conscience standard is the wrong approach for a court of appeals to apply under the fourth prong of plain error review the question remains how should a court of appeals exercise its discretion when confronted with an obvious guidelines air that probably result in a defendant sorry no longer prison sentence we ask the court to recognize what every circuit but the fifth already has that is in the ordinary case such an error seriously affects the fairness integrity and public reputation of the judicial proceedings and warrants correction one one day i mean if the person is still in prison one extra day that people cause people to look at judicial proceedings as lacking fairness and integrity i believe so under the under the analysis of the fourth prong certainly a sentence of an extra twenty years versus a day twenty years is worse but under the analysis of the fourth prawn the question really is does the nature of the air frustrate the purpose is served by the rule at issue and in the context of the guidelines  or guidelines air directly frustrates the very purpose is served by the sentencing guidelines scheme congressional goals to promote uniformity and proportionality and to avoid unwarranted disparity monye mean that the defendant is sentenced to the least amount of time necessary to effectuate the statutory goals and to have respect for the district or no and these are all reasons that you  would consider when the question is when there's an objection and the question is raised here we're dealing with the situation was there was no objection so we're in the context of player so it seems to me that you have to argue more than just this was wrong and it ought to be fixed agreed this court has always said something more is required but at this point a defendant has met its burden to show a plane error that affects substantial rights and  discretion should not be exercised bearing the it should be exercise routine well your honor i think the context is that fifty two b applies to the grand universe errors and so guideline errors remain a narrow type of error that kind of rise and statistically speaking in the last fiscal year of the thousands of sentencing appeals that were raised less than six percent got remanded because they raised a guideline calculation error so we have the empirical evidence which is cited on page twelve of the yellow reply brief that in fact it doesn't happen very often while your god look good here you are saying correction aring you are saying that this is a category where it should be exercise routine i think a guideline to present and made the nature of the guideline error is such that it ordinarily will have that effect but martinez the sentencing guidelines provide the essential framework for federal sentencing and there is a well documented including the fact that when there is an erroneous lehi guidelines range there's a significant risk that the defendant was sentenced to a longer prison time that he otherwise would have had the district court not been influenced by the air it's it seems more a problem three question isn't it the question you know the most guideline calculation errors are going to have an a direct nexus between the sentencing guideline error and the fact the separate inquiries will also often be examining the same or similar type of information on the record before it and  while it is true that martinez looks at the anchor in effect of the guideline to show that the guideline merits self can be evidence of an effect on substantial right the resulting harm of that is a longer prison sentence and an excess amount of prison is a serious harm that run has consequences both for society and the administration of justice i mean if we said that  every or is plain if it creates a risk that the defendant will serve a longer sentence than the defendant would have otherwise served i don't know what's left of the plane air or rule in criminal cases and you seem to be the quote you seem to your argument seems to be that an error is a plane unless it's harmless unless it is not harmless is not right no and there's actually quite a lot left of the plane air and also what is left of it in this context i mean you say three examples in your brief one is when the defendant has waived an objection to the direct appeal and the other is when the the defendant is serving a concurrently wanting sounds and you have others yes which we cite the tyson case on page eight in the yellow brief and that's a good example of where we have two different inquiries that are informed by the same sort of information the effect of the guideline in that case the court of appeals assume was met but denied relief under the fourth probably because it found that the ultimate purposes of sutton's were not frustrated by the guideline error because the guidelines and didn't serve the basis for the sense of the first place correction ok now if we were to apply that in other contacts what would be left of the plane and in criminal cases well every air is different and a factor for a court of appeals to consider under the fourth problem is the nature of the air and i think that can be broken down into two factors first for the court to look at what purposes are served by the rule in question and then to exam the record to see if it demonstrates that those purposes are actually frustrated by the air so i think that's a type of inquiry that's at least implicit in cotton and johnson in cases like that errors like that would error but the review in court says that the harmless error standard for non constitutional errors is mad but there is a chance that it had an effect on this  conviction so why wouldn't that be playing error well it likely could be a plane i mean no it the let me back up that the evidence your standard that has to be met under the third prong of the plane error is there is a low evidentiary standards a reasonable probability that's less than preponderance of the evidence so it's entirely possible that a court could look at the record and see that the third prong was met but then looking at the record in total find overwhelming and essentially uncontroverted evidence that the outcome was right not withstanding the air are you chang the the one of the primary differences is that the burden remains on the defendant the entire time during the plane error analysis the burden never chefs like it does under harmless error standard deal with that of the cop in the opposite direction i'm not sure i understand the question the defendant has the burden under plain or right so it should be harder  their approach that applied by the majority of circuits actually gives vitality to the player standard as the court expressed it in the law no and it turns on the seriousness of the air so it's going