Rosales-Mireles v. United States , 201 L. Ed. 2d 376 ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
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, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ROSALES-MIRELES v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 16–9493. Argued February 21, 2018—Decided June 18, 2018
Each year, district courts sentence thousands of individuals to impris-
onment 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 presen-
tence investigation report to help the court determine the applicable
Guidelines range. Ultimately, the district court is responsible for en-
suring the Guidelines range it considers is correct. At times, howev-
er, 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 Pro-
cedure 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 de-
fendant’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 judi-
cial 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. Rosales-Mireles did not ob-
2 ROSALES-MIRELES v. UNITED STATES
Syllabus
ject to the error in the District Court, which relied on the miscalcu-
lated Guidelines range and sentenced him to 78 months of imprison-
ment. On appeal, Rosales-Mireles challenged the incorrect Guide-
lines range for the first time. The Fifth Circuit found that the
Guidelines error was plain and that it affected Rosales-Mireles’ sub-
stantial rights because there was a “reasonable probability that he
would have been subject to a different sentence but for the error.”
The Fifth Circuit nevertheless declined to remand the case for resen-
tencing, concluding that Rosales-Mireles had not established that the
error would seriously affect the fairness, integrity, or public reputa-
tion of judicial proceedings because neither the error nor the result-
ing sentence “would shock the conscience.”
Held: A miscalculation of a Guidelines sentencing range that has been
determined to be plain and to affect a defendant’s substantial rights
calls for a court of appeals to exercise its discretion under Rule 52(b)
to vacate the defendant’s sentence in the ordinary case. Pp. 6–15.
(a) Although “Rule 52(b) is permissive, not mandatory,” Olano, 507
U.S., at 735, it is well established that courts “should” correct a for-
feited plain error affecting substantial rights “if the error ‘seriously
affect[s] the fairness, integrity or public reputation of judicial pro-
ceedings,’ ” id., at 736. Like the narrow rule rejected in Olano, which
would have called for relief only for a miscarriage of justice, the Fifth
Circuit’s shock-the-conscience standard too narrowly confines the ex-
tent of the court of appeals’ discretion. It is not reflected in Rule
52(b), nor in how the plain-error doctrine has been applied by this
Court, which has reversed judgments for plain error based on inad-
vertent or unintentional errors by the court or the parties below and
has remanded cases involving such errors, including sentencing er-
rors, for consideration of Olano’s fourth prong. The errors are not re-
quired to amount to a “powerful indictment” of the system. The Fifth
Circuit’s emphasis on the district judge’s “competence or integrity”
also unnecessarily narrows Olano’s instruction to correct an error if it
seriously affects “judicial proceedings.” Pp. 6–8.
(b) The effect of the Fifth Circuit’s heightened standard is especial-
ly pronounced in cases like this one. An error resulting in a higher
range than the Guidelines provide usually establishes a reasonable
probability that a defendant will serve a prison sentence greater than
“necessary” to fulfill the purposes of incarceration, 18 U.S. C.
§3553(a). See Molina-Martinez, 578 U. S., at ___. That risk of un-
necessary deprivation of liberty particularly undermines the fairness,
integrity, or public reputation of judicial proceedings in the context of
a plain Guidelines error because Guidelines miscalculations ulti-
mately result from judicial error, as the district court is charged in
the first instance with ensuring the Guidelines range it considers is
Cite as: 585 U. S. ____ (2018) 3
Syllabus
correct. Moreover, remands for resentencing are relatively inexpen-
sive proceedings compared to remands for retrial. Ensuring the ac-
curacy of Guidelines determinations also furthers the Sentencing
Commission’s goal of achieving uniformity and proportionality in sen-
tencing more broadly, since including uncorrected sentences based on
incorrect Guidelines ranges in the data the Commission collects could
undermine the Commission’s ability to make appropriate revisions to
the Guidelines. Because any exercise of discretion at the fourth
prong of Olano inherently requires “a case-specific and fact-intensive”
inquiry, Puckett v. United States, 556 U.S. 129, 142, countervailing
factors may satisfy the court of appeals that the fairness, integrity,
and public reputation of the proceedings will be preserved absent cor-
rection. But there are no such factors in this case. Pp. 8–11.
(c) The Government and dissent maintain that even though the
Fifth Circuit’s standard was inaccurate, Rosales-Mireles is still not
entitled to relief. But their arguments are unpersuasive. They cau-
tion that granting this type of relief would be inconsistent with the
Court’s statements that discretion under Rule 52(b) should be exer-
cised “sparingly,” Jones v. United States, 527 U.S. 373, 389, and re-
served for “exceptional circumstances,” Meyer v. Kenmore Granville
Hotel Co., 297 U.S. 160. In contrast to the Jones remand, however,
no additional jury proceedings would be required in a remand for re-
sentencing based on a Guidelines miscalculation. Plus, the circum-
stances of Rosales-Mireles’ case are exceptional under this Court’s
precedent, as they are reasonably likely to have resulted in a longer
prison sentence than necessary and there are no countervailing fac-
tors that otherwise further the fairness, integrity, or public reputa-
tion of judicial proceedings. The Government and dissent also assert
that Rosales-Mireles’ sentence is presumptively reasonable because it
falls within the corrected Guidelines range. But a court of appeals
can consider a sentence’s substantive reasonableness only after it en-
sures “that the district court committed no significant procedural er-
ror, such as failing to calculate (or improperly calculating) the Guide-
lines range.” Gall v. United States, 552 U.S. 38, 51. If a district
court cannot properly determine whether, considering all sentencing
factors, including the correct Guidelines range, a sentence is “suffi-
cient, but not greater than necessary,” 18 U.S. C. §3553(a), the re-
sulting sentence would not bear the reliability that would support a
“presumption of reasonableness” on review. See 552 U.S., at 51.
And regardless of its ultimate reasonableness, a sentence that lacks
reliability because of unjust procedures may well undermine public
perception of the proceedings. Finally, the Government and dissent
maintain that the Court’s decision will create an opportunity for
“sandbagging” that Rule 52(b) is supposed to prevent. But that con-
4 ROSALES-MIRELES v. UNITED STATES
Syllabus
cern fails to account for the realities at play in sentencing proceed-
ings, where it is highly speculative that a defendant would benefit
from a strategy of deliberately forgoing an objection in the district
court, with hopes of arguing for reversal under plain-error review lat-
er. Pp. 12–14.
850 F.3d 246, reversed and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, BREYER, KAGAN, and GORSUCH, JJ.,
joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J.,
joined.
