At issue in the case of Holguin-Hernandez v. United States is whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence. Daniel Guarnera joined us to discuss the case as presented at oral argument before the Supreme Court on December 10, 2019.
Daniel Guarnera, Associate, Kellogg, Hansen, Todd, Figel & Frederick
Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law and Procedure Practice Group, was recorded on Friday, December 20th.
Micah Wallen: Welcome to the Federalist Society’s teleforum conference call. This afternoon’s topic is a Courthouse Steps Oral Argument teleforum on [Holguin-Hernandez v. United States]. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the expert on today’s call.
Today we’re fortunate to have with us, Daniel Guarnera, who is an Associate at Kellogg, Hansen, Todd, Figel & Frederick. Thank you for sharing with us today. Daniel, the floor is yours.
Daniel Guarnera: Federal courts hand down about 70,000 criminal sentences a year and, unsurprisingly, it’s not uncommon for a defendant to disagree with the sentence in court about what punishment is appropriate under the law.
On December 10th, the Supreme Court heard oral argument, including from a court-appointed amicus in Holguin-Hernandez v. United States, which asked the Court to resolve a lopsided circuit split about exactly what a defendant must do to preserve for appellate review the argument that a sentence is too harsh.
Given the frequency of criminal sentencings and sentencing appeals, criminal practitioners will want to watch this case closely to ensure that they’re preserving their objections and receiving the most favorable possible standard of review on appeal.
A short summary of the development of sentencing law provides helpful context for understanding the issues in this case. In the early and mid-20th century, most states and the federal government followed an indeterminate sentencing model that gave judges broad discretion to decide on sentences. In this model, judges were viewed as having special expertise in crafting individualized punishments designed to rehabilitate offenders. Sentences were constrained only by statutory sentencing ranges and appellate review was highly deferential.
By the late 1970's, however, a bipartisan consensus emerged against indeterminate sentencing, driven both by persistently high rates of crime and recidivism and concerns about racial discrimination and arbitrariness. Advocates settled on a policy solution – sentencing guidelines that constrained judicial discretion.
In 1980, Minnesota became the first state to adopt guidelines, and Congress passed The Sentencing Reform Act in 1984. This statute created the U.S. Sentencing Commission, which was tasked with creating mandatory sentencing guidelines prescribing sentencing ranges for each federal crime.
The Supreme Court upheld the constitutionality of the Commission over Justice Scalia’s memorable dissent in Mistretta v. United States in which he labeled the Commission, “a sort of junior-varsity Congress,” that exercised law-making authority that the Constitution had vested exclusively in Congress. Sentencing decisions were initially reviewed for abuse of discretion on appeal. But Congress later required sentences outside the guideline’s range to be reviewed de novo.
The sentencing world was turned upsidedown in 2005 when the Supreme Court held in United States v. Booker that the guideline’s mandatory nature violated the Sixth Amendment jury right because the guideline’s ranges depended on factual findings made my judges, rather than juries.
For Example, if a jury convicted a defendant of fraud that generally meant that the jury had found each element of the crime had been proven. But it did not answer other questions that fed into the guideline’s calculation, such as the number of victims, the amount of money lost, or the sophistication of the offense.
To remedy this constitutional flaw, the Court held that the guidelines would henceforth, be merely advisory. Judges must still start the sentencing process by calculating the guideline’s range, but they are then free to decide for themselves what sentence, inside the guideline’s range or not, is appropriate.
More specifically, under Section 3553(a) of the Sentencing Reform Act, judges, “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of the subsection.” And paragraph (2) references, in the Act, retribution, deterrence, incapacitation, and rehabilitation.
The idea that judges must impose a sentence that is sufficient, but not greater than necessary, has been labeled the parsimony principle. Section 3553(a) identifies other factors that courts should consider as well, including the nature of the offense, and the need to avoid sentencing disparities. Post Booker, a defendant’s claim that a sentence was unjustified under Section 3553(a) is reviewed for abuse of discretion.
The theory is that district courts know more about the facts of a case than appellate courts, so appellate courts ask, merely, whether the sentence was “substantively reasonable.” According to data from the Commission, in Fiscal Year 2018 there were about 3,200 appeals of an original sentence, and only about 10 of those sentences were reversed or remanded because the appellate court found the sentence substantively unreasonable. It is far more common for appellate courts to find procedural sentencing errors with miscalculations of the guidelines being the most common procedural error, by far.
