December 3, 2009.

Decided: January 28, 2010.

(Nos.08-5125, 08-5126) ARGUED: Gregory Bruce English, English & Smith, Alexandria, Virginia, for Appellants. Richard Daniel Cooke, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Mark K. Tyndall, Richmond, Virginia, for Appellant Tavarras Rhodes. Dana J. Boente, Acting United States Attorney, Alexandria, Virginia, for Appellee. (No. 08-5132) ARGUED: David Wilson Plowden, Office of the Federal Public Defender, Greenville, South Carolina, for Appellant. William Jacob Watkins, Jr., Office of the United States Attorney, Greenville, South Carolina, for Appellee. ON BRIEF: W. Walter Wilkins, United States Attorney, Columbia, South Carolina, for Appellee. (No. 09-4341) ARGUED: Benjamin Thomas Stepp, Office of the Federal Public Defender, Greenville, South Carolina, for Appellant. William Jacob Watkins, Jr., Office of the United States Attorney,

Greenville, South Carolina, for Appellee. ON BRIEF: W. Walter Wilkins, United States Attorney, Columbia, South Carolina; David C. Stephens, Assistant United States Attorney, Office of the United States Attorney, Greenville, South Carolina, for Appellee.

Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.

No. 08-5125 vacated and remanded by published opinion; No. 08-5126 affirmed by published opinion; No. 08-5132 affirmed by published opinion; No. 09-4341 vacated and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge MICHAEL and Judge GREGORY joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

In each of these cases, an appellant contends that the sentencing court committed reversible procedural error by failing to consider the required sentencing factors and offer an adequate explanation for the sentence imposed. When a party lodges such an objection in the sentencing court, we review for abuse of discretion. We consolidated these cases on appeal to resolve what standard of appellate review applies when a party lodges such an objection for the first time on appeal. For the reasons that follow, we conclude that we subject such unpreserved objections only to plain-error review.

I.

The question at issue in these consolidated cases arises from the Supreme Court's recent sentencing decisions. In United States v. Booker, 543 U.S. 220, 245, 262, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Court rendered the once-mandatory federal Sentencing Guidelines "effectively advisory," and called on federal appellate courts to review district courts' sentences for "reasonableness." In Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the Court explained that this reasonableness review has procedural and substantive components.

First, an appellate court must review for procedural reasonableness,

ensur[ing] that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,¹ selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.

Id. If the appellate court finds a sentence procedurally reasonable, it then moves to the second step, in which it "consider[s] the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard." Id.; see also Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). These consolidated cases present claims only of procedural error, i.e. that a sentencing court assertedly "fail[ed] to consider the § 3553(a) factors" and "adequately explain the chosen sentence," as required by § 3553(c). Gall, 552 U.S. at 51, 128 S.Ct. 586; see also Rita, 551 U.S. at 356, 127 S.Ct. 2456.

The Supreme Court has held that when sentencing, a court must demonstrate that it "considered the parties' arguments and ha[d] a reasoned basis for exercising [its] own legal decisionmaking authority." Rita, 551 U.S. at 356, 127 S.Ct. 2456. "[A] statement of reasons is important" because it "helps [the sentencing] process evolve," id. at 356, 357, 127 S.Ct. 2456. "allow[s] for meaningful appellate review[,] and ... promote[s] the perception of fair sentencing." Gall, 552 U.S. at 50, 128 S.Ct. 586.

We have addressed claims of procedural sentencing error in several recent cases. Relying on Supreme Court guidance, we have held that for every sentence—whether above, below, or within the Guidelines range—a sentencing court must "place on the record an `individualized assessment' based on the particular facts of the case before it." United States v. Carter, 564 F.3d 325, 330 (4th Cir.2009) (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). But we have also held that in explaining a sentencing decision, a court need not "robotically tick through § 3553(a)'s every subsection," particularly when imposing a within-Guidelines sentence. United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). "[A] major departure [from the Guidelines] should be supported by a more significant justification than a minor one," Gall, 552 U.S. at 50, 128 S.Ct. 586, but an individualized explanation must accompany every sentence. See United States v. Johnson, 587 F.3d 625, 639 (4th Cir.2009); Carter, 564 F.3d at 330.

Although to date neither this court nor the Supreme Court has issued an express holding as to the standard of review of properly preserved objections to the sort of procedural sentencing errors at issue here, the Court has generally stated that we "must review all sentences ... under a deferential abuse-of-discretion standard." Gall, 552 U.S. at 40, 128 S.Ct. 586. Moreover, when considering another sort of procedural sentencing error, the Court recently observed that "procedural errors at sentencing ... are routinely subject to harmlessness review." Puckett v. United States, ___ U.S. ___, 129 S.Ct. 1423, 1432, 173 L.Ed.2d 266 (2009). We have similarly remarked in the context of another procedural sentencing error that, when an appellant properly preserved such error, "we are obliged to apply the `harmless error' standard provided by Federal Rule of Criminal Procedure 52(a)." United States v. Robinson, 460 F.3d 550, 557 (4th Cir.2006); see Fed.R.Crim.P. 52(a) ("Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."). Accordingly, we conclude that if a party repeats on appeal a claim of procedural sentencing error like those at issue here, which it has made before the district court, we review for abuse of discretion. If we find such abuse, we reverse unless we conclude that the error was harmless.

This does not, however, resolve the question of what standard of appellate review applies to such claims of procedural sentencing error made for the first time on appeal.

II.

Although we have not yet directly addressed this question, we believe the answer is clear. Federal Rule of Criminal Procedure 52(b), as well as recent cases from the Supreme Court and our court dictate the proper standard of review generally applicable to unpreserved procedural sentencing errors. This authority requires that in the context at hand, as in most others, when a party does not preserve an argument in the district court, we review only for plain error.

Rule 52(b) provides that, in the absence of proper preservation, plain-error review applies. See Fed.R.Crim.P. 52(b). To establish plain error, the appealing party must show that an error (1) was made, (2) is plain (i.e., clear or obvious), and (3) affects substantial rights. United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir.2009). Even if an appellant makes this three-part showing, an appellate court may exercise its discretion to correct the error only if it "seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. at 343 (internal quotation marks omitted).

Absent structural error (and no party contends that the errors at issue here are structural), the Supreme Court has generally held that appellate courts can review unpreserved claims only for plain error. United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Moreover, just this term, when considering another sort of sentencing error, the Supreme Court expressly held that "[i]f an error is not properly preserved, appellate-court authority to remedy the error ... is strictly circumscribed" to plain-error review. Puckett, 129 S.Ct. at 1428. The Court explained that applying plain-error review in the sentencing context "serves worthy purposes," id. at 1433, including "induc[ing] the timely raising of claims and objections," id. at 1428. In Booker itself, the Court instructed that in reviewing sentences, courts should "apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the `plain-error' test." 543 U.S. at 268, 125 S.Ct. 738.

Like the Supreme Court, we too have indicated that the rigorous plain-error standard applies to unpreserved claims of procedural sentencing error. See United States v. Sosa-Carabantes, 561 F.3d 256, 259 n. 6 (4th Cir.2009) (noting plain-error review would apply to objection to application of Guidelines enhancement if not made before the district court, but finding objection preserved); United States v....