U.S. v. Caputo, 91-3315

• Decision Date: 28 October 1992
• Docket Number: No. 91-3315,91-3315
• Citation: 978 F.2d 972
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James CAPUTO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 972

978 F.2d 972

UNITED STATES of America, Plaintiff-Appellee, v. James CAPUTO, Defendant-Appellant.

No. 91-3315.

United States Court of Appeals, Seventh Circuit.

Argued June 3, 1992.

Decided Oct. 28, 1992.

Robert L. Michels (argued), Office of U.S. Atty., Crim. Div., Barry R. Elden, Asst. U.S. Atty., Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, for plaintiff-appellee.

Adam Bourgeois (argued), Chicago, for defendant-appellant.

Before CUDAHY, POSNER, and KANNE, Circuit Judges.

POSNER, Circuit Judge.

James Caputo pleaded guilty to federal drug offenses and was sentenced under the federal sentencing guidelines to 120 months in prison. His appeal challenges the sentence on several grounds but only one has sufficient merit to warrant discussion. It concerns the computation of his criminal history. He received six criminal history "points" and as a result was classified in criminal history Category III, putting him in the 97-121 month guideline range. He argues that he should have received only three points, which would have put him into Category II and by doing so have reduced his guideline range to 87-108 months, so that his sentence would have been at least 13 months shorter unless the judge made an upward departure from the guidelines range, a possibility not discussed. The argument was not made in the district court, so we can use it to reverse the judgment only if there was "plain error."

Rule 52(b) of the criminal rules says that "plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Were the passage more liberally punctuated, there would be commas around "defects," so that the rule would read "plain errors, or defects, affecting substantial rights may be noticed...." United States v. Young, 470 U.S. 1, 15 n. 12, 105 S.Ct. 1038, 1046 n. 12, 84 L.Ed.2d 1 (1985). Rule 52(a) defines a "harmless error" (which the rule says "shall be disregarded") as one that "does not affect substantial rights." So putting the two subsections together, and adding our clarifying punctuation of (b), we might suppose that Rule 52(b) allowed the correction of errors not brought to the attention of the court that were at once clear and not harmless.

But that is not how the rule is interpreted. A plain error that may be noticed by the court is not an error that merely is plain and not harmless. It is an error that is plain and "likely to have made a difference in the judgment, so that failure to correct it could result in a miscarriage of justice, that is, in the conviction of an innocent person or the imposition of an erroneous sentence." United States v. Newman, 965 F.2d 206, 213 (7th Cir.1992). "[L]ikely to have made a difference in the judgment" is at least a tad stronger than not harmless, and some of our cases draw the distinction more starkly: "we determine whether the alleged error resulted in a miscarriage of justice of such magnitude that the defendant probably would have been acquitted absent the error." United States v. Reiswitz, 941 F.2d 488, 493 (7th Cir.1991); see also United States v. Blythe, 944 F.2d 356, 359 (7th Cir.1991); United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir.1984). These formulations, the shade of verbal difference between which is not to be taken too seriously, are supported by the Supreme Court's opinion in United States v. Frady, 456 U.S. 152, 163 and n. 13, 102 S.Ct. 1584, 1592 and n. 13, 71 L.Ed.2d 816 (1982), which explains that Rule 52(b) authorizes the correction only of "particularly egregious errors," where "a miscarriage of justice would otherwise result." The error must be such that "the trial judge and prosecutor were derelict in countenancing it." Id.; see also United States v. Young, supra, 470 U.S. at 15, 105 S.Ct. at 1046. The "appellate court [is required] to find that the claimed error not only seriously affected 'substantial rights' "--and thus was not harmless, Fed.R.Crim.P. 52(a)--"but that it had an unfair prejudicial impact on the jury's deliberations." United States v. Young, supra, 470 U.S. at 17 n. 14, 105 S.Ct. at 1045 n. 14. A harmless error is one that could not have affected the jury, a plain error one that not only could have done so but probably did so. As a practical matter, no doubt, the difference is small, United States v. Silverstein, supra, 732 F.2d at 1349, but it is discernible.

