Rosales-Mireles v. United States

129

Syllabus

certiorari to the united states court of appeals for the fth circuit No. 16–9493. Argued February 21, 2018—Decided June 18, 2018

Each year, district courts sentence thousands of individuals to imprison- ment for violations of federal law. To help ensure certainty and fair- ness in those sentences, federal district courts are required to consider the advisory United States Sentencing Guidelines. Prior to sentencing, the United States Probation Offce prepares a presentence investigation report to help the court determine the applicable Guidelines range. Ul- timately, the district court is responsible for ensuring the Guidelines range it considers is correct. At times, however, an error in the calcula- tion of the Guidelines range goes unnoticed by the court and the parties.

On appeal, such errors not raised in the district court may be remedied under Federal Rule of Criminal Procedure 52(b), provided that, as es- tablished in United States v. Olano, 507 U. S. 725: (1) the error was not “intentionally relinquished or abandoned,” (2) the error is plain, and

(3) the error “affected the defendant's substantial rights,” Molina-

Martinez v. United States, 578 U. S. 189, 194. If those conditions are met, “the court of appeals should exercise its discretion to correct the forfeited error if the error ` “seriously affects the fairness, integrity or public reputation of judicial proceedings.” ' ” Ibid. This last consider- ation is often called Olano's fourth prong. The issue here is when a Guidelines error that satisfes Olano's frst three conditions warrants relief under the fourth prong.

Petitioner Florencio Rosales-Mireles pleaded guilty to illegal reentry into the United States. In calculating the Guidelines range, the Proba- tion Offce's presentence report mistakenly counted a state misdemeanor conviction twice. As a result, the report yielded a Guidelines range of 77 to 96 months, when the correctly calculated range would have been 70 to 87 months. Rosales-Mireles did not object to the error in the District Court, which relied on the miscalculated Guidelines range and sentenced him to 78 months of imprisonment. On appeal, Rosales- Mireles challenged the incorrect Guidelines range for the frst time.

The Fifth Circuit found that the Guidelines error was plain and that it affected Rosales-Mireles' substantial rights because there was a “rea- sonable probability that he would have been subject to a different sen- tence but for the error.” The Fifth Circuit nevertheless declined to remand the case for resentencing, concluding that Rosales-Mireles had

Page Proof Pending Publication

130 ROSALES-MIRELES v. UNITED STATES

Syllabus

not established that the error would seriously affect the fairness, integ- rity, or public reputation of judicial proceedings because neither the error nor the resulting sentence “would shock the conscience.”

Held: A miscalculation of a Guidelines sentencing range that has been determined to be plain and to affect a defendant's substantial rights calls for a court of appeals to exercise its discretion under Rule 52(b) to vacate the defendant's sentence in the ordinary case. Pp. 137–145.

(a) Although “Rule 52(b) is permissive, not mandatory,” Olano, 507

U. S., at 735, it is well established that courts “should” correct a forfeited

plain error affecting substantial rights “if the error `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,' ” id., at 736. Like the narrow rule rejected in Olano, which would have called for relief only for a miscarriage of justice, the Fifth Circuit's shock-the-conscience standard too narrowly confnes the extent of the court of appeals' discretion. It is not refected in Rule 52(b), nor in how the plain-error doctrine has been applied by this Court, which has reversed judgments for plain error based on inadvertent or uninten- tional errors by the court or the parties below and has remanded cases involving such errors, including sentencing errors, for consideration of Olano's fourth prong. The errors are not required to amount to a “pow- erful indictment” of the system. The Fifth Circuit's emphasis on the district judge's “competence or integrity” also unnecessarily narrows Olano's instruction to correct an error if it seriously affects “judicial proceedings.” Pp. 137–139.

(b) The effect of the Fifth Circuit's heightened standard is especially pronounced in cases like this one. An error resulting in a higher range than the Guidelines provide usually establishes a reasonable probability that a defendant will serve a prison sentence greater than “necessary” to fulfill the purposes of incarceration, 18 U. S. C. § 3553(a). See Molina-Martinez, 578 U. S., at 198. That risk of unnecessary depriva- tion of liberty particularly undermines the fairness, integrity, or public reputation of judicial proceedings in the context of a plain Guidelines error because Guidelines miscalculations ultimately result from judicial error, as the district court is charged in the frst instance with ensuring the Guidelines range it considers is correct. Moreover, remands for resentencing are relatively inexpensive proceedings compared to re- mands for retrial. Ensuring the accuracy of Guidelines determinations also furthers the Sentencing Commission's goal of achieving uniformity and proportionality in sentencing more broadly, since including uncor- rected sentences based on incorrect Guidelines ranges in the data the Commission collects could undermine the Commission's ability to make appropriate revisions to the Guidelines. Because any exercise of dis-

Page Proof Pending PublicationCite as: 585 U. S. 129 (2018)

131

Syllabus

cretion at the fourth prong of Olano inherently requires “a case-specifc and fact-intensive” inquiry, Puckett v. United States, 556 U. S. 129, 142, countervailing factors may satisfy the court of appeals that the fairness, integrity, and public reputation of the proceedings will be preserved ab- sent correction. But there are no such factors in this case.

Pp. 139–142. (c) The Government and dissent maintain that even though the Fifth Circuit's standard was inaccurate, Rosales-Mireles is still not entitled to relief. But their arguments are unpersuasive. They caution that granting this type of relief would be inconsistent with the Court's state- ments that discretion under Rule 52(b) should be exercised “sparingly,” Jones v. United States, 527 U.

S. 373, 389, and reserved for “exceptional circumstances,” United States v. Atkinson, 297 U. S. 157, 160.

In con- trast to the Jones remand, however, no additional jury proceedings would be required in a remand for resentencing based on a Guidelines miscalculation. Plus, the circumstances of Rosales-Mireles' case are ex- ceptional under this Court's precedent, as they are reasonably likely to have resulted in a longer prison sentence than necessary and there are no countervailing factors that otherwise further the fairness, integrity, or public reputation of judicial proceedings. The Government and dis- sent also assert that Rosales-Mireles' sentence is presumptively reason- able because it falls within the corrected Guidelines range. But a court of appeals can consider a sentence's substantive reasonableness only after it ensures “that the district court committed no signifcant proce- dural error, such as failing to calculate (or improperly calculating) the Guidelines range.” Gall v. United States, 552 U.

S. 38, 51. If a district court cannot properly determine whether, considering all sentencing factors, including the correct Guidelines range, a sentence is “suffcient, but not greater than necessary,” 18 U. S.

C. § 3553(a), the resulting sen- tence would not bear the reliability that would support a “presumption of reasonableness” on review. See 552 U. S., at 51. And regardless of its ultimate reasonableness, a sentence that lacks reliability because of unjust procedures may well undermine public perception of the proceed- ings.

Finally, the Government and dissent maintain that the Court's decision will create an opportunity for “sandbagging” that Rule 52(b) is supposed to prevent. But that concern fails to account for the realities at play in sentencing proceedings, where it is highly speculative that a defendant would beneft from a strategy of deliberately forgoing an ob- jection in the district court, with hopes of arguing for reversal under plain-error review later. Pp. 142–145.

850 F. 3d 246, reversed and remanded.

Sotomayor, J., delivered the opinion of the Court, in which Roberts,

Page Proof Pending Publication

132 ROSALES-MIRELES v. UNITED STATES

Opinion of the Court

joined. Thomas, J., fled a dissenting opinion, in which Alito, J., joined, post, p. 145.

Kristin L. Davidson argued the cause for petitioner.

With her on the briefs were Maureen Scott Franco, Brad- ford W. Bogan, Jeffrey T. Green, Joshua J. Fougere, and Tim- othy Crooks.

Jonathan Y. Ellis argued the cause for the United States.

With him on the brief were Solicitor General Francisco, Acting Assistant Attorney General Cronan, Deputy Solici- tor General Dreeben, Robert A. Parker, and Kirby A.

Heller.* Justice Sotomayor delivered the opinion of the Court.

