Ignoring Plain Errors – Update for November 2, 2016

 We’re still doing a weekly newsletter… we’re just posting pieces of it every day.  The news is fresher this way…


euripides161102Perhaps one of our wiser defense attorneys, the Greek playwright Euripides, wrote “question everything, learn something, answer nothing.” This  advice should have been heeded by today’s defendant, Lester Smith (a pseudonym)… or, at least, his trial attorney.

We’ve written about plain error before, but today’s case is special: it illustrates just how many hoops a defendant must clear in order to carry the day on appeal after failing to question everything – that is, object often and in detail – at trial. The subject matter of the case is rather seamy, but the outcome should be troubling to anyone. Substitute “drug trafficking” or “identity theft” or “tax protester” for “child porn,” and our point becomes clearer: under the plain error standard, the district court’s mistake may be obvious and may seriously prejudice the defendant, and still, the court of appeals may be so offended by the crime or the criminal that it decides that it just isn’t interested in seeing that the law is followed.

Lester Smith pleaded guilty to a count of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2). Lester’s Presentence Report found he was a “repeat and dangerous sex offender against minors” within the meaning of U.S.S.G. § 4B1.5, which gave him an offense level of 34 and a criminal history category of V. The PSR found Lester’s Guidelines range was 180 to 210 months.

At sentencing, the district court adopted the PSR’s findings, but imposed a 360-month sentence, significantly above the Guidelines range, because of a previous sex offense involving a child and what the court called the “very disturbing nature” and “high number” of pornographic videos and still images involved.

Lester’s lawyer didn’t object to the enhancement, but Lester raised it on appeal. reviewed only for plain error. ‘Plain error’ occurs when there was an error; the error was clear and obvious; and the error affected the defendant’s substantial rights. If all of those conditions is met, an appellate court may exercise its discretion to correct the error only if “the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

hoops161102That’s a lot of hoops for a defendant to jump through. On Monday the 5th Circuit decided that Lester didn’t make it.

Lester argued that his state aggravated incest conviction was not a prior “sex offense conviction” under U.S.S.G. § 4B1.5(a). The Court of Appeals agreed, holding that the version of aggravated incest to which Smith had pled guilty “criminalized a broader range of conduct than the corresponding offenses currently enumerated” in federal law… This Court has not identified any federal offenses that encompass the elements of Smith’s Louisiana conviction of aggravated incest. Accordingly, his previous conviction did not constitute a prior “sex offense conviction” under § 4B1.5(a)… This error satisfies the first prong of the plain error analysis.”

What’s more, the 5th Circuit said, the error was “clear and obvious… Had the district court reviewed the plain language of the relevant statutory provisions to determine whether Smith’s previous state offense was a prior ‘sex offense conviction,’ the error in the PSR’s calculation would have been apparent.”

Some errors are obvious.
                         Some errors are obvious.

The Circuit agreed as well that the clear and obvious error affected Smith’s substantial rights. Because of the incorrect 5-level enhancement, the wrongly PSR concluded that the Guidelines range was 180 to 210 months. Absent the error, Smith’s Guidelines would have been from 70 to 87 months (although the mandatory minimum sentence would have made it 180 months.

Lester’s district court used the Guidelines range as the beginning point to explain the decision to deviate up to 360 months, the Court said, and the Guidelines appear to have been one of the bases for the sentence imposed. Accordingly, the Court followed the Supreme Court’s recent holding in Molina-Martinez v. United States, and concluded “that the error in the calculation of the Guidelines range was sufficient by itself to show a reasonable probability of a different outcome absent the error. Thus, the error affected Smith’s substantial rights under the third prong of the plain error analysis.”

By now, readers are thinking that Lester’s 3-for-3, and should have this appeal in the bag. But he doesn’t, and that’s why this case is interesting. The Court of Appeals notes that with “the first three prongs satisfied, this Court may exercise its discretion to reverse the sentence only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” This fourth prong is not automatic, but rather “is meant to be applied on a case-specific and fact-intensive basis.”

During Lester’s sentencing hearing, the 5th Circuit said, “the district court stated that the offense was ‘quite troubling’ and explained, ‘I don’t know, frankly, that the Guidelines correctly captured the nature and extent of the behavior in this defendant’s collection of child pornography’.” The district court described the disturbing images and videos found, Lester’s prior sex conviction, and concluded that a 360-month sentence “was ‘a just and reasonable sentence under the history and characteristics of this defendant, the nature and circumstances of the instant offense, the need to afford adequate deterrence to future criminal conduct by this defendant, as well as the need to protect the public from further crimes of the defendant’.”

Some types of offenses are just too offensive. Today, it's kiddie porn... tomorrow, it may be jaywalking. That's why we have laws, to save us from the Flavor of the Day.
     Some types of offenses are just too offensive. Today, it’s kiddie porn… tomorrow, it may be jaywalking. That’s why we have laws, to save us from the Flavor of the Day.

The appellate court concluded that in this case, “affirming the district court’s 360-month sentence would not result in a miscarriage of justice. Thus, we are not convinced that the district court’s error in this case seriously affects the fairness, integrity, or public reputation of judicial proceedings. We decline to exercise our discretion to correct the error.”

In other words, the Court thinks some crimes are so bad that even plain errors in applying the law simply don’t bother it.

United States v. Wikkerink,  Case No. 15-20152  (5th Cir. Oct. 31, 2016)


Leave a Reply

Your email address will not be published. Required fields are marked *