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On February 20, 2013, The Supreme Court announced its decision in Henderson v. United States. The question in the case is whether or not, when a criminal defendant’s sentence is plainly erroneous in light of an intervening Supreme Court decision, the “plain error” correction is prohibited under Federal Rule of Criminal Procedure 52(b) because the law was unsettled when the district court imposed the sentence and the defendant failed to object.

In 6-3 decision delivered by Justice Breyer, the Court held that, regardless of whether a legal question was settled or unsettled at the time of trial, an error is “plain” within the meaning of Federal Rule of Criminal Procedure 52(b) so long as the error was plain at the time of appellate review. The decision of the Fifth Circuit was reversed and the case was remanded for further proceedings. Chief Justice Roberts as well as Justices Kagan, Sotomayor, Ginsburg and Kennedy joined the opinion of Court. Justice Scalia filed a dissenting opinion, which Justices Thomas and Alito joined.

To discuss the case, we have Elizabeth Papez, a partner at Winston & Strawn, LLP.

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