Federal Rule of Criminal Procedure 52(b) provides that a court of appeals may consider errors that are plain and affect substantial rights, even though they are raised for the frst time on appeal. This case concerns the bounds of that dis- cretion, and whether a miscalculation of the United States Sentencing Guidelines range, that has been determined to be plain and to affect a defendant's substantial rights, calls for a court of appeals to exercise its discretion under Rule 52(b) to vacate the defendant's sentence. The Court holds that such an error will in the ordinary case, as here, seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus will warrant relief.

Each year, thousands of individuals are sentenced to terms of imprisonment for violations of federal law. District courts must determine in each case what constitutes a sen-

*A brief of amici curiae urging reversal was fled for the National Asso- ciation of Criminal Defense Lawyers et al. by John D. Cline, Barbara

E. Bergman, Mary Price, Peter Goldberger, Sarah Gannett, and Daniel

Page Proof Pending PublicationCite as: 585 U. S. 129 (2018)

133

Opinion of the Court

tence that is “suffcient, but not greater than necessary,” 18

U. S. C. § 3553(a), to achieve the overarching sentencing

purposes of “retribution, deterrence, incapacitation, and re- habilitation.” Tapia v. United States, 564 U. S. 319, 325 (2011); 18 U. S. C. §§ 3551(a), 3553(a)(2). Those decisions call for the district court to exercise discretion. Yet, to ensure “ `certainty and fairness' ” in sentencing, district courts must operate within the framework established by Congress.

United States v. Booker, 543 U. S. 220, 264 (2005) (quoting 28

U. S. C. § 991(b)(1)(B)).

The Sentencing Guidelines serve an important role in that framework. “ `[D]istrict courts must begin their analysis with the Guidelines and remain cognizant of them through- out the sentencing process.' ” Peugh v. United States, 569

U. S. 530, 541 (2013) (quoting Gall v. United States, 552 U. S.

38, 50, n. 6 (2007); emphasis in Peugh). Courts are not bound by the Guidelines, but even in an advisory capacity the Guidelines serve as “a meaningful benchmark” in the initial determination of a sentence and “through the process of ap- pellate review.” 569 U. S., at 541.

Of course, to consult the applicable Guidelines range, a district court must frst determine what that range is.

This can be a “complex” undertaking. Molina-Martinez v.

United States, 578 U. S. 189, 193 (2016). The United States Probation Offce, operating as an arm of the district court, frst creates a presentence investigation report, “which in- cludes a calculation of the advisory Guidelines range it con- siders to be applicable.” Ibid.; see Fed. Rules Crim. Proc.

32(c)(1)(A), (d)(1); United States Sentencing Commission, Guidelines Manual § 1B1.1(a) (Nov. 2016) (USSG). That cal- culation derives from an assessment of the “offense char- acteristics, offender characteristics, and other matters that might be relevant to the sentence.” Rita v. United States, 551 U. S. 338, 342 (2007) (internal quotation marks omitted). Specifcally, an offense level is calculated by iden- tifying a base level for the offense of conviction and adjusting

Page Proof Pending Publication

134 ROSALES-MIRELES v. UNITED STATES

Opinion of the Court

that level to account for circumstances specifc to the defend- ant's case, such as how the crime was committed and whether the defendant accepted responsibility. See USSG §§ 1B1.1(a)(1)–(5). A numerical value is then attributed to any prior offenses committed by the defendant, which are added together to generate a criminal history score that places the defendant within a particular criminal history cat- egory. §§ 1B1.1(a)(6), 4A1.1. Together, the offense level and the criminal history category identify the applicable Guidelines range. § 1B1.1(a)(7).

The district court has the ultimate responsibility to ensure that the Guidelines range it considers is correct, and the “[f]ailure to calculate the correct Guidelines range consti- tutes procedural error.” Peugh, 569 U. S., at 537. Given the complexity of the calculation, however, district courts sometimes make mistakes. It is unsurprising, then, that “there will be instances when a district court's sentencing of a defendant within the framework of an incorrect Guidelines range goes unnoticed” by the parties as well, which may re- sult in a defendant raising the error for the frst time on appeal. Molina-Martinez, 578 U. S., at 193–194. Those de- fendants are not entirely without recourse.

Federal Rule of Criminal Procedure 52(b) provides that “[a] plain error that affects substantial rights may be consid- ered even though it was not brought to the [district] court's attention.” In United States v. Olano, 507 U. S. 725 (1993), the Court established three conditions that must be met be- fore a court may consider exercising its discretion to correct the error. “First, there must be an error that has not been intentionally relinquished or abandoned. Second, the error must be plain—that is to say, clear or obvious. Third, the error must have affected the defendant's substantial rights.” Molina-Martinez, 578 U. S., at 194 (citations omitted). To satisfy this third condition, the defendant ordinarily must “ `show a reasonable probability that, but for the error,' the

Page Proof Pending PublicationCite as: 585 U. S. 129 (2018)

135

Opinion of the Court

outcome of the proceeding would have been different.” Ibid. (quoting United States v. Dominguez Benitez, 542 U. S.

74, 76, 83 (2004)). Once those three conditions have been met, “the court of appeals should exercise its discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public reputation of judicial proceed- ings.” Molina-Martinez, 578 U. S., at 194 (internal quota- tion marks omitted). It is this last consideration, often called Olano's fourth prong, that we are asked to clarify and apply in this case.

Petitioner Florencio Rosales-Mireles pleaded guilty to ille- gal reentry in violation of 8 U. S. C. §§ 1326(a), (b)(2). The Probation Offce in its presentence investigation report mis- takenly counted a 2009 state conviction of misdemeanor assault twice. This double counting resulted in a criminal history score of 13, which placed Rosales-Mireles in criminal history category VI. Combined with his offense level of 21, that yielded a Guidelines range of 77 to 96 months. Had the criminal history score been calculated correctly, Rosales- Mireles would have been in criminal history category V, and the resulting Guidelines range would have been 70 to 87 months. See USSG ch. 5, pt. A (sentencing table).

Rosales-Mireles did not object to the double-counting error before the District Court. Relying on the erroneous presentence investigation report, and after denying Rosales- Mireles' request for a downward departure, the District Court sentenced Rosales-Mireles to 78 months of imprison- ment, one month above the lower end of the Guidelines range that everyone thought applied.

On appeal, Rosales-Mireles argued for the frst time that his criminal history score and the resulting Guidelines range were incorrect because of the double counting of his 2009 conviction. Because he had not objected in the District Court, the Court of Appeals for the Fifth Circuit reviewed for plain error. 850 F. 3d 246, 248 (2017).

Page Proof Pending Publication

136 ROSALES-MIRELES v. UNITED STATES

Opinion of the Court

Applying the Olano framework, the Fifth Circuit con- cluded that Rosales-Mireles had established that the Guide- lines miscalculation constituted an error that was plain, sat- isfying Olano's frst two conditions. It also held that the error affected Rosales-Mireles' substantial rights, thus sat- isfying the third condition, because there was “a reasonable probability that he would have been subject to a different sentence but for the error.” 850 F. 3d, at 249. In reaching that conclusion, the Fifth Circuit rejected the Government's argument that Rosales-Mireles would have received the same sentence regardless of the Guidelines error, because the District Court had denied a downward departure “based, in part, on Rosales-Mireles' criminal history,” which “errone- ously included an extra conviction.” Ibid.

The Fifth Circuit nevertheless declined to exercise its dis- cretion to vacate and remand the case for resentencing be- cause it concluded that Rosales-Mireles failed to establish that the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings. In its view, “the types of errors that warrant reversal are ones that would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seri- ously call into question the competence or integrity of the district judge.” Id., at 250 (internal quotation marks and alterations omitted). Because Rosales-Mireles' sentence of 78 months fell within the correct range of 70 to 87 months, the Fifth Circuit held that neither the error nor the resulting sentence “would shock the conscience.” Ibid.