With this background, let’s turn to the facts of the case. Gonzalo Holguin-Hernandez was on supervised release from an earlier drug offense when he was convicted in the Western District of Texas of drug trafficking. He was sentenced to five years in prison for that crime, and the government then moved to revoke his supervised release. The sentencing guidelines called for Holguin-Hernandez to receive a 12- to 18-month sentence for having his supervised release revoked, to be served consecutively to his five-year sentence.
Holguin-Hernandez's lawyer argued that his sentence should be zero months, or at least less than 12 months because the five-year sentence he’d already received would sufficiently deter him from committing future crimes, and because Holguin-Hernandez had committed his drug crime out of economic necessity, and under threat from a cartel. The court was not convinced, and sentenced Holguin-Hernandez to 12 months in prison, to run consecutive to his 5-year term. After imposing the sentence, the court asked Holguin-Hernandez’s lawyer if she had anything further to say, and she answered, “no.”
Holguin-Hernandez appealed his sentence. In any circuit other than the Fifth, the fact that Mr. Holguin-Hernandez’s lawyer had argued for a sentence lower than the one he ultimately received would have been sufficient to preserve the argument that the court’s sentence was in error. This would have allowed the appellate court to review the substantive reasonableness of the sentence under an abuse of discretion standard.
But the Fifth Circuit is an outlier. The Fifth Circuit holds that it is not enough for a defendant to argue for the sentence that, in the defendant’s view, is sufficient but not greater than necessary under Section 3553(a). The defendant also must object that the sentence that the court actually imposed was substantively unreasonable. So even though Holguin-Hernandez’s lawyer said that she thought zero months was reasonable, under Fifth Circuit precedent, the lawyer should have objected that the 12-month sentence actually imposed was substantively unreasonable and explained why.
Now the failure to raise this post-sentencing objection does not mean that Holguin-Hernandez’s sentence was entirely unreviewable. Rather, under Federal Rule of Criminal Procedure 52(b), a claim of sentencing error that was not preserved through a timely objection is reviewed for plain error. In theory, this is a slightly more deferential standard than abuse of discretion, though as we’ll see, some of the justices seemed to doubt that there’s an actual difference.
In Holguin-Hernandez’s case, the Fifth Circuit held that there was no plain error given that the sentence was within the guideline’s range. The Stanford Law School Supreme Court Clinic got involved in Mr. Holguin-Hernandez’s case, and the Court granted cert on the following question, “Whether a criminal defendant, who argues in the district court for a lower sentence, must formally object after pronouncement of his sentence to preserve a claim for appeal that his sentence is substantively unreasonable."
The Solicitor General agreed with Holguin-Hernandez, that the Fifth Circuit approach is incorrect. So the Court appointed an amicus, K. Winn Allen from Kirkland & Ellis, to defend the Fifth Circuit opinion. Petitioner and the government raised three main arguments against the Fifth Circuit’s approach. The first is that the Fifth Circuit rule is simply incompatible with Federal Rule of Criminal Procedure 51. Rule 51(b) says, “A party may preserve a claim of error by informing the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party’s objection to the court’s action and grounds for that objection.”
Petitioner and the government emphasize that Rule 51(b) says that a party can inform the court of its preferred action, either when the ruling is sought or, disjunctively, the party can object after the court takes action. But you don’t need to do both. In their view, because Holguin-Hernandez explained to the judge why a zero-month sentence was appropriate, his claim is preserved, because he informed the court when the sentencing order was sought of the action he wished the court to take – here, to impose a zero-month sentence.
Petitioner and the government note that rule 51(a) reinforces this interpretation. Rule 51(a) says that “exceptions to rulings or orders of the court are unnecessary.” According to Black's Law Dictionary an exception is an objection made after an initial objection or proffer is made and overruled. Exceptions date from common law practice in 12th century England where, typically, the only material that was available for an appellate court to review was the final judgment itself. This prevented meaningful appellate review in many cases. So courts allowed parties to preserve prejudgment objection for appeal by filing bills of exceptions that listed and described the courts prejudgment legal and factual errors.
However, the need for bills of exceptions waned as new technology allowed court proceedings to be transcribed, which created a robust record for appellate courts to review. When the Federal Rules of Civil Procedure were adopted in 1938 and then the Federal Rules of Criminal Procedure in 1944, both held that exceptions were no longer necessary. According to petitioner and the government, a rule that required a defendant to object after a judge rejected, and thus effectively overruled a proposed sentence, amounts to an exception.
The second main argument advanced by petitioner and the government is that the Fifth Circuit rule confuses the role of the sentencing judge and that of an appellate court. In their view, the job of the sentencing judge is to apply the parsimony principle and identify the sentence that, in the judge’s view, is sufficient but not greater than necessary to serve the purposes of sentencing in Section 3553(a). In other words, the sentencing judge’s job is to identify the single best sentence, all things considered.