Cite as: 585 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–9493
_________________
FLORENCIO ROSALES-MIRELES, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 18, 2018]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
Federal Rule of Criminal Procedure 52(b) provides that
a court of appeals may consider errors that are plain and
affect substantial rights, even though they are raised for
the first time on appeal. This case concerns the bounds of
that discretion, and whether a miscalculation of the United
States Sentencing Guidelines range, that has been
determined to be plain and to affect a defendant’s substan-
tial rights, calls for a court of appeals to exercise its dis-
cretion under Rule 52(b) to vacate the defendant’s sen-
tence. The Court holds that such an error will in the
ordinary case, as here, seriously affect the fairness, integ-
rity, or public reputation of judicial proceedings, and thus
will warrant relief.
I
A
Each year, thousands of individuals are sentenced to
terms of imprisonment for violations of federal law. Dis-
trict courts must determine in each case what constitutes
a sentence that is “sufficient, but not greater than neces-
sary,” 18 U.S. C. §3553(a), to achieve the overarching
2 ROSALES-MIRELES v. UNITED STATES
Opinion of the Court
sentencing purposes of “retribution, deterrence, incapaci-
tation, and rehabilitation.” Tapia v. United States, 564
U.S. 319, 325 (2011); 18 U.S. C. §§3551(a), 3553(a)(2).
Those decisions call for the district court to exercise dis-
cretion. Yet, to ensure “ ‘certainty and fairness’ ” in sen-
tencing, district courts must operate within the framework
established by Congress. United States v. Booker, 543
U.S. 220, 264 (2005) (quoting 28 U.S. C. §991(b)(1)(B)).
The Sentencing Guidelines serve an important role in
that framework. “ ‘[D]istrict courts must begin their anal-
ysis with the Guidelines and remain cognizant of them
throughout the sentencing process.’ ” Peugh v. United
States, 569 U.S. 530, 541 (2013) (quoting Gall v. United
States, 552 U.S. 38, 50, n. 6 (2007); emphasis in original).
Courts are not bound by the Guidelines, but even in an
advisory capacity the Guidelines serve as “a meaningful
benchmark” in the initial determination of a sentence and
“through the process of appellate review.” 569 U.S.,
at 541.
Of course, to consult the applicable Guidelines range, a
district court must first determine what that range is.
This can be a “complex” undertaking. Molina-Martinez v.
United States, 578 U. S. ___, ___ (2016) (slip op., at 4).
The United States Probation Office, operating as an arm
of the district court, first creates a presentence investiga-
tion report, “which includes a calculation of the advisory
Guidelines range it considers to be applicable.” Id., at ___
(slip op., at 3); see Fed. Rules Crim. Proc. 32(c)(1)(A),
(d)(1); United States Sentencing Commission, Guidelines
Manual §1B1.1(a) (Nov. 2016) (USSG). That calculation
derives from an assessment of the “offense characteristics,
offender characteristics, and other matters that might be
relevant to the sentence.” Rita v. United States, 551 U.S.
338, 342 (2007) (internal quotation marks omitted). Spe-
cifically, an offense level is calculated by identifying a base
level for the offense of conviction and adjusting that level
Cite as: 585 U. S. ____ (2018) 3
Opinion of the Court
to account for circumstances specific to the defendant’s
case, such as how the crime was committed and whether
the defendant accepted responsibility. See USSG
§§1B1.1(a)(1)–(5). A numerical value is then attributed to
any prior offenses committed by the defendant, which are
added together to generate a criminal history score that
places the defendant within a particular criminal history
category. §§1B1.1(a)(6), 4A1.1. Together, the offense level
and the criminal history category identify the applicable
Guidelines range. §1B1.1(a)(7).
B
The district court has the ultimate responsibility to
ensure that the Guidelines range it considers is correct,
and the “[f]ailure to calculate the correct Guidelines range
constitutes procedural error.” Peugh, 569 U.S., at 537.
Given the complexity of the calculation, however, district
courts sometimes make mistakes. It is unsurprising, then,
that “there will be instances when a district court’s sen-
tencing of a defendant within the framework of an incor-
rect Guidelines range goes unnoticed” by the parties as
well, which may result in a defendant raising the error for
the first time on appeal. Molina-Martinez, 578 U. S., at
___ (slip op., at 4). Those defendants are not entirely
without recourse.
Federal Rule of Criminal Procedure 52(b) provides that
“[a] plain error that affects substantial rights may be
considered even though it was not brought to the [district]
court’s attention.” In United States v. Olano, 507 U.S.
725 (1993), the Court established three conditions that
must be met before a court may consider exercising its
discretion to correct the error. “First, there must be an
error that has not been intentionally relinquished or
abandoned. Second, the error must be plain—that is to
say, clear or obvious. Third, the error must have affected
the defendant’s substantial rights.” Molina-Martinez, 578
4 ROSALES-MIRELES v. UNITED STATES
Opinion of the Court
U. S., at ___ (slip op., at 4) (citations omitted). To satisfy
this third condition, the defendant ordinarily must “ ‘show
a reasonable probability that, but for the error,’ the out-
come of the proceeding would have been different.” Ibid.
(quoting United States v. Dominguez Benitez, 542 U.S. 74,
76, 82 (2004)). Once those three conditions have been 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 proceed-
ings.” Molina-Martinez, 578 U. S., at ___ (slip op., at 4–5)
(internal quotation marks omitted). It is this last consid-
eration, often called Olano’s fourth prong, that we are
asked to clarify and apply in this case.
C
Petitioner Florencio Rosales-Mireles pleaded guilty to
illegal reentry in violation of 8 U.S. C. §§1326(a), (b)(2).
The Probation Office in its presentence investigation
report mistakenly counted a 2009 state conviction of mis-
demeanor assault twice. This double counting resulted in
a criminal history score of 13, which placed Rosales-
Mireles in criminal history category VI. Combined with
his offense level of 21, that yielded a Guidelines range of
77 to 96 months. Had the criminal history score been
calculated correctly, Rosales-Mireles would have been in
criminal history category V, and the resulting Guidelines
range would have been 70 to 87 months. See USSG ch. 5,
pt. A (sentencing table).
Rosales-Mireles did not object to the double-counting
error before the District Court. Relying on the erroneous
presentence investigation report, and after denying
Rosales-Mireles’ request for a downward departure, the
District Court sentenced Rosales-Mireles to 78 months of
imprisonment, one month above the lower end of the
Guidelines range that everyone thought applied.
On appeal, Rosales-Mireles argued for the first time
Cite as: 585 U. S. ____ (2018) 5
Opinion of the Court
that his criminal history score and the resulting Guide-
lines range were incorrect because of the double counting
of his 2009 conviction. Because he had not objected in the
District Court, the Court of Appeals for the Fifth Circuit
reviewed for plain error. 850 F.3d 246, 248 (2017).
Applying the Olano framework, the Fifth Circuit con-
cluded that Rosales-Mireles had established that the
Guidelines miscalculation constituted an error that was
plain, satisfying Olano’s first two conditions. It also held
that the error affected Rosales-Mireles’ substantial rights,
thus satisfying the third condition, because there was “a
reasonable probability that he would have been subject to
a different sentence but for the error.” 850 F.3d, at 249.
In reaching that conclusion, the Fifth Circuit rejected the
Government’s argument that Rosales-Mireles would have
received the same sentence regardless of the Guidelines
error, because the District Court had denied a downward
departure “based, in part, on Rosales-Mireles’ criminal
history,” which “erroneously included an extra conviction.”
Ibid.
The Fifth Circuit nevertheless declined to exercise its
discretion to vacate and remand the case for resentencing
because it concluded that Rosales-Mireles failed to estab-
lish that the error would seriously affect the fairness,
integrity, or public reputation of judicial proceedings. In
its view, “the types of errors that warrant reversal are
ones that would shock the conscience of the common man,
serve as a powerful indictment against our system of
justice, or seriously call into question the competence or
integrity of the district judge.” Id., at 250 (internal quota-
tion marks and alterations omitted). Because Rosales-
Mireles’ sentence of 78 months fell within the correct
range of 70 to 87 months, the Fifth Circuit held that nei-
ther the error nor the resulting sentence “would shock the
conscience.” Ibid.
The Fifth Circuit’s articulation of Olano’s fourth prong
6 ROSALES-MIRELES v. UNITED STATES
Opinion of the Court
is out of step with the practice of other Circuits.1 We
granted certiorari to resolve that conflict, 582 U. S. ___
(2017), and now reverse.
II
A
Although “Rule 52(b) is permissive, not mandatory,”
Olano, 507 U.S., at 735, it is well established that courts
“should” correct a forfeited plain error that affects sub-
stantial rights “if the error ‘seriously affects the fairness,
integrity or public reputation of judicial proceedings.’ ” Id.,
at 736 (quoting United States v. Atkinson, 297 U.S. 157,
160 (1936); alteration omitted); see also Molina-Martinez,
578 U. S., at ___–___ (slip op., at 4–5). The Court in Olano
rejected a narrower rule that would have called for relief
only “ ‘in those circumstances in which a miscarriage of
justice would otherwise result,’ ” that is to say, where a
defendant is actually innocent. 507 U.S., at 736 (quoting
United States v. Young, 470 U.S. 1, 15 (1985)). By focus-
ing instead on principles of fairness, integrity, and public
reputation, the Court recognized a broader category of
errors that warrant correction on plain-error review. See
507 U.S., at 736–737.
Like the miscarriage-of-justice rule that the Court re-
jected in Olano, the Fifth Circuit’s standard is unduly
restrictive. To be sure, a conclusion that an error
“shock[s] the conscience of the common man, serve[s] as a
powerful indictment against our system of justice, or
seriously call[s] into question the competence or integrity
of the district judge,” 850 F.3d, at 250 (internal quotation
——————
1 Compare 850 F.3d 246, 250 (CA5 2017), with United States v. Dahl,
833 F.3d 345, 357, 359 (CA3 2016); United States v. Figueroa-Ocasio,
805 F.3d 360, 367–368, 373–374 (CA1 2015); United States v. Sabillon-
Umana, 772 F.3d 1328, 1333–1334 (CA10 2014) (Gorsuch, J.); United
States v. Joseph, 716 F.3d 1273, 1281 (CA9 2013); United States v.
Garrett, 528 F.3d 525, 527, 529–530 (CA7 2008).
Cite as: 585 U. S. ____ (2018) 7
Opinion of the Court
marks omitted), would demand an exercise of discretion to
correct the error. Limiting relief only to those circum-
stances, however, too narrowly confines the extent of a
court of appeals’ discretion.
The “shock the conscience” standard typically is em-
ployed when determining whether governmental action
violates due process rights under the Fifth and Fourteenth
Amendments. See County of Sacramento v. Lewis, 523
U.S. 833, 847, n. 8 (1998) (“[I]n a due process challenge to
executive action, the threshold question is whether the
behavior of the governmental officer is so egregious, so
outrageous, that it may fairly be said to shock the contem-
porary conscience”). This Court has said that the “shock
the conscience” standard is satisfied where the conduct
was “intended to injure in some way unjustifiable by any
government interest,” or in some circumstances if it re-
sulted from deliberate indifference. Id., at 849–850.
That standard is not reflected in Rule 52(b) itself, nor in
how this Court has applied the plain-error doctrine. The
Court repeatedly has reversed judgments for plain error
on the basis of inadvertent or unintentional errors of the
court or the parties below. See, e.g., Silber v. United
States, 370 U.S. 717, 717–718 (1962) (per curiam) (revers-
ing judgment for plain error as a result of insufficient
indictment); Brasfield v. United States, 272 U.S. 448,
449–450 (1926) (reversing judgment for plain error where
the trial judge improperly inquired of a jury’s numerical
division); Clyatt v. United States, 197 U.S. 207, 222 (1905)
(reversing judgment for plain error where the Government
presented insufficient evidence to sustain conviction). The
Court also “routinely remands” cases involving inadvert-
ent or unintentional errors, including sentencing errors,
for consideration of Olano’s fourth prong with the under-
standing that such errors may qualify for relief. Hicks v.
United States, 582 U. S. ___, ___ (2017) (GORSUCH, J.,
concurring) (slip op., at 2).
8 ROSALES-MIRELES v. UNITED STATES
Opinion of the Court
The Fifth Circuit’s additional focus on errors that “serve
as a powerful indictment against our system of justice, or
seriously call into question the competence or integrity of
the district judge,” 850 F.3d, at 250 (internal quotation
marks omitted), similarly alters the Rule 52(b) standard.
The Court has never said that errors must amount to a
“powerful indictment” of the system, a phrase which im-
plies by its terms that the only errors worthy of correction
are those that rise to the level of grossly serious miscon-
duct. Similarly, the Fifth Circuit’s emphasis on the “com-
petence or integrity of the district judge” narrows Olano’s
instruction that an error should be corrected if it seriously
affects “judicial proceedings.” In articulating such a high
standard, the Fifth Circuit substantially changed Olano’s
fourth prong.
