we'll hear arguments first this morning in case fourteen eighty nine thirteen molina martinez versus united states these are crooks mr chief justice and may please the court as this court recognized in pugh versus the united states the united states senate saying guidelines remain uniquely central to federal sentencing even where the district court ultimately chooses to sentence outside the guidelines because of the strong anchoring effect of the guidelines as also recognized in pew the natural effect of an erroneous lehi guideline range is to skew a defendant sentence higher than it would have been under the correct range yet when the district court has elected to sentence within what it believes to be the correct range it is typically very difficult to determine what the district court would have done had it been presented with the correct lower range if m this court's decision in williams versus united states the court said that guideline errors are nonetheless subject to the normal doctrines of harmless and plain error reviewed and not subject to automatic  reversal and so it's not clear that there was the guidelines violation here the guidelines were incorrectly calculated but it's not clear that at the end of the day there was a violation i mean is that really your response to justice ginsburg or  oversimplifying and there was a mis application of the guidelines but harmless and plain error doctrines applied to determine the remedy for that violation or mishap while there was a miscalculation i'm not sure if there was a miss application the that's the i think that's the issue in the case or or is this we believe this quibble wrong well we believe that there was a mis application because the guidelines w incorrectly calculated with respect to the defendant's criminal history and that is the type of thing that the statute justice ginsburg was referring to what says you should remain for subject course as this court said in williams to the normal doctrines of harmless and plain error and we're here today of course on a plane error case because we have a guideline miss application that unfortunately was not discovered by judge imposed that's correct just what does that mean does that mean that the burden of persuasion shifts to the prosecution we believe that the court's opinion and no one no actually supports a conceptualization that it simply gives the defendant an alternative way to satisfy his burden of persuasion which is done in a generalized rather than a case specific way suppose there is no evidence as as will may very often be the case first the judge says imposes as sentence within what the judge believes to be the guideline range but says nothing whatsoever beyond that and it turns out that that is not the correct god blinds range so that there is no evidence one way or the other about what the judge would have done had the judge understood the correct guidelines range we in that situation in that situation typically the result would be that the third prong of plain error review would be satisfied and the defendant would have shown an effect on his substantial rights so that means that the burden of persuasion in that situation is on the prosecution again we may be quibbling about terms but we believe that the defendant satisfies his burden of persuasion with generalized evidence tending to show th the natural effect of a guideline error is to affect the senate so i don't think i understand the difference between general and specific evidence is evidence and you sure inferences from all sorts of circumstances so i don't know why you call this general it's evidence ok let's assume the guideline was seventy to one hundred the erroneous guideline was eighty to one hundred and the right current guideline was seventy to one hundred would wait you think you're a general inference that the corrected guideline would have made any difference on that  would your honor our position is that any time the range is not the correct range there should be a presumption that it affected so what the shooting of the judge's mind in terms of the facts he gave you the max when it was eighty to one hundred what's going to change his mind about seventy to one hundred because of the fact that the sentencing commission gave a different range and it's expert advice and its expertise is something that this court has recognized factors heavily into district courts let's assume i don't believe there's a presumption ok it's very hard for me to understand what difference between seventy and one hundred eighty and one hundred could make in this case i have a difficulty understanding what difference the the criminal history category with make but i'll give you another example of overlapping guidelines a defendant who's never committed a crime and a defendant who has committed a crime i would be more inclined to say that an inference from the facts is that a defendant who's never been committed of a crime that the judge might take that into consideration even in an overlapping guideline case and send it back because we don't know how much mercy that judge might have shown but if i could defend that like yours has many criminal convictions be pretty close to saying i don't think he's going to make much of a different choice but on the other hand your honor in this case despite mr molina might be nice as criminal history the district judge imposed the bottom of what he believed the guidelines to be despite the government's request for a sentence at the top end of the guideline range and our position is that the natural  of the guidelines if you had objected what would the situation be he would have to establish that the error was not harmless or the the government would have to establish that it was on this right would there be a presumption of non harmlessness i believe under rule fifty two a there is in effect