to be  formula that is in place under the plane air standard it still remains that the defendant prove all four problems what is different about a guidelines air is the nature of that air there's a particularly close nexus between the air and the outcome and how that outcome frustrates the purpose is served by the sentencing guidelines scheme will burn your answer to justice ginsburg's should be there can be some complexity and it seems to me that you have to confront the consequences of that choice to say that in the sentencing case an ordinary error is very close to pla error more serious from a constitutional error more serious than a violation of a statutory command here we're not even talking about something that's mandatory these guidelines exist in some kind of middle universe that i don't understand but that's another that's another question why is this is different well then that also doesn't turn on whether or not it's a constitutional or non constitutional error or that the sentencing guidelines are mandatory versus advisory it's looking at how close of the nexus exists between the air and how it affects the outcome and because the sentencing guidelines are the starting point for every sentence and are in the real basis what a sentence becomes anchored to we have empirical data which reflects there and green not been improperly influenced by it i think the basis for your or perhaps the basis for your exception is that the air is so precise typographical error has caused the person to and to have to stay in jail for another six months a typographical error in exactly six months so i think one of the considerations we take into account is the reputation for the judicial system the justice system and if you tell somebody well because of a typo the guy's going to stay in jail for six more months people say well that's not that's not fair on the other hand i don't think that takes into account there is a cost associated with that which is the the the remedy is you send it back for another sentencing hearing who goes how long how much time has passed the judge has to reconstruct the whole operation and that's caused by your client failure to object when he should have objected so why doesn't it make sense to say that it kind of makes a difference if you're talking about a relatively insignificant amount of time or any day in jail is not insignificant but there's a difference between an error that results an additional six months and an error that resulted in additional five years is that something that the court can consider or is it i guess is the first question i ask is your position one day and it's plain or i don't think the district courts privative to determine the appropriateness of a particular sentence to begin with as to relative cost certainly there's always some cost involved to reset and seeing but the fact is it is estate i think of the three prongs third in the fourth problem the third prong as being fairness a process where you given the process that you were entitled to constitutionally or statutorily and so on the third prong we've had many cases where elements were not given to a jury this is neither case  we've had cotton where drug amounts wasn't given to a jury we look at that third prong as a substantial deprivation of some form o constitutional or state right i think of the fourth prong as fairness of the ultimate outcome which is very different because often like in  element like drug amount wasn't given to a jury we look at the quantum of evidence and say would the outcome have been different and that's most of our cases  so substantial that the outcome was actually unfair and so for me that fourth pronk does serve even in sentencing guidelines a different function it talks finding is that the fairness of a judge just process of considering your sentence from a correct kind on was frustrated with third fourth prong goes to sear a substantial possibility that the outcome was affected that you would have received a lesser sentence is there an error in the way i'm looking at this no i don't believe so and in cotton it's not just what the court examined of what what the outcome would have been but but based on what that record demonstrated and i think that analysis would apply in this case because we don't have a record that demonstrates what a district court would have done by overwhelming and uncontroverted evidence especially when it's not just a mathematical error of the guideline but it's premised on a factual error in the criminal history well i think your point in your brief was he got at the low end of the guidelines seventy eight months despite all of the negative factors that the government points to in its briefs his serious criminal history etc etc the judge still sentenced and at the low end of the guy and so that demonstrates that it is possible not just substantially possible but that the judge will in fairness and upholding the integrity of  give him a lesser sentence correct yes it's a possible strong possibility yes ms tippett so i was wondering about our standard in a lot of the fourth prong talking about guided by the following test and went to exercise their discretion to correct a planner and suggested that they should correct a player whenever it's obvious or when it affects the fairness  well i think it's difficult difficult because there's not going to be that type of evidence on a record of what the public thinks but i think the formulation of the fourth pran public reputation of the judicial proceedings is is less of an exam it's not public reputation of the defendant it's of the judicial proceedings and so i do think that so it's a normative inquiry rather than the perko want to take that's what you're suggesting in which case should should the fact that a person spends a day in prison longer than the law permits you something we should care about yes especially when it results from an obvious and easily correctable error that we've made ourselves correct  mr chief justice that may please the court the play now rule is designed to capture a narrow set of errors that we as a society are not willing to subject to the ordinary rules of party presentation and forfeiture that govern federal proceedings the question here is whether clear guidelines errors errors as a class will almost always meet that test we think the answer is no and the petitioners argument to the contrary ignores fundamental aspects of the federal sentencing  and in fact the third circuit one of those two circuits since molino our team as has announced has made clear that the fourth prongs should be applied on a case specific basis and that even in a case where the first three problems are met even in the guidelines case for the first three prongs are met it imposes a considerable