Fifth Circuit Holds That Sentencing Guidelines Error can Meet Plain Error Analysis

In United States vs. Qunitero,  No. 17-20727 the Fifth Circuit held that an error in the sentencing guidelines could meet the plain error analysis.

Quintero pled guilty to illegally re-entering the U.S. He wasoriginally scheduled for sentencing under the 2015 Guidelines, but was delayedto December after the 2016 Guidelines Manual had gone into effect. Quintero successfullyappealed to the Fifth Circuit. He was resentenced on November 1, 2017, underthe 2016 Guidelines but received an enhancement for a “crime of violence” under2L1.2(b)(1)(A)(ii) of the 2015 Guidelines. (Note: the 2016 Guidelines do nothave the crime of violence sentencing enhancement under 2L1.2(b)(1)(A)(ii)).Quintero raised an ex post facto challenge. At the time of Quintero’s illegalre-entry, the 2015 Guidelines were in place and, since of the recent decisionin United States v. Herrold, would have resulted in a lower sentencing range. Herroldinvalidated the use of prior Texas burglary convictions to apply the2L1.2(b)(1)(A)(ii) enhancement in the 2015 Guidelines. Without the enhancement,the respective ranges of the 2015 and 2016 Guidelines are no longer identical:the 2015 range becomes lower because the 2016 Guidelines do not include theenhancement.” (internal citations omitted)

The government argued that Quintero was prevented from raising an ex post facto challenge because of the “‘law of the case’ doctrine, the ‘invited error’ doctrine and the ‘forfeiture doctrine.’”

The court explained that the “law of the case” doctrine means that “an issue of fact or law decided on appeal may not be reexamined . . . by the appellate court on subsequent appeal.”  But since Quintero had never raised his ex post facto argument in the initial appeal and since the court hadn’t ruled on it, that the issue had not been “decided on appeal.”

The court also indicated that the “invited error” doctrine failed.That doctrine prohibits a defendant from “complain[ing] on appeal of errorsthat he himself invited or provoked the district court to commit.” The doctrinealso applies when a defendant intends to “convince the district court to [dosomething] it would not otherwise have done.” In this case, when the courtasked if the 2016 guidelines applied, Quintero’s counsel said “yes yourhonor.”  The court held that this is notaffirmative persuasion and provocation that the doctrine applies to. Thus the‘invited error’ doctrine does not apply to this case. 

While Quintero did not object, he did not waive the ex post facto argument. So the court reviewed the issue under plain error. For plain error, Quintero must prove
“(1) there was error;
(2) the error was plain and obvious;
(3) the error affected [his] substantial rights; and
(4) the court should exercise its discretion to reverse because the plain error seriously affected the fairness, integrity, or public reputation of the judicial proceeding.”

With regard to plain error, Quintero indicated that the error is the violation of the ex post facto clause.  After Herrold, which invalidated the use of prior Texas burglary convictions to “apply the 2L1.2(b)(1)(A)(ii)enhancement in the 2015 Guidelines.”  Without the enhancement, the range of the 2015 Guidelines becomes lower. The district court erred by applying the2016 Guidelines and it was plain and obvious. As a result, the first two prongs of plain error were met. 

The court also said that the error affected Quintero’s substantial rights. “A defendant can show that his substantial rights were affected if he demonstrates a reasonable probability that he would have received a more favorable sentence in the absence of the district court’s misapplication of theGuidelines.”  Further, “Where the error is assessing a sentence under the incorrect Guidelines range, “the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.”

Without the 2L1.2(b)(1)(A)(ii) enhancement, the 2015 Guidelines would yield a sentencing range of 24-30 months, 16-22 months less than whatQuintero received. Plus, the government did not shown that the court would sentence Quintero to 46 months again. 

Finally, “An error affecting a defendant’s Guidelines range ordinarily will satisfy [the] fourth prong” of the plain error analysis.” While the district court may impose any sentence on resentencing, Quintero has served in excess of the 2015 Guideline range. Thus satisfying the fourth criteria of plain error. 

The Fifth Circuit vacated the sentence and remanded back down to the district court. No. 17-20727

JEREMY’S NOTES:  Although this is a rare situation, it is an example of plain error with regards to an error affecting a defendant’s Guidelines range ordinarily will satisfying [the] fourth prong of the plain error analysis. This case also shows an example of an ex post facto claim with regard to the Sentencing Guidelines. 

If you have an ex post facto claim with regards to the sentencing guidelines or other type please reach out to our office to talk to us about doing a case review.