a presumption of non harmlessness that the government must rebut the government must show that the error was harmless to show that the error was harmless is the same as saying there is a presumption that it wasn't harmless i believe that if the way i normally talk i would normally say the burden the burden of a stablish ing it is on the government but i wouldn't say there's a presumption that i government is wrong but if the government makes no effort to do have the burden of persuasion at the outset to show that there was a miscalculation once you meet that his question was does the government then i believe his question was that the government then have the burden of persuasion to show no  he was careful not to use the word presumption or at least he did not use the word presumption is that the proper way to think of this case in your view and another way of asking the question of can to continue what justice a was required to do we need to use the word presumption here i don't think the word presumption is absolutely necessary it is the word that the court used in a lot but i think it's really viewed more as who the risk of non persuasion and what we're asking is that in the very limited context of a guideline range error the defendant should be deemed to have carried his burden by the generalized evidence that this court recognized in pew versus united states that the guidelines do affects and it says and that guideline ranges do affect what the district court where have we known that before i mean we had dic um in the united states versus a latino which said that there may be a special category there may be a special category of forfeited areas that can be corrected regardless of their effect on the outcome but this issue need not be really be addressed and you're saying and we have not found any such category in the past you're saying we have found we did finally discovered of well the lower courts this court has not found a presumption since a lot of but the court did give careful consideration to whether a presumption should apply to the particular type of error at issue and a lot of but more importantly the lower courts have looked at what this court said in a lotto and in a tiny handful of of errors they have adopted just such a rebuttal that's more we believe that it's not wrong and that the lower court's decisions of course do not bind the court but they are expressive of the experience of linguistic works if i could take you back to your answer to justice kennedy i take it that you don't need to use the word presumption right and yours the burden that you have to carry in a in plain a review is you have to show a reasonable probability and your argument would work just fine if you dropped the word presumption isn't that right and you just said that the anchor in effect of the guidelines creates a reasonable probability that the outcome would be different in a case in which the court initially thought that the range was different from what it turned out to be sort of the end who needs the word presumption we agree justice kagan unfortunately the fifth circuit did not say but we do believe that however you conceptualize it the helped if when you mistake them or when you don't apply them properly you automatically get a reverse which is what your argument here does that sound like an advisory guideline well justice scalia we disagree it's an automatic reversal that besides the third prong of plane error review there are two other very stringent wrongs the second and the fourth that must be met before there can be a reversal on plain er but with respect to the question of whether it makes the guidelines any less advisory we don't believe that it does it simply recognizes the fact that even though there are now advisory district court judges still find an influential and and it preceded the oral argument and the fifth circuit the government conceded that there was an error that was plain but they disputed that it affected substantial rights because of the overlap of the guidelines your argument has some appeal on the facts of this case because the judge and sentenced the defendant to a sentence at the bottom of what the judge understood to be the god mind range but would your argument apply to any sentence that was within both the original and the correct guideline range supposed to judge your head sometimes your client to eighty seven months which i i think is the top judge chose eighty seven that happens to fall within the correct guideline range on those facts would you infer that the judge would have imposed a lesser sentence our answer is that whenever the range changes in the absence of any other indication you should infer that the sentence there is at least a reasonable probability that the sentence would change there may be other contextual factors besides the high end of the guidelines that would allow the government to show that in fact it wouldn't have made a difference but if i understand your honor's question correctly with only the difference in the range we believe that that is a situation where you should assume there's a maximum you know what the correct one could give you up to ninety six if i understand it the defendant's not going to raise that objection is he if he believes that he could get more but if for example in this case the rein in correct range was seventy seven to ninety six if he got ninety six he might well insist upon appealing because he might think the judge would give me the high end of the correct range how about the quote i mean the question is if the judge the judge thinks it's seventy seven ninety six and she says eighty seven which is within that range and it turns out the correct range is seventy to eighty seven so the eighty seven is within the correct range as well it's the top of the correct range what what reason would there be to