Henderson v. United States

• Decision Date: 20 February 2013
• Docket Number: No. 11–9307.,11–9307.
• Citation: 568 U.S. 266,133 S.Ct. 1121,185 L.Ed.2d 85
• Parties: Armarcion D. HENDERSON, Petitioner, v. UNITED STATES.
• Court: U.S. Supreme Court

568 U.S. 266

133 S.Ct. 1121

185 L.Ed.2d 85

Armarcion D. HENDERSON, Petitioner,

v.UNITED STATES.

No. 11–9307.

Supreme Court of the United States

Argued Nov. 28, 2012.

Decided Feb. 20, 2013.

Patricia A. Gilley, Shreveport, LA, for Petitioner.

Jeffrey B. Wall, Washington, D.C., for Respondent.

Donald B. Verrilli, Jr., Solicitor General, Lanny A. Breuer, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Jeffrey B. Wall, Assistant to the Solicitor General, Sangita K. Rao, Washington, D.C., for Respondent.

Justice BREYER delivered the opinion of the Court.

A federal court of appeals normally will not correct a legal error made in criminal trial court proceedings unless the defendant first brought the error to the trial court's attention. See United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). But Federal Rule of Criminal Procedure 52(b), creating an exception to the normal rule, says that "[a] plain error that affects substantial rights may be considered even though it was not brought to the [trial] court's attention." (Emphasis added.) The Rule does not say explicitly, however, as of just what time the error must be "plain." Must the lower court ruling be plainly erroneous as of the time the lower court made the error? Or can an error still count as "plain" if the erroneous nature of that ruling is not "plain" until the time of appellate review?

The case before us concerns a District Court's decision on a substantive legal question that was unsettled at the time the trial court acted, thus foreclosing the possibility that any error could have been "plain" then . Before the case was final and at the time of direct appellate review, however, the question had become settled in the defendant's favor, making the trial court's error "plain"—but not until that later time. In our view, as long as the error was plain as of that later time—the time of appellate review—the error is "plain" within the meaning of the Rule. And the Court of Appeals "may ... conside[r]" the error even though it was "not brought to the [trial] court's attention." Fed. Rule Crim. Proc. 52(b).

I

In early 2010, Armarcion Henderson, the petitioner, pleaded guilty in Federal District Court to a charge of being a felon in possession of a firearm. 646 F.3d 223, 224 (C.A.5 2011). The District Judge accepted the plea and, in June 2010, he sentenced Henderson to an above-Guidelines prison term of 60 months. Ibid. The judge entered the longer sentence to "try to help" Henderson by qualifying him for an in-prison drug rehabilitation program, a program that would provide "the treatment and the counse[l]ing that this defendant needs right now." App. to Pet. for Cert. 35a, 40a.

Henderson's counsel did not object. Indeed, the judge asked counsel if there was "any reason why that sentence as stated should not be imposed." Id., at 41a. And counsel replied, "Procedurally, no." Ibid. Subsequently, Henderson appealed, claiming, among other things, that the District Court had "plain[ly]" erred in sentencing him to an above-Guidelines prison term solely for rehabilitative purposes. 646 F.3d, at 224.

In 2011, after Henderson was sentenced but before Henderson's appeal was heard, this Court decided Tapia v. United States, 564 U.S. ––––, 131 S.Ct. 2382, 180 L.Ed.2d 357. There, we held that it is error for a court to "impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation." Id., at ––––, 131 S.Ct., at 2393. Given Tapia , Henderson's sentence was unlawful, and the District Court's decision to impose that sentence was erroneous. But, since Henderson's counsel had not objected in the trial court, the Court of Appeals could not correct the error unless Rule 52(b) applied. The Rule, however, applies only if the error was "plain." The error was not plain before Tapia ; it was plain after Tapia . Thus, the Fifth Circuit had to determine the temporal scope of Rule 52(b)'s words "plain error."

The appeals court decided that Rule 52(b) did not give it the authority to correct the trial court's error. 646 F.3d, at 225. The appellate panel pointed out that, "[b]efore Tapia , there was a circuit split on whether a District Court can consider a defendant's rehabilitative needs to lengthen a sentence." Ibid. The panel added that the Fifth Circuit had "not pronounced on the question" before Henderson was sentenced. Ibid. Thus, at the time when the District Court reached its decision, the law in that Circuit was unsettled. The Court of Appeals concluded that "Henderson cannot show that the error in his case was plain, ... because an error is plain only if it was clear under current law at the time of trial ." Ibid. (internal quotation marks omitted).

The Fifth Circuit denied rehearing en banc by a divided vote. 665 F.3d 160 (2011) (per curiam ) (7 to 10). Henderson filed a petition for certiorari. And we granted the petition to resolve differences among the Circuits. Compare, e.g., United States v. Cordery, 656 F.3d 1103, 1107 (C.A.10 2011) (time of review), with, e.g., United States v. Mouling, 557 F.3d 658, 664 (C.A.D.C.2009) (time of error).

II

A

Is the time for determining "plainness" the time when the error is committed, or can an error be "plain" if it is not plain until the time the error is reviewed? The question reflects a conflict between two important, here competing, legal principles. On the one hand, " ‘[n]o procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ " Olano, 507 U.S., at 731, 113 S.Ct. 1770 (quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944) ). This principle favors assessing plainness limited to the time the error was committed.

On the other hand, "[t]he general rule ... is that an appellate court must apply the law in effect at the time it renders its decision." Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). See Ziffrin v. United States, 318 U.S. 73, 78, 63 S.Ct. 465, 87 L.Ed. 621 (1943). Indeed, Chief Justice Marshall wrote long ago:

"It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied.... In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside." United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49 (1801).

This principle favors assessing plainness at the time of review.

Rule 52(b) itself makes clear that the first principle is not absolute. Indeed, we have said that a " ‘rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with ... the rules of fundamental justice.’ " Olano, supra, at 732, 113 S.Ct. 1770 (quoting Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037 (1941) ; ellipsis in original). But neither is the second principle absolute. Even where a new rule of law is at issue, Rule 52(b) does not give a court of appeals authority to overlook a failure to object unless an error not only "affect[s] substantial rights" but also "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Olano, supra, at 732, 113 S.Ct. 1770 (internal quotation marks omitted; brackets in original). Because the two principles here point in different directions and neither is absolute, we cannot decide this conflict simply by looking to one rather than to the other.

The text of Rule 52(b) does not resolve the problem. It does not say that a court of appeals may consider an "error that was plain"—language that would look to the past. Rather, it simply says that a court of appeals may consider "[a] plain error." And that language leaves the temporal question open. But see infra, at 1130 – 1131.

Neither does precedent answer the temporal question—at least not directly. Olano is clearly relevant. There, we said that Rule 52(b) authorizes an appeals court to correct a forfeited error only if (1) there is "an error," (2) the error is "plain," and (3) the error "affect[s] substantial rights." 507 U.S., at 732, 113 S.Ct. 1770 (internal quotation marks omitted). Pointing out that Rule 52"is permissive, not mandatory," id., at 735, 113 S.Ct. 1770, we added (4) that "the standard that should guide the exercise of remedial discretion under Rule 52(b)" is whether "the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,’ " id., at 736, 113 S.Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936) ; brackets in original ). At the same time, we said that "[w]e need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified." 507 U.S., at 734, 113 S.Ct. 1770. That is the case now before us.

Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), is also relevant. We there considered a trial court's decision that was clearly correct under Circuit law when made but which, by the time of review, had become plainly erroneous due to an intervening authoritative legal decision. We concluded that, "where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough...