July 26 (Reuters) - Can a criminal defendant reap the
benefits of a change in the law that happens while his case is
pending on appeal?
The New Orleans-based 5th U.S. Circuit Court of Appeals said
yes on Wednesday in a splintered en banc decision. The court
joined the majority of other circuits that consider the law as
it existed at the time of appeal rather than at the time of
In March 2011, Jose Escalante-Reyes pleaded guilty to
re-entering the country illegally. On appeal, Escalante-Reyes
argued that the district court should not have considered his
need for anger management courses when it sentenced him to five
years in prison. He asked the 5th Circuit instead to apply the
Supreme Court's June 2011 ruling in Tapia v. United States,
which came down after his sentencing. Under Tapia, courts cannot
impose or lengthen a prison term to allow an offender to
complete a treatment program.
Normally, a party must object to a trial court's mistake
when it occurs in order to raise the issue on appeal. Where a
defendant fails to object, the appeals court applies the tougher
standard, analyzing whether the mistake was a so-called "plain
Judge Catharina Haynes, writing for a 10-judge majority,
noted that the country's circuit courts are split on the issue
of whether to apply the new law, as clarified at the time of
appeal, in determining whether an error was "plain." The San
Francisco-based 9th Circuit and the DC Circuit in Washington
apply the time-of-trial standard, while the 1st, 2nd, 10th and
11th circuits consider the law at the time of appeal.
The majority concluded that the time-of-appeal test was more
practical. "Instead of ... potentially applying law we now know
to be incorrect, we can simply apply the law as it is and
determine whether the error is plain," Haynes wrote, noting that
the purpose of appellate review was to "do justice."
But six judges criticized the majority's approach in three
separate dissents, arguing that only the most egregious
forfeited errors should be corrected on appeal. Escalante-Reyes'
sentence was below the guideline range, they noted.
"If left uncorrected, would this five-year sentence shock
the public's conscience and cause fair-minded men and women to
lose confidence in our judicial system? The answer to these
questions is 'No,'" Judge Jerry Smith wrote in one dissent.
Until now, three-judge panels from the 5th Circuit have been
inconsistent in choosing whether to apply old or new law. One
panel in 2011 upheld another defendant's five-year sentence that
was set above the guideline range to allow for what the judge
called necessary drug treatment, applying the law that existed
at the time of trial. The Supreme Course agreed to review that
case, Henderson v. United States, in its next term.
"Obviously, we're very happy," said Escalante-Reyes' lawyer
Timothy Crooks of the 5th Circuit's en banc ruling. "It's
tempered by the fact that we know the Supreme Court will have
the final say in Henderson," he added.
The U.S. Attorney's Office for the Southern District of
Texas did not immediately respond to a request for comment.
The latest case from the 5th Circuit is USA v.
Escalante-Reyes, No. 11-40632.
For the federal government: Eileen Wilson and Renata Gowie
of the U.S. Attorney's Office for the Southern District of
For Escalante-Reyes: Timothy Crooks Office of the Federal
(Reporting By Terry Baynes)
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