infer why wouldn't there be a natural probability that the judge would have given a lesser sentence if the judge thought that the top was eighty seven as opposed to ninety six the judge obviously thought in that situation the correct sentence is is eighty seven with respect i have to disagree with your premise because i don't believe it is just pick numbers i believe they look at the guideline range and typically determine whether the defendant should be low middle or high so the guideline range does make a difference and if you use an example suppose a person everybody pre sentence report government defen lawyer prosecutor everybody thought he's in column two ok he's not a first timer and now it turns out they made a mistake he is a first timer and so being arrested if this the pre sentence report says put him at the top of the range now it's a lower range but they know he's not a recidivist depending on the circumstance they might say no put him in the middle of the first timers i don't know you don't know they don't know nobody knows and so the question is we don't know really what the judge will do upon remained calm and says since suggests ask him that's what it  and so you're worried about whether you can work the language around to let you do that what is common sense absent questions from the other side which i suspect you can but nonetheless isn't that the issue that that is the issue and don't factor in the fact that you did not object surely surely there ought to be a penalty for that we don't treat cases where there has been an objection the same as we treat cases where where there has not been sending it back makes total sense when there's an objection that's that's that's wrongfully denied but but where you are or defense counsel has in effect assisted the courts here it seems to me we demand more and the court does demand more but it is much more difficult to secure relief on plain error review because of the other prongs of the rule anyway we've got because it does make sense and if we've got progress it is not a punishment to the lawyer for not having raised it is a set of circumstances where the result will make sense without unnecessary administrative problems a matter of m by not objecting but we have asked what are the other two elements that you think serve that purpose well first the second the fourth prong is the answer your question but first i have to say what are the second and fourth proves a second prong is that the arab must be playing which means it's not subject to reasonable to have you know big do it it that that doesn't satisfy my problem well many guideline errors are not we have ha plain error relieved denied repeatedly on the second the fourth prong that it must seriously affect the fairness integrity and public reputation of judicial proceedings is another hurdle that the defendant mr beat and plain error review a person is not in a better position by not objecting a person would be foolish not to make an objection that would lower the range because it's always better and asenath and proceeding to start out with a lower range even if fact i did file an anderson brief and it's not enough that the lawyer did not intentionally do it we demanded lawyers didn't they do it they're supposed to assist the court and we're the objection has not been made it's  an entirely different case when it comes up here but i would suggest the justice scalia that it is still far more difficult to secure a relief on plain error review even with the tweak to the third prong that we're prongs of plain error review and said even if you meet these you lose on the fourth braun for three different reasons first the court said that the the failed to make an objection that the same defense attorney had made in a previous illegal reentry case and third the defendant had an extraordinarily serious criminal history involving drugs and guns and that as an just put the we're trying to let let's assume that we're going to give you some relief that this far from clear but let's assume that we're trying to find out what the rule to be what the standard in the case you just explained to us in view should that case go back to the district court the case that i just described yes i i don't know whether i'd necessarily agree with that application of the fourth in the reply brief has gone on to consider the merits of a case after deciding a legal question presented by the petitioner and certainly the court always has the power and the discretion to address a question even that was not in the question presented or addressed in the court below and here the court below undisputedly addressed it and even if the court does not endorse the presumption we ask for it would be useful guidance to the lower court on the application of the third prong thank you counsel need to induce timely objections in the district court i think i'm concerned about getting hung up on the labels ok if you don't don't say it's a presumption we still have don't we the question of what happens if nobody who loses if  there's no evidence to move one way or another in a tie and it doesn't matter if you call it a presumption not who bears the burden of at least moving forward and certainly the burden of proof if one of these errors is on the record i think you're out say that's right yes the burden is on the defendant but does the defendant meet that burden by saying look there was a mistake in the guidelines we know that there's an anchoring effect that's what the courts and you that anchoring a fat creates a reasonable the same questions justice kagan have forget all the jargon you are a lawyer you want to prove it rained at noon on the fifth of february your witness says i heard pitter patter on the roof i looked outside water was going by the window anything else no well it might have been the window washer but there is no