B
The effect of the Fifth Circuit’s heightened standard is
especially pronounced in a case like this one. A plain
Guidelines error that affects a defendant’s substantial
rights is precisely the type of error that ordinarily war-
rants relief under Rule 52(b).
In Molina-Martinez, the Court recognized that “[w]hen a
defendant is sentenced under an incorrect Guidelines
range—whether or not the defendant’s ultimate sentence
falls within the correct range—the error itself can, and
most often will, be sufficient to show a reasonable proba-
bility of a different outcome absent the error.” 578 U. S.,
at ___ (slip op., at 9). In other words, an error resulting in
a higher range than the Guidelines provide usually estab-
lishes a reasonable probability that a defendant will serve
a prison sentence that is more than “necessary” to fulfill
the purposes of incarceration. 18 U.S. C. §3553(a); Tapia,
564 U.S., at 325. “To a prisoner,” this prospect of addi-
tional “time behind bars is not some theoretical or mathe-
matical concept.” Barber v. Thomas, 560 U.S. 474, 504
Cite as: 585 U. S. ____ (2018) 9
Opinion of the Court
(2010) (KENNEDY, J., dissenting). “[A]ny amount of actual
jail time” is significant, Glover v. United States, 531 U.S.
198, 203 (2001), and “ha[s] exceptionally severe conse-
quences for the incarcerated individual [and] for society
which bears the direct and indirect costs of incarceration,”
United States v. Jenkins, 854 F.3d 181, 192 (CA2 2017).
The possibility of additional jail time thus warrants seri-
ous consideration in a determination whether to exercise
discretion under Rule 52(b). It is crucial in maintaining
public perception of fairness and integrity in the justice
system that courts exhibit regard for fundamental rights
and respect for prisoners “as people.” T. Tyler, Why Peo-
ple Obey the Law 164 (2006).
The risk of unnecessary deprivation of liberty par-
ticularly undermines the fairness, integrity, or public rep-
utation of judicial proceedings in the context of a plain
Guidelines error because of the role the district court plays
in calculating the range and the relative ease of correcting
the error. Unlike “case[s] where trial strategies, in retro-
spect, might be criticized for leading to a harsher sen-
tence,” Guidelines miscalculations ultimately result from
judicial error. Glover, 531 U.S., at 204; see also Peugh,
569 U.S., at 537. That was especially so here where the
District Court’s error in imposing Rosales-Mireles’ sen-
tence was based on a mistake made in the presentence
investigation report by the Probation Office, which works
on behalf of the District Court. Moreover, “a remand for
resentencing, while not costless, does not invoke the same
difficulties as a remand for retrial does.” Molina-
Martinez, 578 U. S., at ___ (slip op., at 15) (internal quota-
tion marks omitted). “A resentencing is a brief event,
normally taking less than a day and requiring the attend-
ance of only the defendant, counsel, and court personnel.”
United States v. Williams, 399 F.3d 450, 456 (CA2 2005).
Ensuring the accuracy of Guidelines determinations also
serves the purpose of “providing certainty and fairness in
10 ROSALES-MIRELES v. UNITED STATES
Opinion of the Court
sentencing” on a greater scale. 28 U.S. C. §994(f); see also
§991(b)(1)(B); Booker, 543 U.S., at 264. The Guidelines
assist federal courts across the country in achieving uni-
formity and proportionality in sentencing. See Rita, 551
U.S., at 349. To realize those goals, it is important that
sentencing proceedings actually reflect the nature of the
offense and criminal history of the defendant, because the
United States Sentencing Commission relies on data
developed during sentencing proceedings, including infor-
mation in the presentence investigation report, to deter-
mine whether revisions to the Guidelines are necessary.
See id., at 350. When sentences based on incorrect Guide-
lines ranges go uncorrected, the Commission’s ability to
make appropriate amendments is undermined.2
In broad strokes, the public legitimacy of our justice
system relies on procedures that are “neutral, accurate,
consistent, trustworthy, and fair,” and that “provide op-
portunities for error correction.” Bowers & Robinson,
Perceptions of Fairness and Justice: The Shared Aims and
Occasional Conflicts of Legitimacy and Moral Credibility,
47 Wake Forest L. Rev. 211, 215–216 (2012). In consider-
ing claims like Rosales-Mireles’, then, “what reasonable
citizen wouldn’t bear a rightly diminished view of the
judicial process and its integrity if courts refused to cor-
rect obvious errors of their own devise that threaten to
require individuals to linger longer in federal prison than
the law demands?” United States v. Sabillon-Umana, 772
F.3d 1328, 1333–1334 (CA10 2014) (Gorsuch, J.). In the
context of a plain Guidelines error that affects substantial
——————
2 Similarly, the work of the Federal Bureau of Prisons is hindered by
uncorrected Guidelines errors, because the Bureau relies, in part, on
aspects of the Guidelines calculation in designating and classifying
prisoners based on security and program needs. See Federal Bureau of
Prisons, Program Statement No. P5100.08, Subject: Inmate Security
Designation and Custody Classification, ch. 2, p. 1, ch. 4, p. 8, ch. 6, p. 5
(Sept. 12, 2006).
Cite as: 585 U. S. ____ (2018) 11
Opinion of the Court
rights, that diminished view of the proceedings ordinarily
will satisfy Olano’s fourth prong, as it does in this case.3
As the Fifth Circuit itself concluded, there is a reasonable
probability that, without correction of the Guidelines
error, Rosales-Mireles will spend more time in prison than
the District Court otherwise would have considered neces-
sary. 850 F.3d, at 249. That error was based on a mis-
take by the Probation Office, a mistake that can be reme-
died through a relatively inexpensive resentencing
proceeding.
Of course, any exercise of discretion at the fourth prong
of Olano inherently requires “a case-specific and fact-
intensive” inquiry. Puckett v. United States, 556 U.S. 129,
142 (2009); see also Young, 470 U.S., at 16–17, n. 14.
There may be instances where countervailing factors
satisfy the court of appeals that the fairness, integrity,
and public reputation of the proceedings will be preserved
absent correction. But on the facts of this case, there are
no such factors.4
——————
3 The dissent maintains that “adhering to procedure” does not have
“prime importance for purposes of the fourth prong” because the Court
has held in some instances, where the error was not likely to have
affected the substantive outcome, that the procedural error alone did
not satisfy Olano’s fourth prong. Post, at 7 (opinion of THOMAS, J.)
(citing Johnson v. United States, 520 U.S. 461 (1997); United States v.
