Appellate Intervention and Issues Not Raised (Part 1)

by | Dec 7, 2018 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On June 18, 2018, the United States Supreme Court decided the case of Rosales-Mireles v. U.S. The principal issue was when a sentencing miscalculation calls for an appeals court to intervene even though the issue was not raised and preserved for appeal.

Writing for a 7-2 majority, Justice Soto-Mayor held in relevant part as follows: Each year, district courts sentence thousands of individuals to imprisonment for violations of federal law. To help ensure certainty and fairness in those sentences, federal district courts are required to consider the advisory United States Sentencing Guidelines. Prior to sentencing, the United States Probation Office prepares a presentence investigation report to help the court determine the applicable Guidelines range. Ultimately, the district court is responsible for ensuring the Guidelines range it considers is correct. At times, however, an error in the calculation of the Guidelines range goes unnoticed by the court and the parties. On appeal, such errors not raised in the district court may be remedied under Federal Rule of Criminal Procedure 52(b), provided that, as established in United States v. Olano, 507 U. S. 725: (1) the error was not “intentionally relinquished or abandoned,” (2) the error is plain, and (3) the error “affected the defendant’s substantial rights,” Molina-Martinez v. United States, 578 U. S. , . If those conditions are met, “the court of appeals should exercise its discretion to correct the forfeited error if the error ‘“seriously affects the fairness, integrity or public reputation of judicial proceedings.”’” Id., at _. This last consideration is often called Olano’s fourth prong.

The issue here is when a Guidelines error that satisfies Olano’s first three conditions warrants relief under the fourth prong. Petitioner Florencio Rosales-Mireles pleaded guilty to illegal reentry into the United States. In calculating the Guidelines range, the Probation Office’s presentence report mistakenly counted a state misdemeanor conviction twice. As a result, the report yielded a Guidelines range of 77 to 96 months, when the correctly calculated range would have been 70 to 87 months.

While it is not a federal crime to unlawfully enter the United States, it is a crime to re-enter after being deported for an unlawful entry. That illegal reentry is the offense for which the petitioner pleaded guilty.