Henderson v. US: Plenty of Unicorns, But Is There Plain Error?

When must an error be plain to qualify as a plain error?

Federal Rule of Criminal Procedure 52(b) says that appellate courts can consider a "plain" error, even if it wasn't brought to the trials court's attention. In Johnson v. United States, the Supreme Court held that, when the governing law on an issue is settled against the defendant at the time of trial, but then changes in the defendant's favor by the time of appeal, "it is enough that an error be 'plain' at the time of appellate consideration."

Johnson, however, didn't address the timing of plain error review when the governing law on an issue is unsettled at trial, but clarified in the defendant's favor while his appeal is pending. That was the issue the Supreme Court addressed Wednesday in Henderson v. U.S.

The First, Second, Sixth, Tenth, and Eleventh Circuits apply Johnson's time-of-appeal standard in such cases. The Fifth, Ninth, and D.C. Circuits apply a time-of-trial standard. Henderson will resolve the split in a relatively simple sentencing case.

Armarcion Henderson pleaded guilty of being a felon in possession of a firearm. Although the sentencing guideline range was 33 to 41 months, Henderson was sentenced to 60 months of imprisonment to ensure that he had an opportunity to enroll in the federal Bureau of Prisons drug treatment program. His lawyer didn't object to the sentence until eight days later.

By the time Henderson's appeal reached the Fifth Circuit, the Supreme Court had ruled unanimously in Tapia v. United States that federal law "precludes federal sentencing courts from imposing or lengthening a prison term to promote an offender's rehabilitation." The appellate panel nevertheless affirmed the sentence because -- despite Tapia -- the error had not been "clear" or "plain" at sentencing.

During oral arguments on Wednesday, the debate over the time-of-trial versus time-of-appeal standard devolved into a practical discussion of unicorns and lawyering. Unicorns received four shout-outs in the Court as the lawyers and justices debated whether adopting the time-of-appeal standard would lead to sloppy lawyering.

The unicorn question was whether lawyers would intentionally refrain from objecting to an issue at trial in hope that a plain error on that issue would present itself by the time of the appeal. Justice Breyer claims that the lawyer who thinks that way "is like the unicorn, he doesn't really exist."

What do you think? If the Court adopts the time-of-appeal standard, will lawyers strategically refrain from objecting at trial to secure plain error review? Or is this breed of scheming lawyer just a figment of the judicial imagination?

Related Resources:

• U.S. v. Henderson (FindLaw's CaseLaw)
• Henderson v. U.S. Transcript (Supreme Court)
• Smith v. US: Who Bears the Burden of Conspiracy Withdrawal? (FindLaw's Supreme Court Blog)