barrier to relief mr ellis can can i just justice course such when he was a judge wrote this opinion which i'm sure you've read many times and i just want to quote one sentence from it and then ask you what you think about it because he basically you know suggests why you maybe lose but this is what he said he might not agree with this any more who knows but he says 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 the threaten to require individuals to linger longer in federal prison than the law demands especially when the cost of correction is so small and i take that to be combining three things first you have the deprivation of liberty second you have in error as he says of your own devise in other words the court has something to do with it the product the probation officer has messed up and then the court hasn't  caught the error and third but the cost of correction the small certainly relatively smaller and you package those three things together and you get a you know a rule that treats these kinds of  differently that does mean that they're routinely as opposed to sparingly corrected so why isn't that right there's a lot packed into that so i think just sort of starting with sort of the man on the street and what what the view of the judiciary i think if you went on to explain that ours is a system a party presentation that's been designed so that the parties have an opportunity to raise errors and they are expected to do so that any complicated system like things but he would say here's this particular kind of error and and it's rare that all of these three things come together deprivation of liberties that's pretty common but low costs that's not so common and the fact that errors of the court's own make and that's really uncommon and you put all those three things together there's just one result that screaming out at you so you're exactly right that the deprivation of liberty is not so uncommon and this is the rule of criminal procedure so any time that this will comes into play deprivation of liberty is at stake so then we're talking about the cost and we think the cost might come in in two different ways one way might be in setting the standard as for when you might apply plane air but we think the court did that in a lot know that it was correct that standard was ratified in the two thousand and two amendments to the federal rules india where conform to a lot o and that this court has doesn't have the authority to change that standard outside of the rules enabling act in the procedures identified there and then you move on to the whether the court was one of the court's own making i just don't think that's quite right the probation officer is of course a part of the courts but the responsibility for raising errors is still lies with the defendant and the defendant has ample opportunity in most cases and indeed in this case to review the p s r and bring to the court's attention any errors and error in this case was one and in many cases will be one in which to defend its uniquely competent to identify and bring to the court's attention so you put all claim in this case we don't think every failure to spot an obvious error in the in the p s r would amount to deficient performance or or necessarily amount to prejudice under this under strickland and we think this case is about the category of  i think the nature of the guidelines of the air here should inform that analysis the petition has argued that we deny that it's relevant but that's not true we don't think it's grounds to create an exception to the rule and we don't think it's grounds to change that standard but i do think it's highly relevant to what reasonable even if they got there had been brought to the attention of the court and corrected it's going to be an unlikely case and an unusual case where that that is the type of bear that seriously affects the fairness integrity and public reputation of water may be there may be a case where it does right i mean we're talking about whatever the time is here but let's say the guideline says you should get somewhere between two and five and in fact between eight and ten  fact the right guideline was two hundred five would that be a situation where you said the balance worked out so that it would be plainer i think it's hard to give a concrete answer based on this you know fact that we do think that is a much more often more often will be met in cases where the sentence doesn't fall within the correct range and we do think as you noted before the magnitude of the air is is relevant to the analysis we also think that what's relevant is that the court could have question in my mind is should we proceed by category and people have been focusing which i agree with about the justice kagan that in your book was written by justice courses what people would think of this but i'm not thinking of what people would think of this i'm thinking of what the guidelines are about and we have one there was an error two it's clear and obvious three it did affect the parties right he went to jail least one day more ok so we got those three things and given those three things it's probably an arithmetic layer probably but not definitely and then we ask for did the error effect now there are three things here fairness in the second one is what i would focus on i'm not focusing on fairness i'm not focusing on public reputation of judicial proceedings i am focusing on the integrity of the judicial proceeding and the reason i'm focusing on it is because the guidelines have a special purpose and they have a special procedure the special purpose is to create a kind of uniformity among people who do the same thing in respect to their punishment and the special procedure is that the commission and the court cooperate in gathering statistical information so that the commission can see how that's working now as soon as you have people who depart for incorrect reasons from what they're supposed to put you muck up that statistical information and although you could say with just one or two it doesn't matter there is no way to distinguish between one or two and fifty one or fifty two and maybe one across the country but maybe one in a single district doesn't matter and so all those kinds of technical mistakes  affect the party that are clear do interfere significantly with the congressionally legislated purpose of the guidelines in the effort to implement them therefore considered as a class because of the difficulty of distinguishing among them we don't want to go close case by case distinguishing as a class where one two and three are met so is four to the least there is a presumption to that effect right that's how i would look at it and what's the answer to that so a couple responses to that just