The Fifth Circuit's articulation of Olano's fourth prong is out of step with the practice of other Circuits.1 We granted

1 Compare 850 F. 3d 246, 250 (CA5 2017), with United States v. Dahl, 833 F. 3d 345, 357, 359 (CA3 2016); United States v. Figueroa-Ocasio, 805

F. 3d 360, 367–368, 373–374 (CA1 2015); United States v. Sabillon-Umana,

772 F. 3d 1328, 1333–1334 (CA10 2014) (Gorsuch, J.); United States v.

Joseph, 716 F. 3d 1273, 1281 (CA9 2013); United States v. Garrett, 528 F. 3d

Page Proof Pending PublicationCite as: 585 U. S. 129 (2018)

137

Opinion of the Court

certiorari to resolve that confict, 582 U. S. 967 (2017), and now reverse.

Although “Rule 52(b) is permissive, not mandatory, ” Olano, 507 U. S., at 735, it is well established that courts “should” correct a forfeited plain error that affects substan- tial rights “if the error `seriously affects the fairness, integ- rity or public reputation of judicial proceedings.' ” Id., at 736 (quoting United States v. Atkinson, 297 U. S. 157, 160 (1936); alteration omitted); see also Molina-Martinez, 578

U. S., at 194–195. The Court in Olano rejected a narrower

rule that would have called for relief only “ ` “in those circum- stances in which a miscarriage of justice would otherwise result,” ' ” that is to say, where a defendant is actually inno- cent. 507 U. S., at 736 (quoting United States v. Young, 470

U. S. 1, 15 (1985)). By focusing instead on principles of fair-

ness, integrity, and public reputation, the Court recognized a broader category of errors that warrant correction on plain-error review. See 507 U. S., at 736–737.

Like the miscarriage-of-justice rule that the Court re- jected in Olano, the Fifth Circuit's standard is unduly re- strictive. To be sure, a conclusion that an error “shock[s] the conscience of the common man, serve[s] as a powerful indictment against our system of justice, or seriously call[s] into question the competence or integrity of the district judge,” 850 F. 3d, at 250 (internal quotation marks omitted), would demand an exercise of discretion to correct the error.

Limiting relief only to those circumstances, however, too narrowly confnes the extent of a court of appeals' discretion.

The “shock the conscience” standard typically is employed when determining whether governmental action violates due process rights under the Fifth and Fourteenth Amendments.

See County of Sacramento v. Lewis, 523 U. S. 833, 848, n. 8 (1998) (“[I]n a due process challenge to executive action, the

Page Proof Pending Publication

138 ROSALES-MIRELES v. UNITED STATES

Opinion of the Court

threshold question is whether the behavior of the govern- mental offcer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience”). This Court has said that the “shock the conscience” standard is satisfed where the conduct was “intended to injure in some way unjustifable by any government interest,” or in some circumstances if it resulted from deliberate indifference.

Id., at 849–850.

That standard is not refected in Rule 52(b) itself, nor in how this Court has applied the plain-error doctrine. The Court repeatedly has reversed judgments for plain error on the basis of inadvertent or unintentional errors of the court or the parties below. See, e. g., Silber v. United States, 370

U. S. 717, 717–718 (1962) (per curiam) (reversing judgment

for plain error as a result of insuffcient indictment); Bras- feld v. United States, 272 U. S. 448, 449–450 (1926) (revers- ing judgment for plain error where the trial judge improp- erly inquired of a jury's numerical division); Clyatt v. United States, 197 U. S. 207, 222 (1905) (reversing judgment for plain error where the Government presented insuffcient evidence to sustain conviction). The Court also “routinely remands” cases involving inadvertent or unintentional errors, includ- ing sentencing errors, for consideration of Olano's fourth prong with the understanding that such errors may qualify for relief. Hicks v. United States, 582 U. S. 924 (2017) (Gor- such, J., concurring).

The Fifth Circuit's additional focus on errors that “serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge,” 850 F. 3d, at 250 (internal quotation marks omitted), similarly alters the Rule 52(b) standard.

The Court has never said that errors must amount to a “pow- erful indictment” of the system, a phrase which implies by its terms that the only errors worthy of correction are those that rise to the level of grossly serious misconduct. Simi-

Page Proof Pending PublicationCite as: 585 U. S. 129 (2018)

139

Opinion of the Court

larly, the Fifth Circuit's emphasis on the “competence or in- tegrity of the district judge” narrows Olano's instruction that an error should be corrected if it seriously affects “judi- cial proceedings.” In articulating such a high standard, the Fifth Circuit substantially changed Olano's fourth prong.

The effect of the Fifth Circuit's heightened standard is es- pecially pronounced in a case like this one. A plain Guide- lines error that affects a defendant's substantial rights is pre- cisely the type of error that ordinarily warrants relief under Rule 52(b).

In Molina-Martinez, the Court recognized that “[w]hen a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant's ultimate sentence falls within the correct range—the error itself can, and most often will, be suffcient to show a reasonable probability of a different outcome absent the error.” 578 U. S., at 198. In other words, an error resulting in a higher range than the Guidelines provide usually establishes a reasonable probabil- ity that a defendant will serve a prison sentence that is more than “necessary” to fulfll the purposes of incarceration. 18

U. S. C. § 3553(a); Tapia, 564 U. S., at 325. “To a prisoner,”

this prospect of additional “time behind bars is not some theoretical or mathematical concept.” Barber v. Thomas, 560 U. S. 474, 504 (2010) (Kennedy, J., dissenting). “[A]ny amount of actual jail time” is signifcant, Glover v. United States, 531 U. S. 198, 203 (2001), and “ha[s] exceptionally se- vere consequences for the incarcerated individual [and] for society which bears the direct and indirect costs of incarcera- tion,” United States v. Jenkins, 854 F. 3d 181, 192 (CA2 2017). The possibility of additional jail time thus warrants serious consideration in a determination whether to exercise discretion under Rule 52(b). It is crucial in maintaining public perception of fairness and integrity in the justice sys-

Page Proof Pending Publication

140 ROSALES-MIRELES v. UNITED STATES

Opinion of the Court

tem that courts exhibit regard for fundamental rights and respect for prisoners “as people.” T. Tyler, Why People Obey the Law 164 (2006).

The risk of unnecessary deprivation of liberty particularly undermines the fairness, integrity, or public reputation of judicial proceedings in the context of a plain Guidelines error because of the role the district court plays in calculating the range and the relative ease of correcting the error. Unlike “case[s] where trial strategies, in retrospect, might be criti- cized for leading to a harsher sentence,” Guidelines miscalcu- lations ultimately result from judicial error. Glover, 531

U. S., at 204; see also Peugh, 569 U. S., at 537. That was

especially so here where the District Court's error in impos- ing Rosales-Mireles' sentence was based on a mistake made in the presentence investigation report by the Probation Of- fce, which works on behalf of the District Court. Moreover, “a remand for resentencing, while not costless, does not in- voke the same diffculties as a remand for retrial does.” Molina-Martinez, 578 U. S., at 204 (internal quotation marks omitted). “A resentencing is a brief event, normally taking less than a day and requiring the attendance of only the de- fendant, counsel, and court personnel.” United States v.

Williams, 399 F. 3d 450, 456 (CA2 2005).