Cotton, 535 U.S. 625 (2002); United States v. Marcus, 560 U.S. 258
(2010)). The cases on which the dissent relies do not stand for the view,
however, that procedural errors are unimportant or could never satisfy
Olano’s fourth prong, especially where, as here, the defendant has
shown a likelihood that the error affected the substantive outcome.
4 As the dissent points out, post, at 8–9, a defendant bears the “bur-
den to persuade the court that the error seriously affect[ed] the fair-
ness, integrity or public reputation of judicial proceedings.” United
States v. Vonn, 535 U.S. 55, 63 (2002) (internal quotation marks
omitted). In the ordinary case, proof of a plain Guidelines error that
affects the defendant’s substantial rights is sufficient to meet that
burden.
12 ROSALES-MIRELES v. UNITED STATES
Opinion of the Court
III
The United States and the dissent agree with Rosales-
Mireles that the Fifth Circuit’s formulation of the stand-
ard for the exercise of discretion under Rule 52(b) “is an
inaccurate description” of Olano’s fourth prong. Brief for
United States 34; post, at 1, n. 1 (opinion of THOMAS, J.)
(“[T]he Fifth Circuit’s standard is higher than the one
articulated in this Court’s precedents”). They nevertheless
maintain that Rosales-Mireles is not entitled to relief.
We are unpersuaded, though a few points merit brief
discussion.
First, the United States and the dissent caution that a
grant of relief in Rosales-Mireles’ case and in others like
his would be inconsistent with the Court’s statements that
discretion under Rule 52(b) should be exercised “sparingly,”
Jones v. United States, 527 U.S. 373, 389 (1999), and
reserved for “exceptional circumstances,” Atkinson, 297
U.S., at 160. As an initial matter, Jones and the cases it
relies on for the point that discretion should be exercised
“sparingly” would have required additional jury proceed-
ings on remand, either at resentencing or retrial. See 527
U.S., at 384, 389; see also Young, 470 U.S. 1; United
States v. Frady, 456 U.S. 152 (1982); Henderson v. Kibbe,
431 U.S. 145 (1977). As we have explained, a decision
remanding a case to the district court for resentencing on
the basis of a Guidelines miscalculation is far less burden-
some than a retrial, or other jury proceedings, and thus
does not demand such a high degree of caution.
In any event, the circumstances surrounding Rosales-
Mireles’ case are exceptional within the meaning of the
Court’s precedent on plain-error review, as they are rea-
sonably likely to have resulted in a longer prison sentence
than necessary and there are no countervailing factors
that otherwise further the fairness, integrity, or public
reputation of judicial proceedings. The fact that, as a
result of the Court’s holding, most defendants in Rosales-
Cite as: 585 U. S. ____ (2018) 13
Opinion of the Court
Mireles’ situation will be eligible for relief under Rule
52(b) does not justify a decision that ignores the harmful
effects of allowing the error to persist.
Second, the United States and the dissent assert that,
because Rosales-Mireles’ sentence falls within the cor-
rected Guidelines range, the sentence is presumptively rea-
sonable and “less likely to indicate a serious injury to the
fairness, integrity, or public reputation of judicial proceed-
ings.” Brief for United States 20–21; see also post, at 10.
A substantive reasonableness determination, however, is
an entirely separate inquiry from whether an error war-
rants correction under plain-error review.
Before a court of appeals can consider the substantive
reasonableness of a sentence, “[i]t must first ensure that
the district court committed no significant procedural
error, such as failing to calculate (or improperly calculat-
ing) the Guidelines range.” Gall, 552 U.S., at 51. This
makes eminent sense, for the district court is charged in
the first instance with determining whether, taking all
sentencing factors into consideration, including the correct
Guidelines range, a sentence is “sufficient, but not greater
than necessary.” 18 U.S. C. §3553(a). If the district court
is unable properly to undertake that inquiry because of an
error in the Guidelines range, the resulting sentence no
longer bears the reliability that would support a “pre-
sumption of reasonableness” on review. See Gall, 552
U.S., at 51. Likewise, regardless of its ultimate reason-
ableness, a sentence that lacks reliability because of unjust
procedures may well undermine public perception of the
proceedings. See Hollander-Blumoff, The Psychology of
Procedural Justice in the Federal Courts, 63 Hastings
L. J. 127, 132–134 (2011) (compilation of psychology re-
search showing that the fairness of procedures influences
perceptions of outcomes). The mere fact that Rosales-
Mireles’ sentence falls within the corrected Guidelines
range does not preserve the fairness, integrity, or public
14 ROSALES-MIRELES v. UNITED STATES
Opinion of the Court
reputation of the proceedings.5
Third, the United States and the dissent contend that
our decision “creates the very opportunity for ‘sandbag-
ging’ that Rule 52(b) is supposed to prevent.” Post, at 5;
Brief for United States 17–18, 27. But that concern fails
to account for the realities at play in sentencing proceed-
ings. As this Court repeatedly has explained, “the Guide-
lines are ‘the starting point for every sentencing calcula-
tion in the federal system,’ ” Hughes v. United States, 584
U. S. ___, ___ (2018) (slip op., at 9) (quoting Peugh, 569
U.S., at 542). It is hard to imagine that defense counsel
would “deliberately forgo objection now” to a plain Guide-
lines error that would subject her client to a higher Guide-
lines range, “because [counsel] perceives some slightly
expanded chance to argue for ‘plain error’ later.” Hender-
son v. United States, 568 U.S. 266, 276 (2013) (emphasis
in original). Even setting aside the conflict such a strat-
egy would create with defense counsel’s ethical obligations
to represent her client vigorously and her duty of candor
toward the court, any benefit from such a strategy is
highly speculative. There is no guarantee that a court of
appeals would agree to a remand, and no basis to believe
that a district court would impose a lower sentence upon
resentencing than the court would have imposed at the
original sentencing proceedings had it been aware of the
plain Guidelines error.
IV
For the foregoing reasons, we conclude that the Fifth
——————
5 The dissent’s discussion of Rosales-Mireles’ criminal history, post, at
9–10, misses the point. That history is relevant to the District Court’s
determination of an appropriate sentence under 18 U.S. C. §3553(a). It
does not help explain whether the plain procedural error in Rosales-
Mireles’ sentencing proceedings, which may have resulted in a longer
sentence than is justified in light of that history, seriously affects the
fairness, integrity, or public reputation of judicial proceedings.