prior number one and pepper this court recognized that the sort of the sparely that congress is was worried about in the guidelines context is not the sort of spirit of this cause by the ordinary rules procedure and so we don't think there's any indication here that the kind of disparity that the congress was was concerned about is the type that that flows from the ordinary application of the plane air as for the nature of this of the guidelines and how they work we actually think that cuts the other way as i say we do think it's relevant but the difference in the senate and case is that unlike in a trial the outcome isn't binary so when you're talking about an area that meets the first three problems you're not talking about an error that made creates a reasonable probability  of a different outcome in the trial that is a conviction or acquittal you're talking about an error that creates a reasonable probability of some movement and the senate's but a defendant in the federal system isn't entitled in most cases to one particular sentence after do we can in been duly convicted rather they're entitled to one of a range of lawful sentences and the senate's in commission has established a framework in which there is for any given defend it with a given criminal history and a given offense conduct there is actually a range of reasonable sentences introduction to the initial version of the card lines which happen still to be there you will see that the purpose of the commission is first to create a set of guidelines and then through the procedures i'm talking about to see what judges actually do in administering the god lines so that those can be improved and changed over time now if we are looking at not what the judge did under the god one but what the judge thinks he did under the card line but he got the guideline all wrong then are we can't do it we can't carry that out as i say we might be able to live with one mistake in one district but then we have to distinguish which ones and there's no way to do that so you might end up with the same point i'm making before so i'm saying what the integrity is that is interfered with is the integrity of the congressionally mandated purpose and method through which the someone to consider a change will mr alyssa's work and if along those lines though congress did speak to this question the feedback loop problem that justice briar's been alluding to in thirty seven forty two i think that that provision very simply to f one was written to deal with preserved heirs and a mandatory system so when you haven't you haven't suggested the statutes ineffectual have you you'd have a stressed ignore the refer to preserve the heirs and to incorporate this stablish rules that's what the court said in williams that that that that may still is subject to harmless error will we see no reason why it wouldn't be subject to the plain air that shall is part of the mandatory regime i thought that was declared unconstitutional in booker so that's the first option that he gave me i think that's still open to the courts and put out seven of green all this court specifically flag that there's caution there is not meant to settle the question as to whether thirty suppose a district judge said all right you know there's a dispute about which what the guidelines range is one of the guidelines that's possible here has a range that includes the sentence of sixteen months and i have considered the statutory factors that i'm supposed to consider in identifying a just and appropriate sentence and i think sixteen months since it right on the head and that's the sentence that i'm going to impose and would be if if the shell is taken literally the that there would still that would that would still be subject to reversal wouldn't i think that's right i think the court dealt with that in williams when it said that the shall still subject to the harmless error rule and i think in that case it certainly would be harmless it may be worth going through why we think this particular error is not one that seriously affect the fairness and integrity so we've number up laid out a number of factors in our brief from pages thirty six to thirty nine but we think you three are the most important here and the first ones that you before i leave that i'd just like to nail this down because i harmless here will make sense to me in williamson in light of the language because the court has to determine that the sentence was imposed as a result of an incorrect was an act as part of the mandatory guideline system that what it was doing is implementing three seventy forty two eat which this court said was unconstitutional and booker and therefore struck it and so i think there's a decent a very good argument that in fact with it goes the subsequent provision that says when you violate a provision unconstitutional vision and thirty seven forty two here's what you do and so in this case i say there are three principle reasons why we think that there does not seriously affect the fairness integrity or public reputation of judicial proceedings number senate that was imposed fell within the corrected range so we know from that then the sentencing commission's expert judgment this is a reasonable sentence for a defendant with petitioners criminal history and offense conduct for a typical defend in that position number two the  necessary did we declare this this section unconstitutional and booker i mean we tried to save as much as we could and i don't know why we would have saved this one no that the court didn't there was a there was a speed about whether f would go down with  we don't think it needs to be resolved in this case because we do think it's talking about preserving errors in the plan or rules apply number three that are three reasons the district court imposed not just a sentence pegged to the bottom or top of what i thought was the correct range but somewhere in the middle  you know just over the bottom i think it seems to me all these one two and three run smack into molina martina's which you know basically rejected all all of these arguments and said it doesn't matter if your sentence and up in the middle because the nk the range does something it anchors people sentencing determinations and anchors them sufficiently so that even if you could have reached that sentence regardless of the range being wrong we think the error in the range matters and is likely to matter in the great majority of cases and you're suggesting that we ignore everything we said about that now not at all there are i think the court was martinez and it doesn't matter for that as to whether the change was a day or ten years it just doesn't the questions whether there's a reasonable probability of a different outcome and there is the