IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30571

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMARCION D. HENDERSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

ON PETITION FOR REHEARING EN BANC

Before SMITH, SOUTHWICK, and GRAVES, Circuit Judges.

PER CURIAM:

The court having been polled at the request of one of the members of the

court, and a majority of the judges who are in regular active service and not disqualified not having voted in favor (FED. R. APP. P. 35 and 5TH CIR. R. 35), the

petition for rehearing en banc is DENIED. 

United States Court of Appeals

Fifth Circuit

F I L E D

December 15, 2011

Lyle W. Cayce

Clerk
No. 10-30571

2

In the en banc poll, 7 judges voted in favor of rehearing (Stewart, Dennis,

Elrod, Southwick, Haynes, Graves, and Higginson), and 10 judges voted against

rehearing (Jones, King, Jolly, Davis, Smith, Garza, Benavides, Clement, Prado,

and Owen).

ENTERED FOR THE COURT:

/s/ Jerry E. Smith 

JERRY E. SMITH

United States Circuit Judge

HAYNES, Circuit Judge, joined by DENNIS, Circuit Judge, dissenting:

I respectfully dissent from the court’s decision to deny rehearing en banc.

Two issues raised by the panel’s opinion merit the full court’s attention: (1) the

nature of the error that can be corrected under Federal Rule of Criminal

Procedure 35(a); and (2) the timing of when the “obviousness” of plain error is

judged – at the time of the error or at the time of the appellate decision.

I.

On the first issue, while the panel cites the appropriate standard – “errors

which would almost certainly result in a remand of the case to the trial court for

further action” – it applies this standard in a way that puts the opinion at odds

with our own precedent, Watkins, and that of other circuits. Federal Rule of

Criminal Procedure 35(a) provides that “[w]ithin 14 days after sentencing, the

court may correct a sentence that resulted from arithmetical, technical, or other

clear error.” FED. R. CRIM. P. 35(a). The Advisory Committee’s notes provide

that “[t]he authority to correct a sentence under this subdivision is intended to
No. 10-30571

1 This note addresses former Rule 35(c); however, the substantive provisions of Rule

35(c) were moved to subsection (a) in 2002. Therefore, earlier analyses of subsection (c) now

apply to subsection (a). 

3

be very narrow and to extend only to those cases in which an obvious error or

mistake has occurred in the sentence, that is, errors which would almost

certainly result in a remand of the case to the trial court . . . .” FED. R. CRIM. P.

35 advisory committee’s note.1

The Advisory Committee’s notes also explain that Rule 35(a) was intended

to codify the results in United States v. Cook, 890 F.2d 672 (4th Cir. 1989), and

United States v. Rico, 902 F.2d 1065 (2d Cir. 1990), subject to a more stringent

time requirement (now 14 days) for correcting sentencing errors. FED. R. CRIM.

P. 35 advisory committee’s note; see also United States v. Ross, 557 F.3d 237,

239-41 (5th Cir. 2009). In Cook, the appellate court upheld the district court’s

decision to amend a sentence that was not authorized under the sentencing

guidelines as they existed at the time. 890 F.2d at 675. Similarly, in Rico, the

Second Circuit upheld the district court’s decision to correct a sentence that

mistakenly applied a plea agreement. 902 F.2d at 1068. Thus, Rule 35(a) is

intended to allow a district court to correct a sentence that was unlawful. See

Cook, 890 F.2d at 675; Rico, 902 F.2d at 1068; FED. R. CRIM. P. 35 advisory

committee’s note. However, “[t]he subdivision is not intended to afford the court

the opportunity to reconsider the application or interpretation of the sentencing

guidelines or for the court simply to change its mind about the appropriateness

of the sentence.” FED. R. CRIM. P. 35 advisory committee’s note.

Other than the panel’s opinion, only one published Fifth Circuit case has

addressed whether a Rule 35(a) motion can preserve error. See United States v.

Watkins, 450 F.3d 184 (5th Cir. 2006) (per curiam). In that case, the defendants

filed a timely Rule 35(a) motion to raise their claim that application of a firearm

adjustment to their sentences would violate their Sixth Amendment rights. Id.
No. 10-30571

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In discussing this issue, Watkins stated: “The defendants were sentenced before the

mandatory provision ofthe Sentencing Guidelines were modified and rendered advisory by the

United States Supreme Court in [Booker]. . . . The defendants first raised their Sixth

Amendment claim in a timely Fed. R. Crim. P. 35(a) motion, after the district court had orally

pronounced the defendants’ sentences. We conclude that they preserved the error.” 450 F.3d

at 185.

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at 185. They had not raised that point of error before the district court

announced their sentences. Id. Our court concluded that their Rule 35(a)

motion was sufficient to preserve the error. Id.

In distinguishing Watkins,the panel looked beyond the facts set outin the

Watkins opinion.2 The underlying record in Watkins indicates that the

defendants filed a Rule 35 motion because a Supreme Court case issued three

days after their sentencing rendered their sentence unlawful. That Supreme

Court opinion was issued during the period that the district court could have

corrected its error under Rule 35. The panel distinguished Watkins because

here, the Supreme Court’s opinion in Tapia v. United States, 131 S. Ct. 2382

(2011), was issued after the case had already been appealed and after the

fourteen-day time period during which the district court could have corrected the

error had expired. Watkins itself, however, made no such distinction, and I do

notthink itis appropriate to “go behind”the published opinion to introduce facts

not therein expressly relied upon.

