United States v. Henderson

• Decision Date: 15 December 2011
• Docket Number: No. 10–30571.,10–30571.
• Citation: 665 F.3d 160
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Armarcion D. HENDERSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

665 F.3d 160

UNITED STATES of America, Plaintiff–Appellee,

v.Armarcion D. HENDERSON, Defendant–Appellant.

No. 10–30571.

United States Court of Appeals, Fifth Circuit.

Dec. 15, 2011.

Cristina Walker, Robert Watts Gillespie, Asst. U.S. Attys., Shreveport, LA, for Plaintiff–Appellee.

Patricia Ann Gilley, Gilley & Gilley, Shreveport, LA, for Defendant–Appellant.

Appeal from the United States District Court for the Western District of Louisiana; S. Maurice Hicks, Jr., Judge.ON PETITION FOR REHEARING EN BANC

Before SMITH, SOUTHWICK and GRAVES, Circuit Judges.

PER CURIAM:

The court having been polled at the request of one of the members of the court, and a majority of the judges who are in regular active service and not disqualified not having voted in favor (Fed. R.App. P. 35 and 5th Cir. R. 35), the petition for rehearing en banc is DENIED.

In the en banc poll, 7 judges voted in favor of rehearing (Stewart, Dennis, Elrod, Southwick, Haynes, Graves, and Higginson), and 10 judges voted against rehearing (Jones, King, Jolly, Davis, Smith, Garza, Benavides, Clement, Prado, and Owen).

HAYNES, Circuit Judge, joined by DENNIS, Circuit Judge, dissenting:

I respectfully dissent from the court's decision to deny rehearing en banc. Two issues raised by the panel's opinion merit the full court's attention: (1) the nature of the error that can be corrected under Federal Rule of Criminal Procedure 35(a); and (2) the timing of when the “obviousness” of plain error is judged—at the time of the error or at the time of the appellate decision.

I.

On the first issue, while the panel cites the appropriate standard—“errors which would almost certainly result in a remand of the case to the trial court for further action”—it applies this standard in a way that puts the opinion at odds with our own precedent, Watkins, and that of other circuits. Federal Rule of Criminal Procedure 35(a) provides that “[w]ithin 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” Fed.R.Crim.P. 35(a). The Advisory Committee's notes provide that “[t]he authority to correct a sentence under this subdivision is intended to be very narrow and to extend only to those cases in which an obvious error or mistake has occurred in the sentence, that is, errors which would almost certainly result in a remand of the case to the trial court ....” Fed.R.Crim.P. 35 advisory committee's note.¹

The Advisory Committee's notes also explain that Rule 35(a) was intended to codify the results in United States v. Cook, 890 F.2d 672 (4th Cir.1989), and United States v. Rico, 902 F.2d 1065 (2d Cir.1990), subject to a more stringent time requirement (now 14 days) for correcting sentencing errors. Fed.R.Crim.P. 35 advisory committee's note; see also United States v. Ross, 557 F.3d 237, 239–41 (5th Cir.2009). In Cook, the appellate court upheld the district court's decision to amend a sentence that was not authorized under the sentencing guidelines as they existed at the time. 890 F.2d at 675. Similarly, in Rico, the Second Circuit upheld the district court's decision to correct a sentence that mistakenly applied a plea agreement. 902 F.2d at 1068. Thus, Rule 35(a) is intended to allow a district court to correct a sentence that was unlawful. See Cook, 890 F.2d at 675; Rico, 902 F.2d at 1068; Fed.R.Crim.P. 35 advisory committee's note. However, “[t]he subdivision is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence.” Fed.R.Crim.P. 35 advisory committee's note.

Other than the panel's opinion, only one published Fifth Circuit case has addressed whether a Rule 35(a) motion can preserve error . See United States v. Watkins, 450 F.3d 184 (5th Cir.2006) (per curiam). In that case, the defendants filed a timely Rule 35(a) motion to raise their claim that application of a firearm adjustment to their sentences would violate their Sixth Amendment rights. Id. at 185. They had not raised that point of error before the district court announced their sentences. Id. Our court concluded that their Rule 35(a) motion was sufficient to preserve the error. Id.

