884 F.3d 302
5th Cir.2018Background
- This is a dissent from the denial of rehearing en banc in United States v. Marroquin, 874 F.3d 851 (5th Cir. 2017), challenging the panel's plain-error analysis.
- Marroquin sought plain-error relief for the district court’s sentencing calculation involving interpretation of a North Carolina statute used to calculate criminal-history points.
- The panel granted relief under the four-prong plain-error test from Puckett v. United States, but Judge Smith (joined by Judges Jones and Ho) dissented from the denial of en banc rehearing.
- The dissent argues the panel misquoted and relaxed the fourth prong of Puckett (omitting “seriously,” changing “of judicial proceedings” to “of the proceeding,” and dropping “public”), thereby lowering the standard for extraordinary relief.
- The dissent further contends Marroquin fails the second prong (error not "plain" given circuit precedent) and the third prong (burden improperly shifted to the government), and that the fourth-prong finding was conclusory and unsupported by the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper articulation of Puckett fourth prong | Panel correctly applied Puckett to grant relief | Panel misstated Puckett by omitting “seriously,” altering “of judicial proceedings,” and dropping “public” | Dissent: panel misstated and softened the fourth-prong standard; en banc review warranted |
| Whether the error was "plain" (second prong) | Error in applying state statute to criminal-history points was clear | Error not clear given prior Fifth Circuit authority (Rodriguez‑Prieto); reasonable dispute exists | Dissent: error is not plain because conflicting Fifth Circuit language made the issue debatable |
| Which party bears burden on prejudice (third prong) | Panel treated government as failing to show lack of prejudice | Marroquin contends the Guidelines error affected substantial rights | Dissent: panel improperly shifted burden to government; defendant must show prejudice |
| Whether error "seriously" affected fairness/integrity (fourth prong) | Panel found the error created doubt about integrity and warranted relief | Government argued sentence and record do not show serious harm to public reputation or integrity | Dissent: panel’s conclusory fourth-prong finding unsupported; relief inappropriate |
Key Cases Cited
- Puckett v. United States, 556 U.S. 129 (2009) (articulates four‑prong plain‑error test and requires the error to "seriously" affect fairness, integrity, or public reputation of judicial proceedings)
- United States v. Olano, 507 U.S. 725 (1993) (framework for forfeited‑error review referenced in Puckett)
- United States v. Davis, 720 F.3d 215 (4th Cir. 2013) (interpreted North Carolina statutory scheme in a way favorable to the defendant)
- United States v. Marroquin, 874 F.3d 851 (5th Cir. 2017) (panel opinion granting plain‑error relief; dissent argues the opinion misstates and misapplies plain‑error doctrine)
- United States v. Rosales‑Mireles, 850 F.3d 246 (5th Cir. 2017) (case concerning fourth‑prong methodology; cert. granted by Supreme Court)
- Anders v. California, 386 U.S. 738 (1967) (procedure for appointed counsel to seek withdrawal when appeal is frivolous)
- United States v. Heredia‑Holguin, 823 F.3d 337 (5th Cir. 2016) (discusses en banc procedural and mootness issues)