question of the fourth prong is whether that's the sort of error that's so green just we won't submit to the ordinary rules pardon presentation and forfeiture and that's a broader inquiry we think and one in which it matters that it's a day or ten years and one in which it matters that this is the sort of error that the defendant had every opportunity to raise and in fact was uniquely competent to raise s seems like you're doing substantive reason which is what the fifth circuit was doing with its stance or borrowed a substantive due process right or a standard shock the conscience and applied it to the sentence and it sounds like with all your three reasons in your argument which is the only thing that matters is that it does this is a reasonable sentence them matter if it's not the census a district court would have given that's basically your argument to me we think that matters all right but why when the three prongs of the fourth the three arms of the fourth prong say fairness procedural right that's not a substantive right so a couple responses that you know we think it's not unfair because the contemporaneous objection rule is the ordinary rule and we think in the ordinary case that applying that rule and the consequences of that rule our judicial system what's fair about an error that the judge and part was a part of that could be easily corrected and that might very well result in a lower s fear not correct in that i think what's fair is that i think it's a system has to have rules in those rules have to have consequences and i think that that people would understand that and then the ordinary case that it does just the fact that the defendant didn't raise his area in timely manner is sufficient reason to say that we're not going to correct it on appeal you know that the cost of that's come up several times in this colloquy and our discussion and i think that the cost may be a reason to change the standard but we don't think it's  a reason to the court should or should consider in applying the standard we don't think for example that two otherwise identical trial errors should be subjected to a different standard because one came from a two day trial and the other two month trial and therefor more expensive to correct there again molina martinez is against you right because in that case we talked about the fact that it remained for resentencing i'm quoting now law not costless does not involve the same difficulties as a remain for retrial and we talked about the government had this concern over judicial resources and we specifically rejected that and we said you know that the resources are not sufficient for us to take that seriously so that the what the court said is that it's not the same as a retrial but the court also said is that it doesn't really matter because it's not relevant to the standard on the third prong and we agree it's the same under the fourth prong that the costs of recent it's and aren't relevant to the application of whether the air itself is one that significantly affects the fairness integrity and public reputation of judicial proceedings if we're going to compare the the cost and perfectly of the two systems wouldn't we have to account for the fact that under the regime you propose there are a lot more appeals that the courts of appeals have to resolve in the circuits where this rule exists or this presumption exists the government frequently confesses error to mathematical mistakes in the guidelines applications and it automatically goes back for recency without the need of a public resources being involved should that be a cost that we should consider or you would have a signal or so to be clear it's my position that cost is not relevant to applying the standard it might in the never get to the point where someone's filing an appeal about an error they didn't raise that's just an argument against player rule together isn't it no i don't think it is it's an error for keeping the player rule to be a narrow one to be strictly circumscribed and that to maintain the balance third prong because the third prong is is there reasonable probability of a different sentence and so you can answer that ask the judge but if the judge says yes there's still the fourth prong and there's still the full resetting that follows post merely martinez we haven't found any examples of cour utilizing that for a guidelines range hair in fact the seventh circuit said that's not about guideline range errors that's about the book or errors and whether they treated the guidelines advisory or mandatory the no further questions we've asked the court to or from the judgment if you count so is david's in seven minutes i would like to start with what justice breyer said about the guidelines as being a specialized body of guidance that has specialized proceedings and we can't ignore the context and the essential framework that the guidelines and the court's decisions regarding how those guidelines function just because we're under the fourth and so we disagree that that the factors that the government considers are even appropriate because they're directly at odds with the clear guidance the court has provided  also want to address the discussion about thirty seven forty two i agree that whether or not it's still viable doesn't have to be decided today but i do think it provides a clear congressional judgment that at the point at which subset of rights are affected it's at least congress's intention that the error is serious enough that it warrants problems want to enter have been met the fifth circuit applied the wrong legal standard under the fourth prong the government presents factors that are appropriate for district court to consider and that's why we ask this court to reverse the judgment and remand with instructions that the sentence be vacated and that this case be remanded to the district court for the sentencing when you draw a distinction between guidelines errors and other something errors yes and what would be the ground for about it would depend on the direct effect the particular sentencing air would have on the outcome and whether or not the air frustrated the purpose is served by the ruling question and that can be different and how the guidelines function i suppose there was a question about whether a defendant was properly treated as a if i understand the question correctly it would be a district court evaluation of the conduct as as opposed to the guideline if it's purely because i'm talking about a non god minds issue demonstrated that the district court was influenced in in choosing that sends because of that air then i think that it would reflect an area that improperly influences the discretion of the district court and could  thank you thank you counsel the case is submitted