Ensuring the accuracy of Guidelines determinations also serves the purpose of “providing certainty and fairness in sentencing” on a greater scale. 28 U. S. C. § 994(f); see also § 991(b)(1)(B); Booker, 543 U. S., at 264. The Guidelines as- sist federal courts across the country in achieving uniformity and proportionality in sentencing. See Rita, 551 U. S., at

349. To realize those goals, it is important that sentencing

proceedings actually refect the nature of the offense and criminal history of the defendant, because the United States Sentencing Commission relies on data developed during sen- tencing proceedings, including information in the presen- tence investigation report, to determine whether revisions to the Guidelines are necessary. See id., at 350. When sen-

Page Proof Pending PublicationCite as: 585 U. S. 129 (2018)

141

Opinion of the Court

tences based on incorrect Guidelines ranges go uncorrected, the Commission's ability to make appropriate amendments is undermined.2

In broad strokes, the public legitimacy of our justice sys- tem relies on procedures that are “neutral, accurate, consist- ent, trustworthy, and fair,” and that “provide opportunities for error correction.” Bowers & Robinson, Perceptions of Fairness and Justice: The Shared Aims and Occasional Conficts of Legitimacy and Moral Credibility, 47 Wake For- est L. Rev. 211, 215–216 (2012). In considering claims like Rosales-Mireles', then, “what reasonable citizen wouldn't bear a rightly diminished view of the judicial process and its integrity if courts refused to correct obvious errors of their own devise that threaten to require individuals to linger longer in federal prison than the law demands?” United States v. Sabillon-Umana, 772 F. 3d 1328, 1333–1334 (CA10 2014) (Gorsuch, J.). In the context of a plain Guidelines error that affects substantial rights, that diminished view of the proceedings ordinarily will satisfy Olano's fourth prong, as it does in this case.3 As the Fifth Circuit itself concluded, there is a reasonable probability that, without correction of

2 Similarly, the work of the Federal Bureau of Prisons is hindered by uncorrected Guidelines errors, because the Bureau relies, in part, on as- pects of the Guidelines calculation in designating and classifying prisoners based on security and program needs. See Federal Bureau of Prisons, Program Statement No. P5100.08, Subject: Inmate Security Designation and Custody Classifcation, ch. 2, p. 1, ch. 4, p. 8, ch. 6, p. 5 (Sept. 12, 2006).

3 The dissent maintains that “adhering to procedure” does not have “prime importance for purposes of the fourth prong” because the Court has held in some instances, where the error was not likely to have affected the substantive outcome, that the procedural error alone did not satisfy Olano's fourth prong. Post, at 151–152 (opinion of Thomas, J.) (citing Johnson v. United States, 520 U. S. 461 (1997); United States v. Cotton, 535 U. S. 625 (2002); United States v. Marcus, 560 U. S. 258 (2010)). The cases on which the dissent relies do not stand for the view, however, that procedural errors are unimportant or could never satisfy Olano's fourth prong, especially where, as here, the defendant has shown a likelihood that the error affected the substantive outcome.

Page Proof Pending Publication

142 ROSALES-MIRELES v. UNITED STATES

Opinion of the Court

the Guidelines error, Rosales-Mireles will spend more time in prison than the District Court otherwise would have considered necessary. 850 F. 3d, at 249. That error was based on a mistake by the Probation Offce, a mistake that can be remedied through a relatively inexpensive resentenc- ing proceeding.

Of course, any exercise of discretion at the fourth prong of Olano inherently requires “a case-specifc and fact-intensive” inquiry. Puckett v. United States, 556 U. S. 129, 142 (2009); see also Young, 470 U. S., at 16–17, n. 14. There may be instances where countervailing factors satisfy the court of appeals that the fairness, integrity, and public reputation of the proceedings will be preserved absent correction. But on the facts of this case, there are no such factors.4

The United States and the dissent agree with Rosales- Mireles that the Fifth Circuit's formulation of the standard for the exercise of discretion under Rule 52(b) “is an inaccu- rate description” of Olano's fourth prong. Brief for United States 34; post, at 146, n. 1 (opinion of Thomas, J.) (“[T]he Fifth Circuit's standard is higher than the one articulated in this Court's precedents”). They nevertheless maintain that Rosales-Mireles is not entitled to relief. We are unper- suaded, though a few points merit brief discussion.

First, the United States and the dissent caution that a grant of relief in Rosales-Mireles' case and in others like his would be inconsistent with the Court's statements that dis- cretion under Rule 52(b) should be exercised “sparingly,” Jones v. United States, 527 U. S. 373, 389 (1999), and reserved

4 As the dissent points out, post, at 153, a defendant bears the “burden to persuade the court that the error seriously affect[ed] the fairness, integ- rity or public reputation of judicial proceedings.” United States v. Vonn, 535 U. S. 55, 63 (2002) (internal quotation marks omitted). In the ordi- nary case, proof of a plain Guidelines error that affects the defendant's substantial rights is suffcient to meet that burden.

Page Proof Pending PublicationCite as: 585 U. S. 129 (2018)

143

Opinion of the Court

for “exceptional circumstances,” Atkinson, 297 U. S., at 160.

As an initial matter, Jones and the cases it relies on for the point that discretion should be exercised “sparingly” would have required additional jury proceedings on remand, either at resentencing or retrial. See 527 U. S., at 384, 389; see also Young, 470 U. S. 1; United States v. Frady, 456 U. S. 152 (1982); Henderson v. Kibbe, 431 U. S. 145 (1977). As we have explained, a decision remanding a case to the district court for resentencing on the basis of a Guidelines miscalculation is far less burdensome than a retrial, or other jury proceed- ings, and thus does not demand such a high degree of caution.

In any event, the circumstances surrounding Rosales- Mireles' case are exceptional within the meaning of the Court's precedent on plain-error review, as they are reason- ably likely to have resulted in a longer prison sentence than necessary and there are no countervailing factors that other- wise further the fairness, integrity, or public reputation of judicial proceedings. The fact that, as a result of the Court's holding, most defendants in Rosales-Mireles' situation will be eligible for relief under Rule 52(b) does not justify a deci- sion that ignores the harmful effects of allowing the error to persist.

Second, the United States and the dissent assert that, be- cause Rosales-Mireles' sentence falls within the corrected Guidelines range, the sentence is presumptively reasonable and “less likely to indicate a serious injury to the fairness, integrity, or public reputation of judicial proceedings.” Brief for United States 20–21; see also post, at 154. A sub- stantive reasonableness determination, however, is an en- tirely separate inquiry from whether an error warrants correction under plain-error review.

Before a court of appeals can consider the substantive rea- sonableness of a sentence, “[i]t must frst ensure that the district court committed no signifcant procedural error, such as failing to calculate (or improperly calculating) the Guide- lines range.” Gall, 552 U. S., at 51. This makes eminent

Page Proof Pending Publication

144 ROSALES-MIRELES v. UNITED STATES

Opinion of the Court

sense, for the district court is charged in the frst instance with determining whether, taking all sentencing factors into consideration, including the correct Guidelines range, a sen- tence is “suffcient, but not greater than necessary.” 18

U. S. C. § 3553(a). If the district court is unable properly

to undertake that inquiry because of an error in the Guide- lines range, the resulting sentence no longer bears the relia- bility that would support a “presumption of reasonableness” on review. See Gall, 552 U. S., at 51. Likewise, regardless of its ultimate reasonableness, a sentence that lacks reliabil- ity because of unjust procedures may well undermine public perception of the proceedings. See Hollander-Blumoff, The Psychology of Procedural Justice in the Federal Courts, 63 Hastings L. J. 127, 132–134 (2011) (compilation of psychology research showing that the fairness of procedures infuences perceptions of outcomes). The mere fact that Rosales- Mireles' sentence falls within the corrected Guidelines range does not preserve the fairness, integrity, or public reputation of the proceedings.5

Third, the United States and the dissent contend that our decision “creates the very opportunity for `sandbagging' that Rule 52(b) is supposed to prevent.” Post, at 149; Brief for United States 17–18, 27. But that concern fails to account for the realities at play in sentencing proceedings. As this Court repeatedly has explained, “the Guidelines are `the starting point for every sentencing calculation in the federal system,' ” Hughes v. United States, 584 U. S. 675, 686 (2018) (quoting Peugh, 569 U. S., at 542). It is hard to imagine that defense counsel would “deliberately forgo objection now” to

5 The dissent's discussion of Rosales-Mireles' criminal history, post, at 153–154, misses the point. That history is relevant to the District Court's determination of an appropriate sentence under 18 U. S. C. § 3553(a). It does not help explain whether the plain procedural error in Rosales- Mireles' sentencing proceedings, which may have resulted in a longer sen- tence than is justifed in light of that history, seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Page Proof Pending PublicationCite as: 585 U. S. 129 (2018)

145

Thomas, J., dissenting

a plain Guidelines error that would subject her client to a higher Guidelines range, “because [counsel] perceives some slightly expanded chance to argue for `plain error' later.” Henderson v. United States, 568 U. S. 266, 276 (2013) (empha- sis in original). Even setting aside the confict such a strat- egy would create with defense counsel's ethical obligations to represent her client vigorously and her duty of candor toward the court, any beneft from such a strategy is highly speculative. There is no guarantee that a court of appeals would agree to a remand, and no basis to believe that a dis- trict court would impose a lower sentence upon resentencing than the court would have imposed at the original sentencing proceedings had it been aware of the plain Guidelines error.