Cite as: 585 U. S. ____ (2018) 15
Opinion of the Court
Circuit abused its discretion in applying an unduly bur-
densome articulation of Olano’s fourth prong and declin-
ing to remand Rosales-Mireles’ case for resentencing. In
the ordinary case, as here, the failure to correct a plain
Guidelines error that affects a defendant’s substantial
rights will seriously affect the fairness, integrity, and
public reputation of judicial proceedings. The judgment of
the Court of Appeals is therefore reversed, and the case is
remanded for further proceedings consistent with this
opinion.
It is so ordered.
Cite as: 585 U. S. ____ (2018) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–9493
_________________
FLORENCIO ROSALES-MIRELES, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 18, 2018]
JUSTICE THOMAS, with whom JUSTICE ALITO joins,
dissenting.
The Court holds that, “in the ordinary case,” a miscalcu-
lation of the advisory Sentencing Guidelines range will
“seriously affect the fairness, integrity, or public reputa-
tion of judicial proceedings.” Ante, at 1. In other words, a
defendant who does not alert the district court to a plain
miscalculation of his Guidelines range—and is not happy
with the sentence he receives—can raise the Guidelines
error for the first time on appeal and ordinarily get another
shot at a more favorable sentence. The Court’s decision
goes far beyond what was necessary to answer the ques-
tion presented.1 And it contravenes long-established
principles of plain-error review. I respectfully dissent.
——————
1 We granted certiorari to decide whether “the fourth prong of plain
error review [demands], as the Fifth Circuit Court of Appeals required,
that the error be one that ‘would shock the conscience of the common
man, serve as a powerful indictment against our system of justice, or
seriously call into question the competence or integrity of the district
judge.’ ” Pet. for Cert. i; 582 U. S. ___ (2017). Although I doubt it
changed the outcome in any case, I agree that the Fifth Circuit’s
standard is higher than the one articulated in this Court’s precedents—
at least to the extent it requires an uncorrected error to “shock the
conscience.” See ante, at 5–7.
2 ROSALES-MIRELES v. UNITED STATES
THOMAS, J., dissenting
I
Under Federal Rule of Criminal Procedure 52(b), “[a]
plain error that affects substantial rights may be consid-
ered even though it was not brought to the court’s atten-
tion.” (Emphasis added.) The “point of the plain-error
rule” is to “requir[e] defense counsel to be on his toes.”
United States v. Vonn, 535 U.S. 55, 73 (2002). Its de-
manding standard is meant to “encourage timely objec-
tions and reduce wasteful reversals by demanding strenu-
ous exertion to get relief for unpreserved error.” United
States v. Dominguez Benitez, 542 U.S. 74, 82 (2004). If
the standard were not stringent, there would be nothing
“prevent[ing] a litigant from ‘ “sandbagging” ’ the court—
remaining silent about his objection and belatedly raising
the error only if the case does not conclude in his favor.”
Puckett v. United States, 556 U.S. 129, 134 (2009). Satis-
fying the plain-error standard “is difficult, ‘as it should
be.’ ” Id., at 135.
This Court has held that Rule 52(b) is satisfied only
when four requirements are met: “(1) there is ‘an error,’
(2) the error is ‘plain,’ ” “(3) the error ‘affect[s] substantial
rights,’ ” and “(4) . . . ‘the error “seriously affect[s] the
fairness, integrity or public reputation of judicial proceed-
ings.” ’ ” Henderson v. United States, 568 U.S. 266, 272
(2013). The fourth requirement—the one at issue here—is
discretionary. Ibid. It should “be applied on a case-
specific and fact-intensive basis.” Puckett, supra, at 142.
And it cannot be satisfied by “a plain error affecting sub-
stantial rights . . . , without more, . . . for otherwise the
discretion afforded by Rule 52(b) would be illusory.” United
States v. Olano, 507 U.S. 725, 737 (1993). Instead, “only
‘particularly egregious errors’ ” will meet the fourth
prong’s rigorous standard. United States v. Young, 470
U.S. 1, 15 (1985) (quoting United States v. Frady, 456
U.S. 152, 163 (1982)); see also United States v. Atkinson,
297 U.S. 157, 160 (1936) (explaining that courts should
Cite as: 585 U. S. ____ (2018) 3
THOMAS, J., dissenting
provide relief under plain-error review only in “exceptional
circumstances”).
II
The Court holds that Guidelines errors will “ordi-
nar[ily]” satisfy the fourth prong of plain-error review.
Ante, at 15. This result contravenes several established
principles from our precedents.
To begin, the Court’s decision is at odds with the princi-
ple that the fourth prong of plain-error review “be applied
on a case-specific and fact-intensive basis.” Puckett, supra,
at 142. By holding that a Guidelines error “ordinarily will
satisfy [the] fourth prong” absent “countervailing factors,”
ante, at 11, the Court creates what is essentially a rebut-
table presumption that plain Guidelines errors satisfy
Rule 52(b). And, based on the Court’s application of it
today, this presumption certainly must be difficult to
rebut. The Court matter-of-factly asserts, in a single
sentence with no analysis, that “there are no [countervail-
ing] factors” in this case that counsel in favor of affir-
mance. Ante, at 11. It does so without even discussing the
particular details of the defendant’s crime, what happened
at his sentencing, the reasoning that the District Court
employed, the difference between the defendant’s calculated
Guidelines range and the correct one, or where his sen-
tence fell relative to the correct Guidelines range. This
approach is neither “case-specific” nor “fact-intensive.”
Puckett, supra, at 142. The Court candidly admits as
much. See ante, at 11, n. 4. But this is exactly the kind of
“ ‘per se approach to plain-error review’ ” that we have
consistently rejected. Puckett, supra, at 142.
The Court’s rebuttable presumption also renders the
fourth prong of plain-error review “illusory” in most
Guidelines cases. Olano, supra, at 737. The Court ex-
pressly states that Guidelines errors will satisfy the fourth
prong in “the ordinary case.” Ante, at 15. But this Court
4 ROSALES-MIRELES v. UNITED STATES
THOMAS, J., dissenting
has repeatedly held that the fourth prong limits courts’
discretion to “correct[ing] only ‘particularly egregious
errors.’ ” Young, supra, at 15. Because Rule 52(b) “ ‘is not
a run-of-the-mill remedy,’ ” Frady, supra, at 163, n. 14,
relief should be granted “sparingly” in “ ‘the rare case,’ ”
Jones v. United States, 527 U.S. 373, 389 (1999), and only
in “exceptional circumstances,” Atkinson, supra, at 160.
Today’s decision turns that principle on its head by mak-
ing relief available “in the ordinary case.” Ante, at 1.