jury that couldn't find that it was raining same thing here case after case this court has said we assume we presume or they don't even use those words the guidelines influence the sentence that's what they meant by the word anchor if you look at the reality whether they depart or don't whatever you call it now there's some special word you can find evidence after of course the guidelines affect the therefore the judge now says nothing he just applies the guideline so we'd have to overcome about five cases in terms of what we said if we are going to rebut the common sense notion that of course using the wrong guideline had an effect on the sentence if it's an unusual case i e if it's the window washer let the government show it was the window washer but the normal case pitter patter means rain and the normal case is that the judge when he uses the guidelines or even when he uses them as a basis and says i'm departing that made a difference i think i think it isn't the number of points in there it's in my mind that's a question of how much weight to give the bare facts of the error of course the error in this case is you use the wrong range and so i think you're from i understand your honour's position to be is that the bare fact of the error the difference in the range itself establishes the fact insubstantial rights that's not usually how we do it we as in this case of one level movement on because of a criminal history scoring error that the sentencing guidelines themselves to you can offset with a departure because it leads to under representation of defendants recidivist potential so the courts can no nature and magnitude by magnitude i mean we're talking one level we're talking sixteen are we talking nine so there can be many cases i don't dispute will be many and there are many cases involving rain many i mean i don't know how many thousands but there are many common facts in thousands of cases where the government itself uses very similar kinds of evidence in order to show that it was really raining and here what we're doing is we're using very similar kinds of evidence namely that he use persuasion we make the assumption here we few of us have practiced under the guidelines maybe none of this is that the guidelines or the beginning point in almost every sentence that's the beginning point not the ending but the beginning point and the question is once this is shown why at a minimum can't you just ask the district judge if you want to say that there are sentencing miscalculations in twenty percent of the cases that they happen all the time that this is go before what's our rule you know what is the role of the court and not in this case we are calling the presumption of the court wants to opine in this case about what the standard should be we think the court could say something such as that a difference in the range the use of the wrong range creates some likelihood in every case that the sentence will be different but whether the likelihood rises to the required level of a reasonable probability is going to depend on the facts and circle happens we already answered that question and you and she you know the question was whether the likelihood was going to rise to the level of a significant risk and we said yes if you are used in the wrong range there's a significant risk that you would have made a different decision so significant risk actually seems higher to me than reasonable probability at least it's not demonst y lower so i would think that we've already said if you're using the wrong range because of the anchor in effect of the ranch and anchoring effect that is kind of mandatory it's you know we say that these guidelines are advisory but we the risk that's going to happen can be a million rated by certain things that a judge does but that risk is going to vary by case and the court said in that situation where there's a risk and it varies we're going to hold required a regular the regular individual showing the prejudice  individual showing can it be made on the basis surely of the mistake in the guidelines there is no extraneous evidence if you have a case where the iranians range is twenty two forty and the judge  es twenty and the correct range is zero to twenty is that a case in which the defendant has established a plain air with the caveat that he'd want to know the bit more about the facts and certainly want to know anything more about it because if the judge is within the guidelines he doesn't have to say anything more about it i think your honor if that's all you knew there was julie if you it's all you knew i would say the defendant probably is as as mad as a bird in that case ok so now let's say i mean this is why the problem it's what you want to call it a presumption or whatever is so difficult what if the guideline was twenty two to forty and the judge said thirty and the correct guideline was zero to thirty in the words half of them in the middle of the wrong and you say well maybe it's an error maybe it's not what in that case i think i can give you a concrete answer without knowing more about the facts and circumstance and that's not that's not that's why i don't understand why it's one answer zero to twenty two thousand and forty and another answer wanted to thirty and case argued well the courts of appeals are just finding all these prejudicial reversing that anyway don't bother doing cases if you're prejudiced let's come up with an automatic reversal rule and this court said no it's that serious errors are going to be corrected on plain and harmless error review but do a full record assessment each case and that's really all included something like this and some subset there will be plenty here question all you really have is what the judge did now of course if the government has more all you would be sa that this in and of itself shows a risk in this