PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
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.
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 standard, 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.
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 decide if
the judgment must be revised under Federal Rule of Criminal
Procedure 52(a). After identifying an unpreserved 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) determine 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 reasonable 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).
this much is to know what should be done in our current case.
A plain legal error infects this judgment-a man was wrongly
sentenced to 20 years in prison under a defunct statute. No
doubt, too, there's a reasonable probability that
cleansing this error will yield a different 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 substantially. 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, implicated. 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 we were unwilling to correct our
own obvious mistakes? Cf. United States v.
Sabillon-Umana, 772 F.3d 1328, 1333 (CA10 2014).
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 gamesmanship. Nor
should we take the government's word for it and vacate a
judgment when we cannot with ease determine 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
Justice Roberts, with whom Justice Thomas joins, dissenting.
Marcus Deshaw Hicks pleaded guilty to conspiracy to possess
with intent to distribute crack cocaine 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.
Government's response is not to concede that the Fifth
Circuit's judgment was wrong. Rather it is to request
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 Hicks's claim was
therefore wrong. Brief in Opposition 12-13. No matter, says
my colleague, because the outcome on remand is a no-brainer.
But without a ...