The Court asserts that relief under plain-error review
need not be exceptional or rare when a remand would not
require “additional jury proceedings.” Ante, at 12. But
that distinction has no basis in the text of Rule 52(b) or
this Court’s precedents. The only Rule 52(b) precedent
that the Court cites for this assertion is Molina-Martinez
v. United States, 578 U. S. ___, ___ (2016) (slip op., at 15).
See ante, at 9. That decision rejected the Fifth Circuit’s
categorical rule requiring defendants to present “additional
evidence” (beyond the Guidelines error itself) to prove
prejudice under the third prong of plain-error review. See
578 U. S., at ___–___ (slip op., at 8–9). In dicta it suggested
that, “in the ordinary case,” the Guidelines error would be
enough to satisfy the third prong’s requirement that the
error affect substantial rights. Id., at ___ (slip op., at 15).
And it rebuffed the Government’s pragmatic “concern over
the judicial resources needed” if Guidelines errors usually
satisfy the third prong of plain-error review. Id., at ___
(slip op., at 14). But Molina-Martinez did not discuss the
fourth prong of plain-error review, which is at issue here
and is an independent requirement, see Olano, supra, at
737. Nor did it relax the plain-error standard whenever
reversal would not require “additional jury proceedings.”
Ante, at 12. Thus, Molina-Martinez gives no support to
the Court’s innovation.
Additionally, the Court’s encouragement of remands
based on ordinary Guidelines errors undermines “the
Cite as: 585 U. S. ____ (2018) 5
THOMAS, J., dissenting
policies that underpin Rule 52(b).” Dominguez Benitez,
542 U.S., at 82. As explained, the plain-error standard
encourages defendants to make timely objections in order
to avoid sandbagging and to prevent wasteful reversals
and remands. After today, however, most defendants who
fail to object to a Guidelines error will be in virtually the
same position as those who do. Today’s decision, especially
when combined with Molina-Martinez, means that plain
Guidelines errors will satisfy Rule 52(b) in all but the
unusual case. That creates the very opportunity for
“sandbagging” that Rule 52(b) is supposed to prevent,
Puckett, 556 U.S., at 134 (internal quotation marks omit-
ted), by allowing a defendant who is aware of a mistake in
the presentence report to “simply relax and wait to see if
the sentence later str[ikes] him as satisfactory,” Vonn, 535
U.S., at 73. Oddly, defendants who do not object to a
Guidelines error could be in a better position than ones
who do. An objection would give the district court a
chance to explain why it would “arrive at the same sen-
tencing conclusion” even if the defendant was correct
about an alleged Guidelines error, which would “mak[e]
clear” that the Guidelines error did not “adversely affect
the defendant’s ultimate sentence.” United States v.
Sabillon-Umana, 772 F.3d 1328, 1334 (CA10 2014).
Today’s decision thus inverts Rule 52(b) by giving defend-
ants an incentive to withhold timely objections and
“ ‘game’ the system.” Puckett, supra, at 140.
III
Even if it were appropriate to create rebuttable pre-
sumptions under the fourth prong of plain-error review,
the Court is wrong to conclude that the “ordinary” Guide-
lines error will “seriously affect the fairness, integrity, or
public reputation of judicial proceedings.” Ante, at 1.
Whether a district court’s failure to correctly calculate the
advisory Guidelines range satisfies the fourth prong of
6 ROSALES-MIRELES v. UNITED STATES
THOMAS, J., dissenting
plain-error review will depend on the circumstances of
each case. And the circumstances of this case prove the
folly of the Court’s presumption.
A
The Court asserts that plain Guidelines errors must
ordinarily be corrected to ensure that defendants do not
“linger longer in federal prison than the law demands.”
Ante, at 10 (internal quotation marks omitted). But the
Guidelines are not “law.” They neither “define criminal
offenses” nor “fix the permissible sentences for criminal
offenses.” Beckles v. United States, 580 U. S. ___, ___
(2017) (slip op., at 5) (emphasis deleted). Instead, they are
purely “advisory” and “merely guide the district courts’
discretion.” Id., at ___ (slip op., at 8). They provide advice
about what sentencing range the Sentencing Commission
believes is appropriate, “but they ‘do not constrain’ ” dis-
trict courts. Ibid. Accordingly, district courts are free to
disagree with the Guidelines range, for reasons as simple
as a policy disagreement with the Sentencing Commission.
See Pepper v. United States, 562 U.S. 476, 501 (2011); 18
U.S. C. §3661. In fact, district courts commit reversible
error if they “trea[t] the Guidelines as mandatory.” Gall v.
United States, 552 U.S. 38, 51 (2007). Although the
Guidelines range is one of the factors that courts must
consider at sentencing, 18 U.S. C. §3553(a), judges need
not give the Guidelines range any particular weight. The
only thing that “the law demands” is that a defendant’s
sentence be substantively reasonable and within the
applicable statutory range. See Jones v. United States,
577 U. S. ___, ___–___ (2015) (Scalia, J., dissenting from
denial of certiorari) (slip op., at 1–2); Kimbrough v. United
States, 552 U.S. 85, 113–114 (2007) (Scalia, J.,
concurring).
The Court also justifies its presumption by repeatedly
stressing the importance of procedural rules to the public’s
Cite as: 585 U. S. ____ (2018) 7
THOMAS, J., dissenting
perception of judicial proceedings. See ante, at 10 (“[T]he
public legitimacy of our justice system relies on proce-
dures”); ante, at 13 (“[U]njust procedures may well un-
dermine public perception of [sentencing] proceedings”). It
even cites a hodgepodge of psychological studies on proce-
dural justice. Ante, at 13 (citing Hollander-Blumoff, The
Psychology of Procedural Justice in the Federal Courts, 63
Hastings L. J. 127, 132–134 (2011) (Hollander-Blumoff)).
Putting aside the obvious problems with this research,2
the Court contradicts our precedents by suggesting that
adhering to procedure has prime importance for purposes
of the fourth prong. This Court has repeatedly concluded
that purely procedural errors—ones that likely did not
affect the substantive outcome—do not satisfy the fourth
prong of plain-error review. In Johnson v. United States,
520 U.S. 461 (1997), for example, the District Court failed
to submit a materiality element to the jury, but this Court
found that the fourth prong of plain-error review was not
——————
2 The article that the Court cites makes broad claims based on limited
research. For instance, the article states that, “[w]hen people feel that
they have received fair treatment, they are more likely to adhere to,
accept, and feel satisfied with a given outcome, and to view the system
that gave rise to that outcome as legitimate.” Hollander-Blumoff, 134.
