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Fifth Circuit Holds Law Settled During Appeal May Be Used As Clear Error

Fifth Circuit Holds Law Settled During Appeal May Be Used As Clear Error

 

The Fifth Circuit Court of Appeals held that law that becomes settled while an appeal is pending may be used as a ground for appeal even if no objection was raised at trial provided there is clear error.

 

Jose Miguel Escalante-Reyes was convicted of illegal re-entry under 8 U.S.C. § 1326. During the sentencing, the judge repeatedly referred to the anger Escalante-Reyes had and his need for anger management while in prison, ultimately giving this as one of two reasons for sentencing him to 60 months. At the time of his trial, it was unclear that a federal judge could not consider the need for a rehabilitation program when determining the sentence of a federal criminal defendant. However, in Tapia v. United States, 131 S.Ct. 2328 (2011), decided while his appeal was pending, the Supreme Court clarified that a judge could not do so.

 

Escalante-Reyes raised the Tapia issue as an unobjected-to error in his appeal. An error which was not objected to when the error occurred at trial can only be considered by a court of appeals if it constitutes "plain error," error which should be easily apparent to a judge without the need for an objection, and affects substantive rights. To decide the appeal, the Fifth Circuit first had to decide whether to apply the law in effect at the time of the trial or the law in effect at the time of the appeal to the plain error.

 

The Fifth Circuit noted that its own past opinions on this issue had been inconsistent. For that reason, the case was heard en banc so that the new opinion would become the definitive law of the circuit. The court also noted that its oldest opinion and the vast majority of the opinions of the other circuit courts of appeals held that the law in effect at the time of the appeal applied. That was also the holding of the en banc Fifth Circuit.

 

Because of Tapia, the error in considering the anger management program available in prison when determining the sentence was clear or obvious, making it plain error. The court also found that Escalante-Reyes had not intentionally abandoned his right to not have the rehabilitation considered at sentencing and that the error affected his substantive rights in that the anger management program was central to the sentencing. Finally, the court found that there was no other evidence in the record that the sentence was "fair" or that the "integrity or public reputation" of the judiciary was protected despite the trial court having erroneously considered Escalante-Reyes' need for anger management.

 

Therefore the sentence was vacated and the case remanded to the trial court for resentencing. The court was split 10-6 with three separate dissenting opinions. See: United States v. Escalante-Reyes, 689 F.3d 415 (5th Cir. 2012).

 

Following remand, the district court sentenced Escalante-Reyes to 35 months in prison, and ordered that he be deported.

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Related legal cases

United States v. Escalante-Reyes

Tapia v. United States