Friday, March 18, 2011

Plain-Error Review: Object in Bold Colors

Yes, we know the lesson, but once again we are reminded of the importance of preserving our issues for appeal.

United States v. Dumas, No. 10-3013 (6th Cir. Mar. 16, 2011) (unpublished). Panel of Judges Gilman, Gibbons, and Cook.

Supervised release revocation.


D got ten months for violating conditions of SR by failing to attend substance-abuse treatment and testing positive for cocaine.

After district court delivered its sentence, it asked whether there were any legal objections. Defense counsel objected to the length of the sentence, requesting more supervised release instead. District court asked counsel to clarify whether the objection was on procedural or substantive grounds. Counsel replied that the objection was that the sentence was "substantively unreasonable." Addressing the objection, the district court explained further the appropriateness of the sentence chosen and the necessity of imprisoning the defendant.


D appealed procedural and substantive reasonableness of sentence.

He argued that the district court neglected his mitigation arguments, that the court violated his due process rights under Rule 32.1(a)(3) by questioning him without informing him of his right to a hearing, and that his waiver of a revocation hearing under Rule 32.1 was not valid. Because the defendant did not raise these alleged procedural errors in the district court after an invitation to do so, review was for plain error.

Appellate court found that "This standard of review poses a problem for [the defendant]." Defendant failed to argue that the alleged errors were plain, affected substantial rights, and seriously affected the fairness/integrity/reputation of the judicial proceedings. Court clarifies that even if the defendant had properly formulated the plain-error arguments his claims would fail. Court found that the district court considered the mitigating arguments. The second alleged error did not affect the defendant’s substantial rights: even if the court violated Rule 32.1 when it questioned the defendant before he waived his right to a hearing, such a violation did not necessarily affect the ultimate sentence. And even if his waiver of a hearing was invalid under Rule 32.1, any error would be harmless. The defendant did not contest his drug use and the evidence was against him.

In terms of substance, the ten-month sentence was reasonable. The defendant evaluated the circumstances and applied the § 3553(a) factors. The defendant had continued using drugs despite the district court’s prior leniency. The sentence was within the guideline range.

Moral of the story: object with specificity! Don’t lose procedural objections in the district court. And if you do face plain-error review, argue with specificity that the error was plain. Yes, it's something we all know, and it may be hard "on the fly," but it's always good to be reminded.

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