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Buckley Commentary & Analysis

"Apropos of nothing: The possible demise of the Fifth Circuit post-sentencing objection" by Elizabeth R. Bailey

Elizabeth R. Bailey

Should the courts penalize criminal defendants on appeal when their attorneys fail to utter magical (but duplicative) words at the end of sentencing? The U.S. Court of Appeals for the Fifth Circuit continues to require a formal post-sentencing objection to the length of a sentence to preserve the issue for appeal, making it an outlier among the federal appellate courts. The Supreme Court will finally weigh in this December when it hears oral argument in Holguin-Hernandez v. United States, No. 18-7739.

Criminal defendants sentenced in the Fifth Circuit must say and do more than defendants in other circuits to receive the same treatment on appeal. After making an initial argument for a lower sentence than suggested by federal sentencing guidelines, defense attorneys in the Fifth Circuit must then also object to the reasonableness of the specific sentence ultimately issued in order to obtain a more favorable standard of review on appeal. If the defense fails to make that special objection, as was the case in Holguin-Hernandez, the Fifth Circuit treats the defendant as having failed to preserve the issue for appeal and applies the more stringent plain-error review. In contrast, defendants in other circuits need not make such an objection, because the other circuits view the arguments initially presented during the sentencing as sufficient notice that the defendant disagrees with the length — and, therefore, the reasonableness — of the sentence eventually imposed.

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