Rosales-Mireles v. United States, USSC No. 16-9493, cert granted 9/28/17
In United States v. Olano, this Court held that, under the fourth prong of plain error review, “[t]he Court of Appeals should correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” 507 U.S. 725, 736 (1993). To meet that standard, is it necessary, as the Fifth Circuit Court of Appeals required, that the error be one that “would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge?”
Decision below: United States v. Rosales-Mireles, 850 F.3d 246 (5th Cir. 2017)
Scotusblog page (included links to cert petition and responses; briefs; and commentary)
This is an important case for federal practitioners. Rosales-Mireles argued (and the government agreed) that the district judge had miscalculated his sentence for illegally reentering the country because it double-counted a prior conviction in determining the relevant sentencing guideline range. The court of appeals agreed this was an obvious error that affected Rosales-Mireles’s rights but refused to correct the sentence, holding the error didn’t “seriously affect the fairness, integrity, or public reputation of judicial proceedings” because it didn’t “shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.” 850 F.3d at 250. The standard applied by other circuits (including ours, United States v. Garrett, 528 F.3d 525, 530 (7th Cir. 2008)) suggests the Fifth Circuit demanded more than Olano requires. The Court will have to clarify the proper standard for gauging whether the Olano test has been met.
Wisconsin also has a plain error doctrine, thought it is invoked infrequently (no doubt in part because of the postconviction motion procedure integrated with the direct appeal). See, e.g., State v. Jorgensen, 2008 WI 60, ¶¶20-52, 310 Wis. 2d 138, 754 N.W.2d 77 (see our post here); State v. King, 205 Wis. 2d 81, 87-96, 555 N.W.2d 189 (Ct. App. 1996). Our courts look to federal plain-error case law (including Olano) as persuasive authority, see King, 205 Wis. 2d at 92-93, but the federal cases don’t bind Wisconsin courts’ application of the doctrine. Thus, the Court’s decision in this case won’t automatically change Wisconsin’s doctrine, though it could provide a basis for state courts to expand (or contract) our doctrine in the future.
