Henderson v. United States
568 U.S. ___ (2013)

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Justia Opinion Summary
The district court increased the length of Henderson’s sentence so he could participate in a prison drug rehabilitation program. Henderson’s counsel did not object to the sentence, but, on appeal, Henderson claimed plain error. While appeal was pending, the Supreme Court decided, in Tapia v. United States, that it is error for a court to impose or lengthen a prison sentence to enable an offender to complete a treatment pro¬gram or otherwise to promote rehabilitation. The Fifth Circuit determined that Rule 52(b) did not give it authority to correct the error, reasoning that an error is “plain” only if it was clear under law at the time of trial. The Supreme Court reversed. Regardless of whether a legal question was settled or unsettled at the time of trial, an error is “plain” under Rule 52(b) if it was plain at the time of appellate review. If “plain error” covers trial court decisions that were plainly correct when made and those that were plainly incorrect when made, it should cover cases where the law was unsettled. A “time of review” interpretation furthers the basic principle that “an appellate court must apply the law in effect at the time it renders its decision,” works little harm upon the competing principle that insists that counsel call a potential error to the trial court’s attention, and is consistent with Rule 52(b)’s purpose of creating a fairness-based exception to the general requirement that an objection be made at trial to preserve a claim of error.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 .

SUPREME COURT OF THE UNITED STATES

Syllabus

HENDERSON v. UNITED STATES

certiorari to the united states court of appeals for the fifth circuit

No. 11–9307. Argued November 28, 2012—Decided February 20, 2013

A federal court of appeals normally will not correct a legal error made in a criminal trial unless the defendant first brought the error to the trial court’s attention. United States v. Olano, 507 U. S. 725 . But Federal Rule of Criminal Procedure 52(b) provides an exception, permitting “[a] plain error that affects substantial rights [to] be considered even though it was not brought to the [trial] court’s attention.”

          Here, the District Court increased the length of petitioner Henderson’s sentence so he could participate in a prison drug rehabilitation program. Henderson’s counsel did not object to the sentence, but, on appeal, Henderson claimed that the District Court plainly erred in increasing his sentence solely for rehabilitative purposes. While the appeal was pending, this Court decided in Tapia v. United States, 563 U. S. ___, ___, that it is error for a court to “impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” While this meant that the District Court’s sentence was erroneous, the Fifth Circuit determined that Rule 52(b) did not give it authority to correct the error. In doing so, it concluded that an error is “plain” under the Rule only if it was clear under current law at the time of trial, but that, in this case, Circuit law was unsettled until Tapia was decided.

Held: Regardless of whether a legal question was settled or unsettled at the time of trial, an error is “plain” within the meaning of Rule 52(b) so long as the error was plain at the time of appellate review. Pp. 3–13.

     (a) The question of whether an error must be plain at the time it is committed or at the time it is reviewed reflects two competing legal principles. The principle that a right may be forfeited in a case if it is not timely asserted before a tribunal having jurisdiction to determine it favors limiting the assessment of plainness to the time of the error’s commission. See Olano, supra, at 731. And the rule that an appellate court must apply the law in effect at the time it renders its decision favors assessing plainness at the time of review. See Thorpe v. Housing Authority of Durham, 393 U. S. 268 . Because neither principle is absolute, the conflict cannot be decided by looking to one rather than the other. The text of Rule 52(b) also leaves open the temporal question. And relevant precedent does not directly answer the question. In Olano, this Court said that Rule 52(b) authorizes an appeals court to correct a forfeited error only if (1) there is an “error,” (2) that is “plain,” (3) that “affect[s] substantial rights,” 507 U. S. 732 , and (4) that “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,’ ” id., at 736. In Johnson v. United States, 520 U. S. 461 , the Court concluded that, where a trial court’s decision was clearly correct under circuit law when made but becomes “clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.” However, neither case addressed what rule should apply where the law is unsettled at the time of the error but plain at the time of review. 507 U. S., at 734, 520 U. S, at 467−468. Pp. 3−6.

     (b) This precedent, when read in light of the underlying background principles, leads to the conclusion that Rule 52(b)’s “plain error” phrase applies at the time of review. If “plain error” covers trial court decisions that were plainly correct when made and those that were plainly incorrect when made, it should cover cases in the middle―i.e., where the law was neither clearly correct nor incorrect, but unsettled, at the time of the trial court’s decision. To hold to the contrary would lead to unjustifiably different treatment of similarly situated individuals, for there is no practical reason to treat a defendant more harshly simply because his circuit’s law was unclear at the time of trial. Even if a “time of error” rule would provide an added incentive to counsel to call a trial judge’s attention to the matter so the judge could quickly consider remedial action, such incentive has little, if any, practical importance since counsel normally has good reasons for calling a trial court’s attention to potential error, e.g., the advantage to counsel and client of having an error speedily corrected. In sum, in contrast to a “time of error” rule, a “time of review” interpretation furthers the basic principle that “an appellate court must apply the law in effect at the time it renders its decision,” Thorpe, supra, at 281; works little, if any, practical harm upon the competing administrative principle that insists that counsel call a potential error to the trial court’s attention; and is consistent with Rule 52(b)’s basic purpose of creating a fairness-based exception to the general requirement that an objection be made at trial to preserve a claim of error. Pp. 6−9.

     (c) The Government’s arguments to the contrary are unpersuasive. Its claim that appellate courts should consider only errors that counsel called to the trial court’s attention and errors that the court should have independently recognized overlooks the way in which Rule 52(b) restricts the appellate court’s authority to correct an error to those errors that would, in fact, seriously affect the fairness, integrity, or public reputation of judicial proceedings. The Government also fears that the holding here will lead to too many “plain error” claims. But, a new rule of law set by an appellate court cannot automatically lead that court to consider all contrary determinations by trial courts plainly erroneous, given that lower court decisions that are questionable but not plainly wrong fall outside the Rule’s scope, and given that any error must have affected the defendant’s substantial rights and affected the fairness, integrity, or public reputation of judicial proceedings. Finally, the Government’s textual argument that Rule 52(b) is written mostly in the past tense, whatever its merits, is foreclosed by Johnson. Pp. 10−12.

646 F. 3d 223, reversed and remanded.

     Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined.

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