For the foregoing reasons, we conclude that the Fifth Cir- cuit abused its discretion in applying an unduly burdensome articulation of Olano's fourth prong and declining to remand Rosales-Mireles' case for resentencing. In the ordinary case, as here, the failure to correct a plain Guidelines error that affects a defendant's substantial rights will seriously af- fect the fairness, integrity, and public reputation of judicial proceedings. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further pro- ceedings consistent with this opinion.

It is so ordered.

Justice Thomas, with whom Justice Alito joins, dissenting.

The Court holds that, “in the ordinary case,” a miscalcula- tion of the advisory Sentencing Guidelines range will “seri- ously affect the fairness, integrity, or public reputation of judicial proceedings.” Ante, at 132. In other words, a de- fendant who does not alert the district court to a plain mis- calculation of his Guidelines range—and is not happy with

Page Proof Pending Publication

146 ROSALES-MIRELES v. UNITED STATES

Thomas, J., dissenting

the sentence he receives—can raise the Guidelines error for the frst time on appeal and ordinarily get another shot at a more favorable sentence. The Court's decision goes far be- yond what was necessary to answer the question presented.1 And it contravenes long-established principles of plain-error review. I respectfully dissent.

Under Federal Rule of Criminal Procedure 52(b), “[a] plain error that affects substantial rights may be considered even though it was not brought to the court's attention.” (Em- phasis added.) The “point of the plain-error rule” is to “re- quir[e] defense counsel to be on his toes.” United States v.

Vonn, 535 U. S. 55, 73 (2002). Its demanding standard is meant to “encourage timely objections and reduce wasteful reversals by demanding strenuous exertion to get relief for unpreserved error.” United States v. Dominguez Benitez, 542 U. S. 74, 82 (2004). If the standard were not stringent, there would be nothing “prevent[ing] a litigant from ` “sand- bagging” ' the court—remaining silent about his objection and belatedly raising the error only if the case does not con- clude in his favor.” Puckett v. United States, 556 U. S. 129, 134 (2009). Satisfying the plain-error standard “is diffcult, `as it should be.' ” Id., at 135.

This Court has held that Rule 52(b) is satisfed only when four requirements are met: “(1) there is `an error,' (2) the error is `plain,' ” “(3) the error `affect[s] substantial rights,' ” and “(4) . . . `the error “seriously affect[s] the fairness, integ-

1 We granted certiorari to decide whether “the fourth prong of plain error review [demands], as the Fifth Circuit Court of Appeals required, that the error be one that `would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.' ” Pet. for Cert. i; 582 U. S. 967 (2017). Although I doubt it changed the outcome in any case, I agree that the Fifth Circuit's standard is higher than the one articulated in this Court's precedents—at least to the extent it requires an uncorrected error to “shock the conscience.” See ante, at 136–138.

Page Proof Pending PublicationCite as: 585 U. S. 129 (2018)

147

Thomas, J., dissenting

rity or public reputation of judicial proceedings.” ' ” Hen- derson v. United States, 568 U. S. 266, 272 (2013). The fourth requirement—the one at issue here—is discretionary.

Ibid. It should “be applied on a case-specifc and fact- intensive basis.” Puckett, supra, at 142. And it cannot be satisfed by “a plain error affecting substantial rights . . . , without more, . . . for otherwise the discretion afforded by Rule 52(b) would be illusory.” United States v. Olano, 507

U. S. 725, 737 (1993). Instead, “only `particularly egregious

errors' ” will meet the fourth prong's rigorous standard.

United States v. Young, 470 U. S. 1, 15 (1985) (quoting United States v. Frady, 456 U. S. 152, 163 (1982)); see also United States v. Atkinson, 297 U. S. 157, 160 (1936) (explaining that courts should provide relief under plain-error review only in “exceptional circumstances”).

The Court holds that Guidelines errors will “ordinar[ily]” satisfy the fourth prong of plain-error review. Ante, at 145.

This result contravenes several established principles from our precedents.

To begin, the Court's decision is at odds with the principle that the fourth prong of plain-error review “be applied on a case-specifc and fact-intensive basis.” Puckett, supra, at

142. By holding that a Guidelines error “ordinarily will sat-

isfy [the] fourth prong” absent “countervailing factors,” ante, at 141–142, the Court creates what is essentially a rebuttable presumption that plain Guidelines errors satisfy Rule 52(b).

And, based on the Court's application of it today, this pre- sumption certainly must be diffcult to rebut. The Court matter-of-factly asserts, in a single sentence with no analy- sis, that “there are no [countervailing] factors” in this case that counsel in favor of affrmance. Ante, at 142. It does so without even discussing the particular details of the defend- ant's crime, what happened at his sentencing, the reasoning that the District Court employed, the difference between the

Page Proof Pending Publication

148 ROSALES-MIRELES v. UNITED STATES

Thomas, J., dissenting

defendant's calculated Guidelines range and the correct one, or where his sentence fell relative to the correct Guidelines range. This approach is neither “case-specifc” nor “fact- intensive.” Puckett, supra, at 142. The Court candidly ad- mits as much. See ante, at 142, n. 4. But this is exactly the kind of “ `per se approach to plain-error review' ” that we have consistently rejected. Puckett, supra, at 142.

The Court's rebuttable presumption also renders the fourth prong of plain-error review “illusory” in most Guide- lines cases. Olano, supra, at 737. The Court expressly states that Guidelines errors will satisfy the fourth prong in “the ordinary case.” Ante, at 145. But this Court has repeatedly held that the fourth prong limits courts' discre- tion to “correct[ing] only `particularly egregious errors.' ” Young, supra, at 15. Because Rule 52(b) “ `is not a run-of- the-mill remedy,' ” Frady, supra, at 163, n. 14, relief should be granted “sparingly” in “ `the rare case,' ” Jones v. United States, 527 U. S. 373, 389 (1999), and only in “exceptional cir- cumstances,” Atkinson, supra, at 160. Today's decision turns that principle on its head by making relief available “in the ordinary case.” Ante, at 132.

The Court asserts that relief under plain-error review need not be exceptional or rare when a remand would not require “additional jury proceedings.” Ante, at 143. But that distinction has no basis in the text of Rule 52(b) or this Court's precedents. The only Rule 52(b) precedent that the Court cites for this assertion is Molina-Martinez v. United States, 578 U. S. 189, 204 (2016). See ante, at 140. That decision rejected the Fifth Circuit's categorical rule requir- ing defendants to present “additional evidence” (beyond the Guidelines error itself) to prove prejudice under the third prong of plain-error review. See 578 U. S., at 197. In dicta it suggested that, “in the ordinary case,” the Guidelines error would be enough to satisfy the third prong's require- ment that the error affect substantial rights. Id., at 204.

And it rebuffed the Government's pragmatic “concern over Page Proof Pending PublicationCite as: 585 U. S. 129 (2018)

149

Thomas, J., dissenting

the judicial resources needed” if Guidelines errors usually satisfy the third prong of plain-error review. Id., at 203.

But Molina-Martinez did not discuss the fourth prong of plain-error review, which is at issue here and is an independ- ent requirement, see Olano, supra, at 737. Nor did it relax the plain-error standard whenever reversal would not re- quire “additional jury proceedings.” Ante, at 143. Thus, Molina-Martinez gives no support to the Court's innovation.

Additionally, the Court's encouragement of remands based on ordinary Guidelines errors undermines “the policies that underpin Rule 52(b).” Dominguez Benitez, 542 U. S., at 82.