In distinguishing Watkins, the panel looked beyond the facts set out in the Watkins opinion.² The underlying record in Watkins indicates that the defendants filed a Rule 35 motion because a Supreme Court case issued three days after their sentencing rendered their sentence unlawful. That Supreme Court opinion was issued during the period that the district court could have corrected its error under Rule 35. The panel distinguished Watkins because here, the Supreme Court's opinion in Tapia v. United States, ––– U.S. ––––, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011), was issued after the case had already been appealed and after the fourteen-day time period during which the district court could have corrected the error had expired. Watkins itself, however, made no such distinction, and I do not think it is appropriate to “go behind” the published opinion to introduce facts not therein expressly relied upon.

Several other circuits have indicated that Rule 35 permits a district judge to correct errors of law. See Cook, 890 F.2d at 675 (noting that the district court could correct a sentencing error because the original sentence “was not a lawful one”); Rico, 902 F.2d at 1068 (upholding a sentencing modification because the original sentence was an “illegal sentence”); United States v. Himsel, 951 F.2d 144, 147 (7th Cir.1991) (noting that “the district judge had authority to vacate [a defendant's] first sentence if that sentence was illegal”); United States v. Quijada, 146 Fed.Appx. 958, 971 (10th Cir.2005) (unpublished) (concluding that a mistake or violation of the law was clear error). The panel opinion represents a divergence (if not a split) from those cases, worthy of the full court's consideration.

Moreover, it would seem odd not to interpret “clear error” to mean “legal error.” If the district court could not correct a legal error, Rule 35's “other clear error” would seem to have little meaning since “arithmetical” and “technical” are already listed. If this court concludes that “clear error” means “legal error,” then the district court would have had the authority to correct Henderson's sentence at the time Henderson filed his Rule 35(a) motion. Even under the law as it existed at the time of Henderson's Rule 35(a) motion, Henderson's sentence would likely have been considered unlawful. Certainly, Tapia makes clear that it is. Additionally, this is not a situation where the district court would have simply “changed its mind” or made a different discretionary call about Henderson's sentence, as it could have found that the sentence originally imposed was unlawful under 18 U.S.C. § 3582(a).

Thus, practically speaking, it makes little sense not to construe Rule 35 to permit correction of legal errors within the 14 day period. One could construe the panel opinion to mean that even though the district court realizes a legal error, the parties must still go through a time-consuming and expensive delay to fix it. Rule 35's strictures seem more directed to avoiding “flip-flopping” than to avoiding correction of legal errors. It would seem strange that a point of legal error actually raised to the district court and able to be ruled upon by that court while the court still was within the time for correcting the error³ would be considered the same way as a point never raised at all in the district court. Therefore, I would recommend concluding that Henderson's Rule 35(a) motion preserved the point of error adequately, and this court should review Henderson's claim de novo. United States v. Oliver, 630 F.3d 397, 413 (5th Cir.2011) (noting that an issue raised and rejected in the district court is reviewed de novo), cert. denied, ––– U.S. ––––, 132 S.Ct. 758, 181 L.Ed.2d 490, 2011 WL 3205411 (Nov. 28, 2011). Under a de novo standard of review, Henderson would be entitled to a new sentencing hearing.

II.

If the panel correctly determined that the Rule 35(a) motion did not preserve the error, then the question is raised whether the “obviousness” of the error made is judged at the time of the error or at the time of appeal. The panel opinion, with little discussion, concludes that error is judged at the time of the proceeding in question (here, pre- Tapia, at the sentencing hearing). In so doing, the panel opinion does not acknowledge either our intra-circuit split or the inter-circuit split on this question. To understand this issue, a bit of history is necessary. The Supreme Court established in Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) 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 that an error be ‘plain’ at the time of appellate consideration.”

The Government argued in this case that “if the law at the time of trial is not settled, it is not enough that the error be plain at the time of appellate consideration.” The Government cites no authority for its contention ⁴; instead, it simply assumes that because the Supreme Court stated 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 that an error be ‘plain’ at the time of appellate consideration,” Johnson, 520 U.S. at 468, 117 S.Ct. 1544, the converse of that statement must also be true. However, the issue is not nearly so clear, as the Supreme Court has left open the question of whether plain error would be established “where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified,” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), and our sister circuits have split over whether Johns...