Friday, July 18, 2014

En banc Court adopts “new rule” requiring a defendant to raise any procedural objection to a sentence after sentence is imposed

United States v. Flores-Mejia, No. 12-3149, 2014 WL 3450938 (July 16, 2014)

Overruling United States v. Sevilla, 541 F.3d 226 (3d Cir. 2008), the en banc Court held that procedural error at sentencing is preserved only if a party objects after sentence is imposed or at the time that the procedural error becomes evident.  The Court explained that it was adopting this new rule for several reasons:

(1)  Unlike a substantive objection to a sentence, a procedural defect in a sentence may not occur until the sentence is pronounced;

(2)  Objecting to a procedural error after sentence is pronounced will promote judicial efficiency because it allows a sentencing court to correct or avoid a mistake;

(3)  Requiring that a procedural objection be made at the time sentence is pronounced prevents “sandbagging” of the court by a defendant who raises an error on appeal while remaining silent at the sentencing hearing.

 In Flores-Mejia’s case, defense counsel raised several grounds for departures and variances in a sentencing memorandum and at the sentencing hearing.  One of the grounds raised was that Flores-Mejia’s cooperation with the government warranted a reduced sentence.  After hearing argument on this issue from both parties, the district court stated: “Okay, thanks.  Anything else?”  Neither party replied, and the parties proceeded to sum up their positions on sentencing.  The court then imposed sentence.

On appeal, Flores-Mejia contended that the district court committed procedural error in failing to sufficiently consider his argument that his cooperation warranted a lower sentence.  A panel of the Third Circuit agreed, relying upon Sevilla.  Upon the government’s request, the Third Circuit granted en banc review.   

Based upon the “new rule” adopted by the en banc Court, Flores-Mejia did not preserve the procedural error issue for appeal.  However, the Court decided not to apply the rule retroactively to Flores-Mejia.  Using an abuse of discretion standard, the Court concluded that the district court record did not reflect meaningful consideration of Flores-Mejia’s cooperation argument, and remanded the matter for resentencing.         

Judge Greenaway dissented, joined by Judges Smith, Shwartz, and Sloviter, and in part by Judge Fuentes.  The dissent takes the majority to task for creating a new rule of procedure, “without intervening Supreme Court precedent and without a majority of our sister courts,” “that flies in the face of Fed. R. Crim. P. 51.”  According to Judge Greenaway, the majority’s “fundamental change to our sentencing procedures . . . is both unwarranted and difficult to square with the Supreme Court’s post-Booker jurisprudence.”  The “new rule” will force busy district courts to sit through “an objection—probably formulaic—in every criminal case.”  Recognizing that sentencing hearings are “highly charged and fraught with emotion,” the dissent asserts that “[i]t  is unwise to burden counsel to engage in a reasoned analysis of the district court’s sentencing explanation and then interpose an objection that was already asserted, all while attending to an emotional client and raising residual issues, like surrender dates and places of incarceration.”  

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