Split Noted: What Standard Applies to Determine if Defendant’s Substantial Rights Were Affected When Reviewing for Plain Error?

Per United States v. Rojas-Luna, 2008 WL 788611, *7-*8 (5th Cir. Mar. 26, 2008)

I can’t add anything to Fifth Circuit Blog’s extended summary of the case, without which I would not have found the opinion. For a discussion of the relevant facts and law, please click on that link, I will only briefly outline the circuit split the decision notes.

When a error goes unobjected to at trial, appellate courts will review only for plain error. In order to prove plain error, four elements must be met – there must be (1) an error, (2) that is clear or obvious, (3) that affects substantial rights, and (4) that would effect the fairness, integrity, or public reputation of judicial proceedings.

In this case, the Fifth Circuit examines a sentencing enhancement to see if the erroneous application thereof effected Rojas-Luna’s substantial rights (element 3). In order to satisfy element three in the Fifth Circuit, all an appellant need show is that it affected the outcome of the proceedings below. The panel notes that the Ninth Circuit applies a more stringent test, requiring the defendant to raise reasonable doubt that a rational jury would have found him guilty if the error had been absent.

This split results in opposite results in two factually indistinguishable cases. The CA 5 vacates an enhanced sentence and remands, whereas the CA 9 affirms. That is not a typo – it is easier to prove plain error in the CA 5 than the CA 9. It will be interesting to see if the government pursues cert on this issue – the presence of factually indistinguishable cases reaching contradictory results certainly might help get it granted and the court seems more friendly to its position in this case.