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United States v. Marroquin

United States Court of Appeals, Fifth Circuit

March 2, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
RAFAEL RIOS MARROQUIN, also known as Tomas Andres Marroquin, Defendant-Appellant UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
RAFAEL RIOS MARROQUIN, Defendant-Appellant

         Appeals from the United States District Court for the Southern District of Texas

         ON PETITION FOR REHEARING EN BANC

          Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

          PER CURIAM:

         The Court having been polled at the request of one of its members, and a majority of the judges who are in regular service and not disqualified not having voted in favor (Fed. R. Ap. P. 35 and 5th Cir. R. 35), rehearing en banc is DENIED. In the en banc poll, three judges voted in favor of rehearing (Judges Jones, Smith, and Ho), and twelve judges voted against rehearing (Chief Judge Stewart and Judges Dennis, Clement, Prado, Owen, Elrod, Southwick, Haynes, Graves, Higginson, Costa, and Willett).

          GREGG COSTA, United States Circuit Judge

          JERRY E. SMITH, Circuit Judge, joined by EDITH H. JONES and JAMES C. HO, Circuit Judges, dissenting from the denial of rehearing en banc:

         The panel opinion mutilates the test for plain-error relief. Every one of the panel's multiple mistakes favors Marroquin. And even under the relaxed standard that the panel accidentally announces, Marroquin falls far short of satisfying the test. Because the court should have vacated this aberrant opinion for en banc rehearing, I respectfully dissent.

         To obtain appellate relief from forfeited error, Marroquin must meet the difficult four-prong test. He must show (1) an error (2) that is plain and (3) affects substantial rights. "Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error―discretion which ought to be exercised only if the error 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)) (brackets in Puckett, some internal quotation marks omitted).

         I.

         Although, to its credit, the panel carefully avoids misquoting Puckett, it misstates the test by changing the words in three different places, in a way that is hugely misleading. I address each of those in turn.

         A.

         First, the panel omits the crucial word "seriously" from the paragraph in which it applies the Puckett test. The panel says, "That leaves the requirement that Marroquin show the error affected the fairness, integrity, or reputation of the proceeding." United States v. Marroquin, 874 F.3d 851, 855 (5th Cir. 2017).[1] There are no quotation marks, and there is no citation to Puckett or any other authority; the panel just sets forth an easier test, likely from inadvertence. Without even trying to explain why it believes the sentence affects―much less "seriously affects"―fairness, integrity, or reputation, the panel only gives the conclusional justification that "[w]e choose to correct this error in light of its effect on the sentence combined with the nature of the error." Id.

         The Supreme Court would not have used the word "seriously" unless it was "serious" about sending the message that fourth-prong relief is available only in exceptional circumstances. See Edward Goolsby, Comment, Why So Serious? Taking the Word "Seriously" More Seriously in Plain Error Review of Federal Sentencing Appeals, 51 Houston L. Rev. 1449 (2014). The ...


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