As explained, the plain-error standard encourages defend- ants to make timely objections in order to avoid sandbagging and to prevent wasteful reversals and remands. After today, however, most defendants who fail to object to a Guidelines error will be in virtually the same position as those who do. Today's decision, especially when combined with Molina-Martinez, means that plain Guidelines errors will satisfy Rule 52(b) in all but the unusual case. That cre- ates the very opportunity for “sandbagging” that Rule 52(b) is supposed to prevent, Puckett, 556 U. S., at 134 (internal quotation marks omitted), by allowing a defendant who is aware of a mistake in the presentence report to “simply relax and wait to see if the sentence later str[ikes] him as satisfac- tory,” Vonn, 535 U. S., at 73. Oddly, defendants who do not object to a Guidelines error could be in a better position than ones who do. An objection would give the district court a chance to explain why it would “arrive at the same sentenc- ing conclusion” even if the defendant was correct about an alleged Guidelines error, which would “mak[e] clear” that the Guidelines error did not “adversely affect the defendant's ul- timate sentence.” United States v. Sabillon-Umana, 772

F. 3d 1328, 1334 (CA10 2014). Today's decision thus inverts

Rule 52(b) by giving defendants an incentive to withhold timely objections and “ `game' the system.” Puckett, supra, at 140.

Page Proof Pending Publication

150 ROSALES-MIRELES v. UNITED STATES

Thomas, J., dissenting

Even if it were appropriate to create rebuttable presump- tions under the fourth prong of plain-error review, the Court is wrong to conclude that the “ordinary” Guidelines error will “seriously affect the fairness, integrity, or public reputa- tion of judicial proceedings.” Ante, at 132. Whether a dis- trict court's failure to correctly calculate the advisory Guide- lines range satisfes the fourth prong of plain-error review will depend on the circumstances of each case. And the cir- cumstances of this case prove the folly of the Court's presumption.

The Court asserts that plain Guidelines errors must ordi- narily be corrected to ensure that defendants do not “linger longer in federal prison than the law demands.” Ante, at 141 (internal quotation marks omitted). But the Guidelines are not “law.” They neither “defne criminal offenses” nor “fx the permissible sentences for criminal offenses.” Beckles v.

United States, 580 U. S. 256, 262 (2017) (emphasis deleted).

Instead, they are purely “advisory” and “merely guide the district courts' discretion.” Id., at 265. They provide ad- vice about what sentencing range the Sentencing Commis- sion believes is appropriate, “but they `do not constrain' ” district courts. Ibid. Accordingly, district courts are free to disagree with the Guidelines range, for reasons as simple as a policy disagreement with the Sentencing Commission.

See Pepper v. United States, 562 U. S. 476, 501 (2011); 18

U. S. C. § 3661. In fact, district courts commit reversible

error if they “trea[t] the Guidelines as mandatory.” Gall v.

United States, 552 U. S. 38, 51 (2007). Although the Guide- lines range is one of the factors that courts must consider at sentencing, 18 U. S. C. § 3553(a), judges need not give the Guidelines range any particular weight. The only thing that “the law demands” is that a defendant's sentence be substan- tively reasonable and within the applicable statutory range.

Page Proof Pending PublicationCite as: 585 U. S. 129 (2018)

151

Thomas, J., dissenting

See Jones v. United States, 574 U. S. 948, 948–950 (2014) (Scalia, J., dissenting from denial of certiorari); Kimbrough

v. United States, 552 U. S. 85, 113–114 (2007) (Scalia, J.,

concurring).

The Court also justifes its presumption by repeatedly stressing the importance of procedural rules to the public's perception of judicial proceedings. See ante, at 141 (“[T]he public legitimacy of our justice system relies on proce- dures”); ante, at 144 (“[U]njust procedures may well under- mine public perception of [sentencing] proceedings”). It even cites a hodgepodge of psychological studies on proce- dural justice. Ibid. (citing Hollander-Blumoff, The Psychol- ogy of Procedural Justice in the Federal Courts, 63 Hastings

Putting aside the obvious problems with this research,2 the Court contradicts our precedents by suggesting that ad- hering to procedure has prime importance for purposes of the fourth prong. This Court has repeatedly concluded that purely procedural errors—ones that likely did not affect the

2 The article that the Court cites makes broad claims based on limited research. For instance, the article states that, “[w]hen people feel that they have received fair treatment, they are more likely to adhere to, ac- cept, and feel satisfed with a given outcome, and to view the system that gave rise to that outcome as legitimate.” Hollander-Blumoff 134. But the only support it provides for that proposition is a telephone survey of a few hundred Chicago residents. See id., at 134, n. 37 (citing T. Tyler, Why People Obey the Law 162 (2006)); see also id., at 8–15 (explaining the study's methodology). The article also draws conclusions about the gen- eral importance of “procedural justice” in court, based on marginally rele- vant studies of noncourt settings such as “arbitration and mediation,” interactions with “police officers” and “work supervisors,” and “highly relational settings like the family.” See Hollander-Blumoff 132–134.

Crucially, none of this research has any bearing on the far more compli- cated question of “procedural justice” at issue here: whether it is presump- tively unfair to penalize a defendant who fails to object to an error until appeal. The contemporaneous-objection rule, after all, is also a proce- dural rule that affects the fairness, integrity, and reputation of judicial proceedings.

Page Proof Pending Publication

152 ROSALES-MIRELES v. UNITED STATES

Thomas, J., dissenting

substantive outcome—do not satisfy the fourth prong of plain-error review. In Johnson v. United States, 520 U. S.

461 (1997), for example, the District Court failed to submit a materiality element to the jury, but this Court found that the fourth prong of plain-error review was not satisfed be- cause “the evidence supporting materiality was `overwhelm- ing.' ” Id., at 470. Reversal based on errors that have no actual “ `effect on the judgment,' ” this Court explained, “ `en- courages litigants to abuse the judicial process and bestirs the public to ridicule it.' ” Ibid. (quoting R. Traynor, The Riddle of Harmless Error 50 (1970)). Similarly, in United States v. Cotton, 535 U. S. 625 (2002), the indictment failed to allege a fact that increased the statutory maximum, but the evidence of that fact “was `overwhelming' and `essen- tially uncontroverted.' ” Id., at 633. This Court held that reversing a defendant's sentence based on such a technicality would be “[t]he real threat . . . to the `fairness, integrity, and public reputation of judicial proceedings.' ” Id., at 634.

And in United States v. Marcus, 560 U. S. 258 (2010), the Second Circuit had held that an ex post facto error automati- cally satisfes the plain-error standard, “ `no matter how un- likely' ” it was that the jury actually convicted the defendant based on conduct that predated the statute of conviction.

Id., at 261 (emphasis deleted). In reversing that decision, this Court emphasized that, “in most circumstances, an error that does not affect the jury's verdict does not signifcantly impugn the `fairness,' `integrity,' or `public reputation' of the judicial process.” Id., at 265–266. Thus, the Court is mis- taken when it asserts that, because Guidelines errors are procedural mistakes, they are particularly likely to implicate the fourth prong of plain error.

While the Court holds that the ordinary Guidelines error will satisfy the fourth prong of plain-error review, it admits that there can be “instances where countervailing factors”

Page Proof Pending PublicationCite as: 585 U. S. 129 (2018)

153

Thomas, J., dissenting

preclude defendants from satisfying the fourth prong. Ante, at 142. Because the Court does not question our existing plain-error precedents, see ante, at 142–143, the burden pre- sumably remains on defendants to establish that there are no such countervailing factors, and to persuade the appellate court that any countervailing factor identifed by the Gov- ernment is insuffcient. See Vonn, 535 U. S., at 63 (“[A] de- fendant has the further burden to persuade the court that the error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings” (internal quotation marks omitted)); Dominguez Benitez, 542 U. S., at 82 (“[T]he bur- den of establishing entitlement to relief for plain error is on the defendant claiming it”). But the Court does not explain what the defendant in this case has done to satisfy his burden.

