from the United States District Court for the Southern
District of Texas
PETITION FOR REHEARING EN BANC
WIENER, HIGGINSON, and COSTA, Circuit Judges.
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).
COSTA, United States Circuit Judge
E. SMITH, Circuit Judge, joined by EDITH H. JONES and JAMES
C. HO, Circuit Judges, dissenting from the denial of
rehearing en banc:
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
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).
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.
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). 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
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 ...