Hicks v. United States

Cite as: 582 U. S. ____ (2017) 1
GORSUCH, J., concurring
SUPREME COURT OF THE UNITED STATES
MARCUS DESHAW HICKS v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 16–7806. Decided June 26, 2017
The motion of petitioner for leave to proceed in forma
pauperis and the petition for a writ of certiorari are granted.
The judgment is vacated, and the case is remanded to
the United States Court of Appeals for the Fifth Circuit for
further consideration in light of the position asserted by
the Acting Solicitor General in his brief for the United
States filed on May 1, 2017.
JUSTICE GORSUCH, concurring.
Everyone agrees that Mr. Hicks was wrongly sentenced
to a 20-year mandatory minimum sentence under a now-
defunct statute. True, Mr. Hicks didn’t argue the point in
the court of appeals. But before us the government admits
his sentence is plainly wrong as a matter of law, and it’s
simple enough to see the government is right. Of course,
to undo and revise a sentence under the plain error stand-
ard, a court must not only (1) discern an error, that error
must (2) be plain, (3) affect the defendant’s substantial
rights, and (4) implicate the fairness, integrity, or public
reputation of judicial proceedings. United States v. Olano,
507 U.S. 725, 732 (1993). And while the government
concedes the first two legal elements of the plain error
test, it asks us to remand the case to the court of appeals
for it to resolve the latter two questions in the first
instance.
I cannot think of a good reason to say no. When this
Court identifies a legal error, it routinely remands the
case so the court of appeals may resolve whether the error
was harmless in light of other proof in the case—and so
2 HICKS v. UNITED STATES
GORSUCH, J., concurring
decide if the judgment must be revised under Federal Rule
of Criminal Procedure 52(a). After identifying an unpre-
served but plain legal error, this Court likewise routinely
remands the case so the court of appeals may resolve
whether the error affected the defendant’s substantial
rights and implicated the fairness, integrity, or public
reputation of judicial proceedings—and so (again) deter-
mine if the judgment must be revised, this time under
Rule 52(b). We remand in cases like these not only when
we are certain that curing the error will yield a different
outcome, but also in cases where we think there’s a rea-
sonable probability that will happen. See, e.g., Skilling v.
United States, 561 U.S. 358, 414 (2010) (harmless error);
Tapia v. United States, 564 U.S. 319, 335 (2011) (plain
error); United States v. Marcus, 560 U.S. 258, 266–267
(2010) (plain error).
To know this much is to know what should be done in
our current case. A plain legal error infects this judg-
ment—a man was wrongly sentenced to 20 years in prison
under a defunct statute. No doubt, too, there’s a reason-
able probability that cleansing this error will yield a differ-
ent outcome. Of course, Mr. Hicks’s conviction won’t be
undone, but the sentencing component of the district
court’s judgment is likely to change, and change substan-
tially. For experience surely teaches that a defendant
entitled to a sentence consistent with 18 U.S. C.
§3553(a)’s parsimony provision, rather than pursuant to
the rigors of a statutory mandatory minimum, will often
receive a much lower sentence. So there can be little
doubt Mr. Hicks’s substantial rights are, indeed, impli-
cated. Cf. Molina-Martinez v. United States, 578 U. S. ___,
___ (2016). When it comes to the fourth prong of plain
error review, it’s clear Mr. Hicks also enjoys a reasonable
probability of success. For who wouldn’t hold a rightly
diminished view of our courts if we allowed individuals to
linger longer in prison than the law requires only because
Cite as: 582 U. S. ____ (2017) 3
GORSUCH, J., concurring
we were unwilling to correct our own obvious mistakes?
Cf. United States v. Sabillon-Umana, 772 F.3d 1328, 1333
(CA10 2014).
Now this Court has no obligation to rove about looking
for errors to correct in every case in this large country, and
I agree with much in Justice Scalia’s dissent in Nunez v.
United States, 554 U.S. 911, 911–913 (2008), suggesting
caution. For example, it rightly counsels against vacating
a judgment when we harbor doubts about a confession of
error or when the confession bears the marks of games-
manship. Nor should we take the government’s word for it
and vacate a judgment when we cannot with ease deter-
mine the existence of an error of federal law. Or when
independent and untainted legal grounds appear to exist
that would support the judgment anyway. Or when lightly
accepting a confession of error could lead to a circuit
conflict or interfere with the administration of state law.
No doubt other reasons too will often counsel against
intervening. But, respectfully, I am unaware of any such
reason here. Besides, if the only remaining objection to
vacating the judgment here is that, despite our precedent
routinely permitting the practice, we should be wary of
remanding a case without first deciding for ourselves the
latter elements of the plain error test, that task is so
easily done that in this case that I cannot think why it
should not be done. Indeed, the lone peril in the present
case seems to me the possibility that we might permit the
government to deny someone his liberty longer than the
law permits only because we refuse to correct an obvious
judicial error.
Cite as: 582 U. S. ____ (2017) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
MARCUS DESHAW HICKS v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 16–7806. Decided June 26, 2017
CHIEF JUSTICE ROBERTS, with whom JUSTICE THOMAS
joins, dissenting.
Petitioner Marcus Deshaw Hicks pleaded guilty to
conspiracy to possess with intent to distribute crack co-
caine in violation of federal law. Between the time Hicks
was sentenced for that crime and his direct appeal, this
Court decided Dorsey v. United States, 567 U.S. 260
(2012), holding that the Fair Sentencing Act applies to
defendants like Hicks whose crimes predated the effective
date of the Act but who were sentenced after that date.
On direct appeal Hicks failed to argue that Dorsey entitled
him to a reduced sentence. Presented with no such claim,
the Fifth Circuit affirmed. Hicks now seeks certiorari.
The Government’s response is not to concede that the
Fifth Circuit’s judgment was wrong. Rather it is to re-
quest that this Court vacate that judgment and send the
case back to the Fifth Circuit so that the Court of Appeals
may conduct plain error review. My colleague concurring
in this Court’s order “cannot think of a good reason to say
no.” Ante, at 1 (opinion of GORSUCH, J.). After all, Hicks
was “wrongly sentenced to a 20-year mandatory minimum
sentence under a now-defunct statute.” Ibid. But, as the
Government itself acknowledges, that gets us past only
the first two prongs of this Court’s four-prong test for
plain error: There was an error and the error was plain in
light of Dorsey. See Puckett v. United States, 556 U.S.
129, 134–135 (2009). The Government does not contend
that Hicks also satisfies prongs three and four of the test
for plain error and that the judgment below rejecting
2 HICKS v. UNITED STATES
ROBERTS, C. J., dissenting
Hicks’s claim was therefore wrong. Brief in Opposition
12–13. No matter, says my colleague, because the out-
come on remand is a no-brainer. But without a determi-
nation from this Court that the judgment below was
wrong or at least a concession from the Government to
that effect, we should not, in my view, vacate the Fifth
Circuit’s judgment. See Nunez v. United States, 554 U.S.
911 (2008) (Scalia, J., dissenting).