If this case is an ordinary one, it highlights the folly of the Court's new rebuttable presumption. Petitioner Florencio Rosales-Mireles has a penchant for entering this country illegally and committing violent crimes—especially against women. A Mexican citizen, Rosales-Mireles entered the United States illegally in 1997. In 2002, he was convicted of assault for throwing his girlfriend to the foor of their apartment and dragging her outside by her hair. In 2009, he was convicted of aggravated assault with serious bodily injury and assault causing bodily injury to a family member.3 His convictions stemmed from an altercation in which he at- tempted to stab one man and did stab another—once in the shoulder and twice in the chest. In January 2010, Rosales- Mireles was removed to Mexico. But that same month he reentered the United States illegally. In 2015, he was con- victed in Texas state court of assaulting his wife and 14-

3 These assaults occurred in 2001, but Rosales-Mireles was not arrested for years—apparently because he was going by the name “Emilio Ruiz” at the time of the assaults. When Rosales-Mireles was eventually ar- rested in 2009, he had two outstanding warrants for other assaults of his wife.

Page Proof Pending Publication

154 ROSALES-MIRELES v. UNITED STATES

Thomas, J., dissenting

year-old son. During the altercation, Rosales-Mireles grabbed his wife by the hair and punched her in the face repeatedly.

Most recently, Rosales-Mireles pleaded guilty to illegal re- entry. See 8 U. S. C. §§ 1326(a), (b)(2). The District Court sentenced him to 78 months in prison, which was within the Guidelines range he argued for on appeal. See ante, at 135.

In choosing that sentence, the District Court emphasized that it was “the second time he's come to the courts for being here illegally”; that he had “attempted to hide in the United States with multiple aliases, birth dates, [and] Social Secu- rity numbers”; and that his “assaultive behavior” spanned from “at least . . . 2001 to 2015.” App. 20.

The sentence that Rosales-Mireles received was not only within both the improperly and properly calculated Guide- lines ranges but also in the bottom half of both possible ranges. See ante, at 135. If the District Court had used the proper Guidelines range at his initial sentencing, then the sentence that it ultimately gave Rosales-Mireles would have been presumptively reasonable on appeal. See 850

F. 3d 246, 250 (CA5 2017); Rita v. United States, 551 U. S.

338, 347 (2007). And the Fifth Circuit determined that his sentence was in fact reasonable. See 850 F. 3d, at 250–251.

Leaving that reasonable sentence in place would not “ `seri- ously affect the fairness, integrity or public reputation of ju- dicial proceedings.' ” Young, 470 U. S., at 15. A sentence that is substantively reasonable is hardly the kind of “partic- ularly egregious erro[r]” that warrants plain-error relief.

Frady, 456 U. S., at 163.

* * *

Rule 52(b) strikes a “careful balance . . . between judicial effciency and the redress of injustice.” Puckett, 556 U. S., at 135. Because today's decision upsets that balance for scores of cases involving Guidelines errors, I respectfully dissent.

Page Proof Pending Publication

155

Syllabus BENISEK et al. v. LAMONE, ADMINISTRATOR,

et al.

appeal from the united states district court for the district of maryland

No. 17–333. Argued March 28, 2018—Decided June 18, 2018

Appellants (plaintiffs below) are Republican voters who allege that Mary- land's Sixth Congressional District was gerrymandered in 2011 as politi- cal retaliation. In May 2017, six years after the Maryland General As- sembly redrew the Sixth District, appellants moved the District Court to enjoin Maryland's election offcials from holding congressional elec- tions under the 2011 map, and they urged the court to enter a prelimi- nary injunction by August 18 to allow time for the creation of a new districting map. The District Court denied the motion on August 24— fnding that plaintiffs had failed to show a likelihood of success on the merits—and stayed further proceedings pending this Court's disposition of partisan gerrymandering claims in Gill v. Whitford, ante, p. 48.

Appellants ask this Court to vacate the District Court's order and re- mand for further consideration of whether a preliminary injunction is appropriate.

Held: Under the circumstances here, the District Court's decision to deny a preliminary injunction was not an abuse of discretion. A preliminary injunction does not follow as a matter of course from a plaintiff's show- ing of a likelihood of success on the merits. A court must also consider, among other things, whether the movant has shown “that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20.

Here, those considerations tilt against appellants' request. First, a party requesting a preliminary injunction—in election cases as else- where—must generally show reasonable diligence. Cf. Holmberg v.

Armbrecht, 327 U. S. 392, 396. Here appellants did not seek a prelimi- nary injunction in the District Court until six years, and three general elections, after the 2011 map was adopted, and over three years after they fled their frst complaint. Appellants attribute their delay to a convoluted case history and discovery delays, but the delay largely arose from a circumstance within their control: namely, their failure to plead the claims giving rise to their request for injunctive relief until 2016.

Appellants' unnecessary, years-long delay in seeking injunctive relief weighed against their request. Second, a due regard for the public in-

Page Proof Pending Publication

156

Syllabus

terest in orderly elections supported the District Court's decision. See Purcell v. Gonzalez, 549 U. S. 1, 4–5. Appellants represented that any injunctive relief would have to be granted by August 18, 2017, to ensure the timely completion of a new districting scheme in advance of the 2018 election season. The District Court could not act within that time constraint, and determined it would be a mistake to adjudicate plaintiffs' claims in a fuctuating legal environment when this Court's forthcoming decision in Gill might provide frmer guidance. That determination was within the sound discretion of the District Court, which could have reasonably concluded that an injunction would have been against the public's interest in an orderly electoral process.

266 F. Supp. 3d 799, affrmed.

Michael B. Kimberly argued the cause for appellants.

With him on the briefs was Paul W. Hughes.

Steven M. Sullivan, Solicitor General of Maryland, argued the cause for appellees. With him on the brief were Brian

E. Frosh, Attorney General of Maryland, Adam D. Snyder,

Deputy Chief of Litigation, and Sarah W. Rice, Jennifer L.

Katz, and Andrea W. Trento, Assistant Attorneys General.*

*Briefs of amici curiae urging reversal were fled for the American Civil Liberties Union et al. by Theresa J. Lee, T. Alora Thomas, Dale E.

Ho, Cecillia D. Wang, Deborah A. Jeon, David D. Cole, Arthur N. Eisen- berg, Perry M. Grossman, and Samuel Issacharoff; for Bipartisan Current and Former Members of Congress by Elizabeth B. Wydra, Brianne J.

Gorod, and David H. Gans; for the Brennan Center for Justice at N. Y. U.

School of Law by Vincent Levy, Gregory Dubinsky, Matthew V. H. Noller, Wendy R. Weiser, Michael C. Li, and Thomas P. Wolf; for Common Cause by Emmet J. Bondurant, Gregory L. Diskant, and Jonah M. Knobler; for the International Municipal Lawyers Association et al. by G. Michael Parsons, Jr., Corey W. Roush, Charles W. Thompson, Jr., and Amanda Kellar Karras; and for Stephen M. Shapiro by Alan B. Morrison.

Briefs of amici curiae urging affrmance were fled for the State of Michigan et al. by Bill Schuette, Attorney General of Michigan, and Aaron

D. Lindstrom, Solicitor General, and by the Attorneys General for their

respective States as follows: Leslie Rutledge of Arkansas, Cynthia Coff- man of Colorado, Christopher M. Carr of Georgia, Curtis T. Hill, Jr., of Indiana, Jeff Landry of Louisiana, Joshua D. Hawley of Missouri, Michael DeWine of Ohio, Mike Hunter of Oklahoma, Alan Wilson of South Caro- lina, Ken Paxton of Texas, and Sean D. Reyes of Utah; for the State of Wisconsin by Brad D. Schimel, Attorney General of Wisconsin, Misha Tseytlin, Solicitor General, Kevin M. LeRoy, Deputy Solicitor General,

Page Proof Pending PublicationCite as: 585 U. S. 155 (2018)

157

Per Curiam

Per Curiam.

This appeal arises from the denial of a motion for a prelim- inary injunction in the District Court. Appellants are sev- eral Republican voters, plaintiffs below, who allege that Maryland's Sixth Congressional District was gerrymandered in 2011 for the purpose of retaliating against them for their political views.