circumstance the reasonable probability whatever standard you're using of course the government's free to show that there are some things different about this proving that it was raining it's not a shift in the risk to say that the evidence that i mention proves rain and it's not a shift in the wrist just say that the defendant can come in and show it was the window washer the question is whether the burden which lies with the defendant is satisfied if all there is is that the judge applied the wrong guide and given the continuous statement in case after case in this court that of course judges whether they apply the god line or depart the god lines play a significant part in the sick in the sentence that occurs if all you have is that you've satisfied the substantial whatever it is you know what is it called the substantial i think give a plain error that affects substantial rights and if it is the case factually as this court has said it is that applying the guideline that you apply makes a difference to the sentence that does affect substantial rights he he's just borne the burden of proof by showing that i don't see why that's different than any other problem i think it's quite different and if i could use the example of this court decision in pocket versus united states this court has already spoken to how plainer works and one very serious sentencing error the government's breach of the guidelines related pleat promise at sentencing and pocket the court said not just you do play there it works in the usual way because procedural errors at sentencing and the court cited as an example a misapplication of the career offender guideline because because bush procedural error at sentencing is amenable to harmless error review and so we're going to hold the defendant to his usual burden difficult for the defendant to go back and say here's what the error was even though there's also a clear error or a plain error in what the original calculation was if you want to spew one of the i think to keep factual promise there it's not that the judge said nothing at all depending on the spread of the range by statute the judge is required this court decision to read it requires that the defendant at makes a non frivolous request for a variance the judge is choosing the guidelines range and green in the commission's recommendation instead of giving that non guideline sentence which i think explain that as well if we if we accept that the proposition that in every case in which there is an incorrect identification of a god blinds at the time of sentencing there has to be a unless the government can prove with some sort of evidence that it was harmless would there be any difference between the stammer and a case where there was an objection and a case where there was no objection nonprofit for your honor as far as i can tell the dishes briefs have been a little bit less than clue on what exactly he thinks the government's burden is by heard him say today and i believe the citations of page forty seven of his brief also indicate that the standard would be the williams does some work in these cases not as much in other settings because courts of appeals look at the plain language of the guidelines and application notes and believe that this follows from those language and more importantly for which mr cripps mentioned earlier he would not embrace the fifth circuits application were there anything we can look to or can you or your co counsel your colleague for the position or tell us with how often sentencing guidelines would occur twenty percent of the cases five percent in the case and when they do is that disruptive to ask the district what would you do remain a couple points on the statistics i believe there collected in footnote fourteen a petitioners brief and there are something like forty five hundred procedural sensing appeals about twenty four hundred of those are sensing guidelines appeals and about twenty percent of those or about four hundred eighty are reversed we haven't been able to ascertain how many of those are plain era cases versus harmless error cases but it's a substantial number across the judicial districts every year in terms of the cost  find a spot reconvene the parties transport a defendant from a distant location and then of course we've collected the appendix our brief situations where the remains of the sentencing generates another round of appeals and what you have not put in your brief i don't think is that they have been several circuits created a system where there is a limited remain and for purposes of finding out just what the judge thought about it that's not perfect but it seems to be workable and not quite as expensive but i think the real difference between us and you can i'm raising this because i see no reason you shouldn't address it squarely because i don't think this is a rule fifty case you say it's not about how to interpret rule fifty two b or fifty two a or a lot no it's a case about guidelines it is a case about what the guidelines are and how they affect  and once we work that out the answer will be obvious because i'm not going to disagree with your interpretation of a long no or fifty two but i am going to disagree about what you think the effect of failing to apply the right guideline is in the mind run of cases and once you agree with me about that this case would be over or if i agreed with you between us we and but that so that's that that's where the i mean the others might have some views just but but you see do you see do you see why i would you say keep pushing you in that i do your honor i understand the point i guess the way i'd try to bridge the gap between perhaps our positions is to recognize that in our view will fifty two is a capacious entire record for record inquiry and i think it leaves room it accommodates judges intuitions about