But the only support it provides for that proposition is a telephone
survey of a few hundred Chicago residents. See id., at 134, n. 37 (citing
T. Tyler, Why People Obey the Law 162 (2006)); see also id., at 8–15
(explaining the study’s methodology). The article also draws conclu-
sions about the general importance of “procedural justice” in court,
based on marginally relevant studies of noncourt settings such as
“arbitration and mediation,” interactions with “police officers” and
“work supervisors,” and “highly relational settings like the family.” See
Hollander-Blumoff 132–134. Crucially, none of this research has any
bearing on the far more complicated question of “procedural justice” at
issue here: whether it is presumptively unfair to penalize a defendant
who fails to object to an error until appeal. The contemporaneous-
objection rule, after all, is also a procedural rule that affects the fair-
ness, integrity, and reputation of judicial proceedings.
8 ROSALES-MIRELES v. UNITED STATES
THOMAS, J., dissenting
satisfied because “the evidence supporting materiality was
‘overwhelming.’ ” Id., at 470. Reversal based on errors
that have no actual “ ‘effect on the judgment,’ ” this Court
explained, “ ‘encourages litigants to abuse the judicial
process and bestirs the public to ridicule it.’ ” Ibid. (quot-
ing R. Traynor, The Riddle of Harmless Error 50 (1970)).
Similarly, in United States v. Cotton, 535 U.S. 624 (2002),
the indictment failed to allege a fact that increased the
statutory maximum, but the evidence of that fact “was
‘overwhelming’ and ‘essentially uncontroverted.’ ” Id., at
633. This Court held that reversing a defendant’s sen-
tence based on such a technicality would be “[t]he real
threat . . . to the ‘fairness, integrity, and public reputation
of judicial proceedings.’ ” Id., at 634. And in United States
v. Marcus, 560 U.S. 258 (2010), the Second Circuit had
held that an ex post facto error automatically satisfies the
plain-error standard, “ ‘no matter how unlikely’ ” it was
that the jury actually convicted the defendant based on
conduct that predated the statute of conviction. Id., at 261
(emphasis deleted). In reversing that decision, this Court
emphasized that, “in most circumstances, an error that
does not affect the jury’s verdict does not significantly
impugn the ‘fairness,’ ‘integrity,’ or ‘public reputation’ of
the judicial process.” Id., at 265–266. Thus, the Court is
mistaken when it asserts that, because Guidelines errors
are procedural mistakes, they are particularly likely to
implicate the fourth prong of plain error.
B
While the Court holds that the ordinary Guidelines
error will satisfy the fourth prong of plain-error review, it
admits that there can be “instances where countervailing
factors” preclude defendants from satisfying the fourth
prong. Ante, at 11. Because the Court does not question
our existing plain-error precedents, see ante, at 12, the
burden presumably remains on defendants to establish
Cite as: 585 U. S. ____ (2018) 9
THOMAS, J., dissenting
that there are no such countervailing factors, and to per-
suade the appellate court that any countervailing factor
identified by the Government is insufficient. See Vonn,
535 U.S., at 63 (“[A] defendant has the further burden to
persuade the court that the error seriously affect[ed] the
fairness, integrity or public reputation of judicial proceed-
ings” (internal quotation marks omitted)); Dominguez
Benitez, 542 U.S., at 82 (“[T]he burden of establishing
entitlement to relief for plain error is on the defendant
claiming it”). But the Court does not explain what the
defendant in this case has done to satisfy his burden.
If this case is an ordinary one, it highlights the folly of
the Court’s new rebuttable presumption. Petitioner Flor-
encio Rosales-Mireles has a penchant for entering this
country illegally and committing violent crimes—
especially against women. A Mexican citizen, Rosales-
Mireles entered the United States illegally in 1997. In
2002, he was convicted of assault for throwing his girl-
friend to the floor of their apartment and dragging her
outside by her hair. In 2009, he was convicted of aggra-
vated assault with serious bodily injury and assault caus-
ing bodily injury to a family member.3 His convictions
stemmed from an altercation in which he attempted to
stab one man and did stab another—once in the shoulder
and twice in the chest. In January 2010, Rosales-Morales
was removed to Mexico. But that same month he reen-
tered the United States illegally. In 2015, he was convicted
in Texas state court of assaulting his wife and 14-year-old
son. During the altercation, Rosales-Mireles grabbed his
wife by the hair and punched her in the face repeatedly.
——————
3 These assaults occurred in 2001, but Rosales-Mireles was not ar-
rested for years—apparently because he was going by the name “Emilio
Ruiz” at the time of the assaults. When Rosales-Mireles was eventually
arrested in 2009, he had two outstanding warrants for other assaults of
his wife.
10 ROSALES-MIRELES v. UNITED STATES
THOMAS, J., dissenting
Most recently, Rosales-Mireles pleaded guilty to illegal
reentry. See 8 U.S. C. §§1326(a), (b)(2). The District
Court sentenced him to 78 months in prison, which was
within the Guidelines range he argued for on appeal. See
ante, at 4. In choosing that sentence, the District Court
emphasized that it was “the second time he’s come to the
courts for being here illegally”; that he had “attempted to
hide in the United States with multiple aliases, birth
dates, [and] Social Security numbers”; and that his “as-
saultive behavior” spanned from “at least . . . 2001 to
2015.” App. 20.
The sentence that Rosales-Mireles received was not only
within both the improperly and properly calculated Guide-
lines ranges but also in the bottom half of both possible
ranges. See ante, at 4. If the District Court had used the
proper Guidelines range at his initial sentencing, then the
sentence that it ultimately gave Rosales-Mireles would
have been presumptively reasonable on appeal. See 850
F.3d 246, 250 (CA5 2017); Rita v. United States, 551 U.S.
338, 347 (2007). And the Fifth Circuit determined that his
sentence was in fact reasonable. See 850 F.3d, at 250–
251. Leaving that reasonable sentence in place would not
“ ‘seriously affect the fairness, integrity, or public reputa-
tion of judicial proceedings.’ ” Young, 470 U.S., at 15. A
sentence that is substantively reasonable is hardly the
kind of “particularly egregious erro[r]” that warrants
plain-error relief. Frady, 456 U.S., at 163.
* * *
Rule 52(b) strikes a “careful balance . . . between judicial
efficiency and the redress of injustice.” Puckett, 556 U.S.,
at 135. Because today’s decision upsets that balance for
scores of cases involving Guidelines errors, I respectfully
dissent.