In contrast, on appeal, the job of the appellate court is not to identify the single best sentence, in the appellate court's view, but rather to decide whether the sentence is within a range of sentences that can be described as substantively reasonable. Petitioner and the government argue that it therefore makes no sense to ask a sentencing judge to determine, in the first instance, whether the sentence he or she imposed is within a reasonable range, because that question only arises on appeal.
The petitioner argues that there's no other area of law in which a party has to advise a trial court that it has violated the appellate standard of review. For example, if a party objects to the admissibility of a piece of evidence, and the court overrules that objection, the party does not have to say, “Your Honor, by overruling my objection you have to abused your discretion.” And that's true even, if on appeal, the question would be framed as whether the district courts evidentiary decision was an abuse of discretion.
The third main argument by petitioner and the government is that there's no practical value in requiring a separate objection to the substantive reasonableness of a sentence. Because typically the defendant would have just informed the court of his or her preferred sentence, and the reasons for that sentence, minutes before the substance of reasonableness objection would have to be lodged. In fact, Petitioner says that there's no example of a court in the Fifth Circuit, changing its sentence in light of a substance of reasonableness objection made after sentencing.
The court-appointed amicus’s primary argument in response, is that there are really two separate inquiries at sentencing, and an objection to each is required in order to present the court with fair notice of the defendant’s concerns. First, a defendant must offer his or her preferred sentence. And then second, once the sentence is imposed, the defendant must separately explain to the court exactly why, in light of the sentencing factors and relevant facts and circumstances, the sentence that was imposed is just outside the range of reasonable sentences that section 3553(a) allows. The reasons why the defendant prefers one sentence, and the reasons that an actual sentence is outside the range of reasonableness could, in theory, be different.
In other words, a defendant’s argument for why the district court should impose a given sentence might be different from the question of whether the judge could impose the sentence. Without a contemporaneous objection to the substantive reasonableness of the sentence, amicus argues, the appellate court might hear arguments raised for the first time on appeal that the district court never had the chance to consider. This is consistent with the purpose of the default rule that objections must be made contemporaneously to ensure that a court has the best possible arguments and information before making a ruling.
The amicus also argued that the Fifth Circuit rule creates consistency between substantive and procedural errors at sentencing, since the Supreme Court has held that procedural errors must be objected to in the district court at the time they occur, if they were to be preserved.
Oral arguments were held on December 10th. Many of the justices' questions focused on understanding the real-world effects of the party's position, and to understanding where in fact the parties disagreed. The second issue was caused, in part, by the parties focus on different aspects of the question presented. The petitioner emphasized the timing of the Fifth Circuit’s objection requirement, which the question presented described as “after” the sentence is imposed. At oral argument, the amicus conceded that a rule requiring an objection after sentencing could not be squared with Federal Rule of Criminal Procedure 51(b). Instead, the amicus focused on exactly what information had to be included in an objection, and whether a simple argument for a shorter term, as the question presented put it, was sufficient on its own to preserve an objection to the sentence.
The government took a middle ground of sorts, and agreed that a defendant who advocates for a shorter sentence, preserves the general substantive objection to the subsequent imposition of a longer sentence, by asking for his or her preferred sentence. But the government also insisted that if a defendant should receive nearly plain error review for any specific argument about why a shorter sentence was required, if that argument was not advanced at the time of sentencing.
Holguin-Hernandez was represented by Kendall Turner, a counsel at O’Melveny & Myers, who was making her Supreme Court debut. Justice Alito asked a few questions about whether there's anything preventing a defendant from arguing that he or she thought one sentence would be best, but a range would be reasonable. Ms. Turner said that it would depend, but in general, if a defendant said any sentence within a range would be reasonable, perhaps he or she would not have preserved the argument that the sentence should have been the low end of the range.
Justice Sotomayor pointed out that the amicus seemed primarily concerned with ensuring that defendants give notice to the court of the reasons a sentence is appropriate under 3553(a), not the timing of the objection. Ms. Turner responded that in reality, defense counsel always gives reasons for their preferred sentence. Justice Sotomayor, the only former district court judge on the court commented, “I agree with you, it never happened in my experience."
Ms. Turner's response was that the ordinary fair notice standards for preserving objections should apply at sentencing, and that that question is heavily fact-bound and context-dependent, as well as being outside the question presented.
