In what is arguably dictum, a panel of the Sixth Circuit has adopted a standard for preserving constitutional objections to a sentence. In United States v. Triana, 06a0409p.06, No. 05-3173 (6th Cir. November 2, 2006), (available here), in an opinion written by District Judge Marbley, (sitting by designation), Judge Marbley and Judge Martin found that defense counsel's objection to the "harshness" of Triana's sentence was sufficient to preserve a constitutional objection to the sentence. Judge Ryan, concurred in the result and opinion, except with respect to the standard of review issue. Judge Ryan contended, perhaps correctly, that because the government conceded that even under a "plain error" standard of review, the case should be remanded, the issue of whether Triana preserved his constitutional objection should not have been reached.
Ironically, Mr. Triana was sentenced on January 12, 2005, the day the United States Supreme Court rendered the Sentencing Guidelines advisory in United States v. Booker,125 S. Ct. 738, 747 (2005). On appeal, Triana argued that he should be resentenced in light of Booker. The government argued that his claim was not preserved below and should be considered under the "plain error" standard of review. The defendant argued that his claim should be considered de novo under the "preserved error" standard of review. The panel noted that the Sixth Circuit had not previously considered "what amounts to a timely constitutional objection."
The panel considered, and adopted, the Eleventh Circuit's reasoning in United States v. Candelario, 240 F.3d 1300, 1303-04 (11th Cir. 2001). While Candelario dealt with an objection based on Apprendi v. New Jersey, 530 U.S. 466 (2000), the panel found the reasoning persuasive. The Eleventh Circuit determined that where an objection is not evidentiary in nature, then it can be deemed a constitutional objection especially where the case that raises the constitutional issue is mentioned. In Candelario, defense counsel had objected to the district court's failure to allow the issue of drug weight to go to the jury and had mentioned Apprendi.
In this case, the panel found that Triana's objection to the "harshness" of the Guidelines during his sentencing hearing constituted a timely constitutional objection, even though Booker had not even been decided. First, defense counsel referred to the Booker/Fanfan case, as it was pending a decision. Second, during the sentencing hearing, defense counsel made several evidentiary objections which were clearly distinct from his claim of "harshness." Instead of taking issue with factual interpretations, the "harshness" claim raised a broader constitutional question, according to the panel. Specifically, the objection raised the question of whether defendant's "Guideline sentence was disproportionate to the crime, i.e. harsher than he deserved." Finally, the majority also found significant the defendant's objections to the loss calculations. Joining the Fifth and Eighth Circuits, the majority determined that objections to the loss calculations, in the Booker context was sufficient to preserve a Booker claim.
If there is a practitioner's lesson in this case, it is to always say that the sentence is "harsh" or "disprorportionate to the crime." That way, when the case gets appealed, you can claim you preserved the constitutional error.