Behind the narrow interpretation of the plain-error rule is a recognition that it is inconsistent with the premises of an adversary system, id. at 1349--which is why the civil rules contain no counterpart to Rule 52(b) of the criminal rules and why this circuit has been unwilling to create a common law plain error rule for civil cases, Bogan v. Stroud, 958 F.2d 180, 184 (7th Cir.1992); Maul v. Constan, 928 F.2d 784, 787 (7th Cir.1991), unlike some other circuits. See Polys v. Trans-Colorado Airlines, Inc., 941 F.2d 1404, 1408 (10th Cir.1991), and cases cited there and earlier cases cited in City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 256 n. 13, 101 S.Ct. 2748, 2754 n. 13, 69 L.Ed.2d 616 (1981); see generally Hobson v. Wilson, 737 F.2d 1, 32 n. 96 (D.C.Cir.1984). What could justify the anomaly in the criminal sphere? It is the injustice of allowing the conviction of an innocent person, or an unlawful sentence imposed upon a guilty person, to stand. Such injustices can be avoided, with relatively minor perturbation in the orderly process of justice, despite the defendant's failure to have brought the error that precipitated his conviction or sentence to the trial court's attention, when the appellate court can find and correct the error without any entanglement in contested or unknown facts, or in obscure or contestable rules of law. The benefit of departing from the ordinary processes of adversary justice is maximized when the departure is necessary to save an innocent person. The cost is minimized when the error can be picked out with relatively little difficulty.

Both the existence of injustice and the ease of its correction depend on certainty that error was committed. An error is not plain in the sense of egregious if it isn't even clear that it was an error, and if that isn't clear the appellate court is likely to encounter difficulty in determining that an error occurred at all. If it is uncertain whether the trial court committed an error, it will be difficult to say that there is a substantial danger that an innocent man was convicted, unless the appellate court invests substantial resources in determining whether there was error.

We should note an exception to the formula that we are expounding: if the error consists of a certainly erroneous failure to consider a factual question that if resolved in the defendant's favor would require his acquittal, the plain-error rule is applicable even though a determination of whether there was in fact a miscarriage of justice must await the additional factfinding in the trial court. With this exception (which does not entail any entanglement by the appellate court in the factual issue), the certainty of the error's actually being error, and, what is closely related, whether the error is straightforward in the sense that the appellate court can readily determine that it is an error, are, along with severe prejudice to the defendant, essential elements of a proper reversal under Rule 52(b). But we do not think, as the government argued, that the error must be plain in the further sense that it leaps out at the reader of the district court's decision--that it is obvious in the sense of being a tyro's error, an error that only a first-year law student would have made, a ludicrous error, an error that condemns the lawyer who failed to bring it to the judge's attention of professional incompetence and the judge of judicial incompetence for having failed to notice it. If the plain-error doctrine were so confined it could almost never be invoked successfully, if only because it would be virtually coextensive with the doctrine of ineffective assistance of counsel. So, while the error must be straightforward, it can be so in hindsight. United States v. Silverstein, supra, 732 F.2d at 1349; cf. United States v. McCall, 915 F.2d 811, 814 (2d Cir.1990). But it must be sufficiently certain and sufficiently prejudicial that the trial judge and prosecutor were derelict in countenancing it. United States v. Frady, supra, 456 U.S. at 163, 102 S.Ct. at 1592. It cannot be subtle, arcane, debatable, or factually complicated. It must be--plain; but it needn't be blatant.

There can be plain error in sentencing as well as in convicting. United States v. Newman, supra, 965 F.2d at 213. To impose an unlawful sentence is a miscarriage of justice, and often the determination of the lawfulness of a sentence does not depend on a factual determination. Does this mean that a criminal defendant can raise all his purely legal objections to a sentence for the first time on appeal, on the theory that any error in the length of the sentence brings about a miscarriage of justice? No, because subtle, obscure, debatable errors are (to repeat) excluded. And there is a further control, which lies in the resolution of a double issue that we have not yet discussed: Can only plain errors be noticed for the first time on appeal? And must plain errors be noticed for the first time on appeal? The answer to the first question is a qualified yes, and to the second a qualified no.

Although Rule 52(b) does not say in so many words that a court may not notice an error unless it is plain, the negative implication--that it may not, in general, notice a nonplain error even if it is prejudicial (that is, not harmless and hence not within the bar of Rule 52(a))--seems inescapable. The interest, which courts stress, in bringing criminal proceedings to a speedy conclusion, Flanagan v. United States, 465 U.S. 259, 264-66, 104 S.Ct. 1051, 1054-55, 79 L.Ed.2d 288 (...