Assistant to the Solicitor General, Morgan Ratner, argued on behalf of the United States. As I mentioned, she focused on delineating the scope of the government's argument and emphasized that an argument pre-sentencing for a particular sentence does not preserve either subsequent procedural errors, such as a judge's failure to explain the reasons for the sentence, or specific reasons the sentence might be substantively unreasonable, if the defendant did not in fact, advance those reasons in the district court. In other words, like the amicus, the government thought that new arguments raised on appeal for why a sentence was substantively unreasonable would be reviewed only for plain error on appeal.
During questioning, Justice Kavanaugh drew from his experience reviewing sentencing appeals and noted that, “In my experience, a substantive unreasonableness claim is almost always coupled with a procedural failure to explain claim. An objection for failing to explain a court’s reasons for a sentence often merges substantive and procedural issues.” Ms. Ratner acknowledged that even if this is so, a defendant must make a specific objection to his procedural claim, which can only happen after the error actually occurs. The same defendant could, however, make a substantive claim based on the reasons given for his or her preferred sentence, which would be reviewed for abuse of discretion.
Justice Kavanaugh also pointed out that even substantive sentencing errors that are not preserved still get reviewed by appellate courts, albeit under on a plain error standard of review. He said, referring to substantive reasonableness, “when you actually apply it in practice,” it is a lot like plain error. He added that, “I'm not sure how a judge can keep all that straight,” and he followed up by asking, “Can you imagine a sentence that’s substantively unreasonable, but not plain error?” Ms. Ratner answered that there's, “a small sliver of daylight between the two standards,” and the amicus later agreed that the functional difference between the two standards was quite small.
In response to questions about how a judge should evaluate the substantive reasonableness of a sentence when some arguments are preserved and others are not, Ms. Ratner explained that appellate courts will often assume that all arguments had been preserved if it would make no difference to their ruling. Alternatively, courts could look at the preserved issues first, and then examine whether any of the unpreserved issues would make the court doubt the reasonableness of a sentence.
Justice Sotomayor asked the government, "How do we write this opinion, which is one of the questions oral arguments most hope to receive, because the premise is that the Court agrees with you on the law." Justice Sotomayor seemed to want to know whether it was enough to simply say that the Fifth Circuit test was too inflexible, or did the Court have to say something about exactly what a defendant had to say at sentencing to preserve an argument. Ms. Ratner answered that there would be, “significant value in the Court offering some clarity” about which arguments are or are not preserved. And on the other hand, she warned that there could be some potential for confusion, depending on the way the Court addressed this issue.
As I mentioned, K. Winn Allen argued as the court-appointed amicus in favor of the Fifth Circuit’s rule, and this was his first Supreme Court oral argument. Justice Kavanaugh started the questioning by asking why, as a practical matter, should advocates have to make an argument that is not going to have any effect, and he returned to the theme later pointing out that most of the grounds for a given sentence will have been identified in the sentencing memos and at the sentencing hearing; and if they've all been identified there, do you have to raise them again. Mr. Allen answered no, as long as arguments about the maximum reasonable sentence are made somewhere, that is enough.
Justice Kagan pressed Mr. Allen on the timing of the objection, and he conceded that Rule 51 does not require objections to be made after the sentencing decision. Justice Kagan later asked whether amicus’ position carried over to other objections, i.e., whether parties had to object to that every adverse decision by a district court was an abuse of discretion, or clear error. Mr. Allen said no, sentencing is different because of the “guided nature” of the court’s discretion, and a special obligation the court has to explain its decisions under the Sentencing Reform Act.
During petitioner’s rebuttal, Justice Sotomayor pressed Ms. Turner to identify the differences between petitioner’s position, and the government’s. And Ms. Turner said that, "we both agree that the fair notice standard applies, but we might find more arguments at fair notice than the government is willing to concede." She added that, while a defendant needs to preserve the legal grounds on which he or she is relying, every fact and circumstance need not be explicitly referenced. But it is not entirely clear how this is different from the government's position, or what the doctrinal source of those differences is.
In light of the oral argument, I think the most likely outcome will be a narrow opinion reversing the Fifth Circuit’s rule and clarifying that a defendant’s request for a specific sentence is sufficient as a general matter to preserve a substantive objection to the longer sentence.
It is more difficult to predict whether the Supreme Court will try to venture into providing additional guidance, as the government requested, about what fair notice requires when preserving specific arguments about why a sentence is unjustified. It's also unclear whether the Court will address anything about the distinction between plain error review and substantive reasonableness. Certainly, defense counsel and prosecutors will want to review the opinion carefully when it is released to ensure that they're doing everything possible to preserve sentencing arguments for appeal.
Micah Wallen: Thank you, Daniel. And on behalf of The Federalist Society, I'd like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at email@example.com. Thank you all for joining us. We are adjourned.
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