In United States v. Henderson, the Fifth Circuit recently denied a petition for rehearing en banc in a case involving “(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.” No. 10-30571 (5th Cir. Dec. 15, 2011) (Haynes, J., dissenting).
Split #1: What is the nature of the error referred to in Rule 35(a)?
Rule 35(a) permits a court to correct an erroneous prison sentence within fourteen days after sentencing. Before a court may step in and recalculate an erronous sentence, however, it must find that the sentencing error was the result of an "arithmetical, technical, or other clear error." According to Judge Haynes’s dissent, Rule 35(a)’s “arithmetical, technical, or other clear error” language was simply a byzantine way of saying that courts may adjust prison sentences if deemed "unlawful" (i.e., an error of law). Several other circuit courts seem to agree with Judge Haynes:
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first sentence if that sentence was illegal"); United States v. Quijada, 146 F. App'x 958, 971 (10th Cir. 2005) (unpublished) (concluding that a mistake or violation of the law was clear error).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.
Split #2: To adjust an erroneous sentence, must the sentencing error be "obvious" at the time of trial or may courts also adjust an erroneous sentence when the error becomes obvious only after the case has been appealed?
The notes prepared for Rule 35(a) by the Advisory Committee state 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 . . . ." (emphasis added.) In her dissent, Judge Haynes frames the issue on which the circuit courts are split as follows: “If . . . [a] Rule 35(a) motion d[oes] 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.”
According to the Fifth Circuit’s panel decision, an erroneous application of the law is only “obvious” if the law was clear at the time of trial (in other words, the trial court must have misapplied settled law, inviting the appellate court to find that the trial court committed a "plain error"). See Johnson v. United States, 520 U.S. 461, 468 (1997). As Judge Haynes’s dissent points out, however, “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 (1993).”
Accordingly, the Fifth Circuit’s
sister circuits have split over whether Johnson applies to the plain error analysis when the law was unclear at the time of trial and later becomes clear. The Ninth and District of Columbia Circuits hold that if the law is unclear at the time of trial and later becomes clear, the exception laid out in Johnson does not apply, and the error is evaluated based on the law as it existed at the time of trial. See, e.g., United States v. Gonzalez-Aparicio, 648 F.3d 749, 757 (9th Cir. 2011) ("When the state of the law is unclear at the time of trial and is then clarified by subsequent authority, the district court's error is still not considered plain. . . . Therefore, plain error 'normally means error plain at the time the district court made the alleged mistake.'"); United States v. Mouling, 557 F.3d 658, 664, 384 U.S. App. D.C. 431 (D.C. Cir. 2009) ("We therefore hold that where, as here, the law was unsettled at the time of trial but becomes settled by the time of appeal, the general rule applies, and we assess error as of the time of trial."), cert. denied, 130 S. Ct. 795, 175 L. Ed. 2d 559 (2009).