Henderson v. United States
June 25, 2012
Case #: 11-9307
Court Below: 646 F.3d 223 (5th Cir. 2011)
Full Text Opinion: www.ca5.uscourts.gov/opinions/pub/10/10-30571-CR0.wpd.pdf
Criminal Procedure: Whether an error can be "plain error” under Federal Rule of Criminal Procedure 52(b), when a law that was previously unsettled becomes settled during subsequent appeal.
Petitioner pled guilty to being a felon in possession of a firearm. The district court increased Petitioner’s sentence beyond the sentencing guideline range so he would be eligible for rehabilitative drug treatment. On appeal, the Court of Appeals for the Fifth Circuit noted that under the intervening case of Tapia v. U.S., __U.S.__, 131 S. Ct. 2382, 180 L. Ed. 2d 357 (2011), the district court had erred by increasing Petitioner’s sentence. However, the court ultimately held that the error was unpreserved because at the time of Petitioner’s sentencing hearing the law was unsettled, and therefore, the error was not "plain error.”
The issue before the Court is whether an error can be “plain error” if a law that is unsettled during trial becomes settled during the subsequent appeal.
Petitioner argues that there is a deep division between the circuits and the Supreme Court needs to resolve the split.