how likely given errors are to have an effect in certain cases in our basic position here most fundamental position is don't blow up to fifty to be framework don't blow up the rule fifty two framework this court is applied in a number of cases and create i think two major problems one is the anomaly i mentioned with pocket earlier we're going to have courts saying well the supreme court in pockets  one kind of sensing error doesn't get a presumption to the usual one but it's different kind of sensing error in molina martinez gets a different kind of treatment that's a miserable no you see does it matter that this kind of there is never easy this is not an objection that indeed the problem free inquiry ends up being no different the defendants burdens of being no different in this class of cases under plainer than a harmless error it is marginally reducing the incentive you know sometimes so much of this is the use o presumptions but both sides are doing this case came up because the third circuit has a presumption that if they corrected it it says it we assume that if guidelines overlap the wrong guideline and there's like overlap that there is no way we assume there's no way you can prove error or so that it affected substantial rights and there are a number of circuits who have said that overlapping guidelines you could never prove that that seems that that's an assumption that's wrong under your cheek you'll ation of plain error review if that's of the fifth circuit were doing i would agree with your honor we don't industry a presumption either way i think the fifth circuit us as other circu more concrete here is that the parties were fighting about extremes sentence him the government said to the high end defended was arguing he's entitled to the low and there is some additional proof there the judge picks the lower if the guideline is an anchor which i think is almost on dispute it isn't bad enough to say it affected substantial rights we don't think so in this case i want to point the factors your honor mentioned i think on our side is the overlap in the range and the nature of the error here this is an error that can seem kind of apps true it's because of the happenstance of when arrests and sentencing were sequence the defendant has to criminate to recent felony convictions that aren't counted at all just drop out of the calculation and the commission realized that can happen in these cases it's a put in not as a general departure note but a specific specific application note recommending a departure in this kind of a case when this kind of under representation  so that the criminal history had less effect of the judge than it has on you that or perhaps i may write well i think that maybe that's your honor i guess i would just say that i think these are all factors and that if we look at a case specific determination i think the court of appeals could reasonably conclude kind of balancing those four facts i mentioned that the defendant had shown a possibility no doubt of a low sentence i think it's a close case but not a reasonable probability the last point i want to make your honor was just that we mentioned the courts of appeals experience on this point i think it's useful to look at what happened on adams to find a presumption of prejudice percent guidelines errors the next year it applied those presidents to find a presumption of prejudice for constructive amendments to indictments in two thousand and five and booker came down from this court it then applied those presidents to find a presumption of prejudice for book or for sentencing under mandatory sentencing guidelines i think it's going to be very difficult to confine as mr crooks makes the point this reply brief that the courts of appeals have been relatively restrained in finding errors one can debate that i think the point is that this court endorsers the cooke's you have four minutes remaining with respect to justice kennedy's question about the burden on the district courts of recent sayings we would point out that several lower courts in opinions we cited in the brief pointed out that a recent saying is not all that burdensome especially in light of the benefits of assuring that defendants are not serving more prison time than the district court one of them to do i did also want to address the government's point about the government touched on the issue of overlapping ranges versus ranges that don't overlap and we just wanted to point out that the effect of the guidelines is the same regardless of whether the correct and incorrect ranges overlap or not it's simply that the degree of the error the amount of excess imprisonment that is produced will be different it will be lower in the case of an overlapping range but i this court setting glover versus united states any extra amount of imprisonment effect substantial rights finally i just wanted to say that the courts of appeals have overwhelmingly recognize whether you call it a presumption or not that it is warranted to find that a change in the guideline range affected a defendant substantial rights because of the extreme likelihood that a guideline range error will skew the senate's and the lower courts have found in their experience that it's necessary to make that inference because of the great difficulty in the typical case of showing a case the effect of the type of the government is arguing for here and these two factors mean that this inference or presumption whatever its term is necessary to avoid in many cases the injustice of excess imprisonment and it will not blow up rule fifty two b is the government warns it's a modest tweak the one prong of the rule that will help the rule serve its basic purpose of fairness and for these reasons we asked that the court reversed the judgment below and remand for further proceeding thank you counsel cases you committed