5th Circuit Rules Defendants Can Benefit From Changes in Law Made Before Appeal

07/27/12

On Wednesday, the New Orleans-based 5^th U.S. Circuit Court of Appeals said in a decision that changes made to law during the pendency of a case should affect the fate of a criminal defendant. The decision supports the opinion of a majority of U.S. circuits, which hold that the law at the time of appeal is relevant for deciding the outcome of a case and not the law during the time of trial. It means any changes made to law during the trial and until an appeal is filed would automatically apply to the case regardless of the law as it stood when the charges were first brought, or the alleged crimes committed, or even the time sentence was passed.

In the instant case before the 5^th Circuit Court of Appeals, the change of law at issue happened after trial and sentencing, but before appeal was filed.

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The case considered by the 5^th Circuit Court of Appeals involved the matter of one Jose Escalante-Reyes who had once entered the country illegally, and on March 2011 pleaded guilty to re-entering U.S. again, and illegally. The district court sentenced him to five years in prison including time for his need of doing anger management courses. Jose appealed to the 5^th Circuit and asked the appeals court to apply the June 2011 ruling in Tapia v. United States given after his sentencing was complete.

Under the ruling in Tapia, courts are not allowed to impose or lengthen a prison term to allow an offender the time to complete a treatment program. Jose held that he should benefit from the change in law and the time added to his sentence for anger management should be taken off. The 5^th Circuit concurred.

However, while writing for the 10-judge majority, Judge Catharina Haynes observed that the country’s circuit courts were split on the issue of whether to apply the new law in determining whether an error was “plain.” This is because normally, a defendant needs to object to the mistake of a trial court at the time of the error in order to raise the issue in appeal. If the defendant fails to raise the issue at proper time, then the appeals court considers whether the error was a “plain error.”

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At present, in such cases, the 9^th Circuit, San Francisco, and the DC Circuit, Washington apply the time-of-trial standard in determining such errors, but the 1^st, 2^nd, 10^th and 11^th circuits consider the law as it is during the time of appeal. With this latest decision, the 5^th circuit joins the majority.

Haynes wrote, “Instead of … potentially applying law we now know to be incorrect, we can simply apply the law as it is and determine whether the error is plain” as the purpose of appellate review was to “do justice.”

However, in three separate dissents, six judges criticized the majority’s approach and held that only the most egregious errors should be corrected on appeal, and that the instant case lacked such gravity.

The case from the 5^th Circuit is USA v. Escalante-Reyes, No. 11-40632.