In May 2017, six years after the Maryland General Assem- bly redrew the Sixth District, plaintiffs moved the District Court to enjoin Maryland's election offcials from holding congressional elections under the 2011 map. They asserted that “extend[ing] this constitutional offense”—i. e., the al- leged gerrymander—“into the 2018 election would be a mani- fest and irreparable injury.” Record in No. 1:13–cv–3233, Doc. 177–1, p. 3. In order to allow time for the creation of a new districting map, plaintiffs urged the District Court to enter a preliminary injunction by August 18, 2017. Id., at 32.

On August 24, 2017, the District Court denied plaintiffs' motion and stayed further proceedings pending this Court's disposition of partisan gerrymandering claims in Gill v.

Whitford, ante, p. 48. 266 F. Supp. 3d 799. The District Court found that plaintiffs had failed to show a likelihood of success on the merits suffcient to warrant a preliminary injunction. Id., at 808–814. The District Court also held

Amy C. Miller, Assistant Solicitor General, and Brian P. Keenan, Assist- ant Attorney General; for Freedom Partners Chamber of Commerce by Douglas R. Cox and Amir C. Tayrani; and for Sen. Joseph B. Scarnati III by Jason Torchinsky and Brian S. Paszamant.

Briefs of amici curiae were fled for the Campaign Legal Center et al. by Paul M. Smith, Ruth M. Greenwood, Nicholas O. Stephanopoulos, and Allison J. Riggs; for Governor Lawrence Joseph Hogan, Jr., et al. by James C. Martin, Colin E. Wrabley, M. Patrick Yingling, Brian A. Suth- erland, and Benjamin R. Fliegel; for Judicial Watch, Inc., et al. by Robert

D. Popper, Chris Fedeli, and T. Russell Nobile; for the National Associa-

tion for the Advancement of Colored People, Inc., et al. by Kristin Clarke, Jon Greenbaum, Ezra D. Rosenberg, William V. Custer, Jennifer B.

Dempsey, and Khyla D. Craine; and for Michael Kang by Daniel F. Kolb.

Page Proof Pending Publication

158

Per Curiam

that it was “in no position to award [p]laintiffs the remedy they . . . requested on the timetable they . . . demanded.” Id., at 815. The court explained that, notwithstanding its “diligence in ruling on the pending preliminary injunction motion (which has been a priority for each member of this panel),” plaintiffs' proposed August deadline for injunctive relief had “already come and gone.” Ibid.

In addition, the District Court emphasized that it was con- cerned about “measuring the legality and constitutionality of any redistricting plan in Maryland . . . according to the proper legal standard.” Id., at 816. In the District Court's view, it would be “better equipped to make that legal deter- mination and to chart a wise course for further proceedings” after this Court issued a decision in Gill. 266 F. Supp. 3d, at 816. Plaintiffs ask this Court to vacate the District Court's order and remand for further consideration of whether a preliminary injunction is appropriate.

We now note our jurisdiction and review the District Court's decision for an abuse of discretion, keeping in mind that a preliminary injunction is “an extraordinary remedy never awarded as of right.” Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 24 (2008). As a matter of equitable discretion, a preliminary injunction does not follow as a matter of course from a plaintiff's showing of a likelihood of success on the merits. See id., at 32. Rather, a court must also consider whether the movant has shown “that he is likely to suffer irreparable harm in the absence of prelimi- nary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id., at 20.

Plaintiffs made no such showing below. Even if we assume—contrary to the fndings of the District Court—that plaintiffs were likely to succeed on the merits of their claims, the balance of equities and the public interest tilted against their request for a preliminary injunction.

Page Proof Pending PublicationCite as: 585 U. S. 155 (2018)

159

Per Curiam

First, a party requesting a preliminary injunction must generally show reasonable diligence. Cf. Holmberg v. Arm- brecht, 327 U. S. 392, 396 (1946). That is as true in election law cases as elsewhere. See Lucas v. Townsend, 486 U. S. 1301, 1305 (1988) (Kennedy, J., in chambers); Fishman v.

Schaffer, 429 U. S. 1325, 1330 (1976) (Marshall, J., in cham- bers). In this case, appellants did not move for a prelimi- nary injunction in the District Court until six years, and three general elections, after the 2011 map was adopted, and over three years after the plaintiffs' frst complaint was fled.

Plaintiffs argue that they have nevertheless pursued their claims diligently, and they attribute their delay in seeking a preliminary injunction to the “convoluted procedural history of the case” and the “dogged refusal to cooperate in discov- ery” by state offcials. Reply Brief 22. Yet the record sug- gests that the delay largely arose from a circumstance within plaintiffs' control: namely, their failure to plead the claims giving rise to their request for preliminary injunctive relief until 2016. Although one of the seven plaintiffs before us fled a complaint in 2013 alleging that Maryland's congres- sional map was an unconstitutional gerrymander, that initial complaint did not present the retaliation theory asserted here. See Amended Complaint, Doc. 11, p. 3 (Dec. 2, 2013) (explaining that the gerrymandering claim did not turn upon “the reason or intent of the legislature” in adopting the map).

It was not until 2016 that the remaining plaintiffs joined the case and fled an amended complaint alleging that Mary- land offcials intentionally retaliated against them because of their political views. See 3 App. 640–643. Plaintiffs' newly presented claims—unlike the gerrymandering claim pre- sented in the 2013 complaint—required discovery into the motives of the offcials who produced the 2011 congressional map. See, e. g., Memorandum of Law in Support of Plain- tiffs' Motion To Compel, Doc. 111–1, p. 3 (Jan. 4, 2017) (de- scribing plaintiffs' demand that various state offcials “tes-

Page Proof Pending Publication

160

Per Curiam tify . . . and answer questions concerning legislative intent”).

It is true that the assertion of legislative privilege by those offcials delayed the completion of that discovery. See Joint Motion To Extend Deadlines for Completion of Fact Discov- ery and Expert Witness Disclosures, Doc. 161, pp. 1–2 (Mar.

3, 2017); Joint Motion To Extend Deadlines for Completion of Fact Discovery and Expert Witness Disclosures, Doc. 170, pp. 1–2 (Mar. 27, 2017). But that does not change the fact that plaintiffs could have sought a preliminary injunction much earlier. See Fishman, supra, at 1330. In considering the balance of equities among the parties, we think that plaintiffs' unnecessary, years-long delay in asking for prelim- inary injunctive relief weighed against their request.

Second, a due regard for the public interest in orderly elec- tions supported the District Court's discretionary decision to deny a preliminary injunction and to stay the proceedings.

See Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam).

Plaintiffs themselves represented to the District Court that any injunctive relief would have to be granted by August 18, 2017, to ensure the timely completion of a new districting scheme in advance of the 2018 election season. Despite the District Court's undisputedly diligent efforts, however, that date had “already come and gone” by the time the court ruled on plaintiffs' motion. 266 F. Supp. 3d, at 815.

(Such deadline has also, of course, long since passed for pur- poses of entering a preliminary injunction on remand from this Court.)

On top of this time constraint was the legal uncertainty surrounding any potential remedy for the plaintiffs' asserted injury. At the time the District Court made its decision, the appeal in Gill was pending before this Court. The District Court recognized that our decision in Gill had the potential to “shed light on critical questions in this case” and to set forth a “framework” by which plaintiffs' claims could be decided and, potentially, remedied. 266 F. Supp. 3d, at 815–

816. In the District Court's view, “charging ahead” and ad-

Page Proof Pending PublicationCite as: 585 U. S. 155 (2018)

161

Per Curiam

judicating the plaintiffs' claims in that fuctuating legal envi- ronment, when frmer guidance from this Court might have been forthcoming, would have been a mistake. Id., at 816.

Such a determination was within the sound discretion of the District Court. Given the District Court's decision to wait for this Court's ruling in Gill before further adjudicating plaintiffs' claims, the court reasonably could have concluded that a preliminary injunction would have been against the public interest, as an injunction might have worked a need- lessly “chaotic and disruptive effect upon the electoral proc- ess,” Fishman, supra, at 1330, and because the “purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held,” University of Tex. v. Camenisch, 451 U. S. 390, 395 (1981). In these particular circumstances, we conclude that the District Court's decision denying a preliminary injunc- tion cannot be regarded as an abuse of discretion.

The order of the District Court is Affrmed.

Page Proof Pending Publication