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SCOTUS: Miscalculated illegal re-entry sentence should be fixed

In a case argued this week, the U.S. Supreme Court appeared highly sympathetic to a Texas criminal defendant who happens to be an immigrant. When the defendant pled guilty to illegal re-entry, his sentence was miscalculated. Since the miscalculation was small, however, the 5th Circuit Court of Appeals decided it wasn't worth the trouble to resentence the man. The Supreme Court seemed to think that basic fairness requires it.

After his guilty plea, a probation officer mistakenly assigned Florencio R. a criminal history score of 4. He actually qualified for a lower score of 2. Criminal history scores indicate whether the defendant has ever been convicted of a previous crime and, if so, how serious a crime. They are used as part of the overall sentencing calculation under the federal sentencing guidelines. Florencio had once been convicted of misdemeanor assault.

With his criminal history score wrongly set at 4, Florencio's guideline sentence was between 77 and 96 months in prison. If it had been correctly set at 2, his sentence under the guidelines would have been between 70 and 87 months. He was sentenced to 78 months.

The error was not discovered until Florencio appealed. Defending the sentence, the U.S. solicitor general argued that Florencio should have protested his sentence earlier than he did. Also, he argued that Florencio's final sentence fell in both the correctly and incorrectly calculated sentencing ranges, so the error was "harmless."

Since the miscalculated sentence was still lawful, he argued, the error did not affect the fairness, integrity and public reputation of the criminal justice system.

The Supreme Court appears to disagree. In fact, Justice Elena Kagan brought up an opinion Justice Neal Gorsuch wrote when he was an appellate judge on the 10th Circuit Court of Appeals. In that opinion, Gorsuch wrote that when courts make errors in applying the federal sentencing guidelines, it raises obvious doubts about the integrity of the judicial system and should be considered plan error.

"What's fair about an error that the judge, in part, was a part of that could easily be corrected and that might very well result in a lower sentence to a defendant?" asked Justice Sonia Sotomayor. "What's fair about not correcting that error?"

Justice Stephen Breyer also appeared to be swayed by the arguments of Florencio's assistant federal public defender. She pointed out that, faced with similar errors, other circuits have felt bound to correct them.

"We ask the court to recognize what every circuit but the Fifth already has," said the assistant federal public defender. "That is, in the ordinary case, such an error seriously affects the fairness, integrity and public reputation of the judicial proceedings and warrants correction."

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