Several other circuits have indicated that Rule 35 permits a district judge

to correct errors of law. See Cook, 890 F.2d at 675 (noting that the district court

could correct a sentencing error because the original sentence “was not a lawful

one”); Rico, 902 F.2d at 1068 (upholding a sentencing modification because the

original sentence was an “illegal sentence”); United States v. Himsel, 951 F.2d

144, 147 (7th Cir. 1991) (noting that “the district judge had authority to vacate

[a defendant’s] first sentence if that sentence was illegal”); United States v.

Quijada, 146 F. App’x 958, 971 (10th Cir. 2005) (unpublished) (concluding that
No. 10-30571

3 The sequence of events in this case was that the sentencing hearing took place, eight

days later Henderson filed his motion, two days later the court entered a written judgment of

conviction and sentence containing the sentence announced at the oral hearing. Thereafter,

the court ordered briefing on the Rule 35(a) motion before concluding that it could not grant

the motion because, by the time it ruled, more than fourteen days had passed. Whether or not

that is true, I conclude that the district court erred by not granting the motion within the

(continued...)

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a mistake or violation of the law was clear error). The panel opinion represents

a divergence (if not a split) from those cases, worthy of the full court’s consideration.

Moreover, it would seem odd not to interpret “clear error” to mean “legal

error.” If the district court could not correct a legal error, Rule 35’s “other clear

error” would seem to have little meaning since “arithmetical” and “technical” are

already listed. If this court concludes that “clear error” means “legal error,” then

the district court would have had the authority to correct Henderson’s sentence

at the time Henderson filed his Rule 35(a) motion. Even under the law as it

existed at the time of Henderson’s Rule 35(a) motion, Henderson’s sentence

would likely have been considered unlawful. Certainly, Tapia makes clear that

it is. Additionally, this is not a situation where the district court would have

simply “changed its mind” or made a different discretionary call about

Henderson’s sentence, as it could have found that the sentence originally

imposed was unlawful under 18 U.S.C. § 3582(a).

Thus, practically speaking, it makes little sense not to construe Rule 35

to permit correction of legal errors within the 14 day period. One could construe

the panel opinion to mean that even though the district court realizes a legal

error, the parties must still go through a time-consuming and expensive delay

to fix it. Rule 35’s strictures seem more directed to avoiding “flip-flopping” than

to avoiding correction of legal errors. It would seem strange that a point of legal

error actually raised to the district court and able to be ruled upon by that court

while the court still was within the time for correcting the error3 would be
No. 10-30571

3

(...continued)

fourteen days in light of Henderson’s timely motion.

4 The Government’s citation to Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423

(2009), adds little to the discussion, as Puckett did not address when plain error is evaluated.

The Government concludes that because Puckett states that for an error to be plain, it “must

(continued...)

6

considered the same way as a point never raised at all in the district court.

Therefore, I would recommend concluding that Henderson’s Rule 35(a) motion

preserved the point of error adequately, and this court should review

Henderson’s claim de novo. United States v. Oliver, 630 F.3d 397, 413 (5th Cir.

2011) (noting that an issue raised and rejected in the district court is reviewed

de novo), cert. denied, No. 11-5508, 2011 U.S. LEXIS 8503 (Nov. 28, 2011).

Under a de novo standard of review, Henderson would be entitled to a new

sentencing hearing.

II.

If the panel correctly determined that the Rule 35(a) motion did not

preserve the error, then the question is raised whether the “obviousness” of the

error made is judged at the time of the error or at the time of appeal. The panel

opinion, with little discussion, concludes that error is judged at the time of the

proceeding in question (here, pre-Tapia, at the sentencing hearing). In so doing,

the panel opinion does not acknowledge either our intra-circuit split or the intercircuit split on this question. To understand this issue, a bit of history is

necessary. The Supreme Court established in Johnson v. UnitedStates, 520 U.S.

461, 468 (1997) that “where the law at the time of trial was settled and clearly

contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’

at the time of appellate consideration.” 

The Government argued in this case that “if the law at the time of trial is

not settled, it is not enough that the error be plain at the time of appellate

consideration.” The Government cites no authority for its contention4; instead,
No. 10-30571

4

(...continued)

be clear or obvious, rather than subject to reasonable dispute,” id. at 1429, that means that

“if the law is unclear at the time of trial . . . the reviewing court considers the status of the law

at the time of trial.” 

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it simply assumes that because the Supreme Court stated that “where the law

at the time of trial was settled and clearly contrary to the law at the time of

appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration,” Johnson, 520 U.S. at 468, the converse of that statement must also be

true. However, the issue is not nearly so clear, as the Supreme Court has left

open the question of whether plain error would be established “where the error

was unclear at the time of trial but becomes clear on appeal because the

applicable law has been clarified,” United States v. Olano, 507 U.S. 725, 734

(1993), and our sister circuits have split over whether Johnson applies to the

plain error analysis when the law was unclear at the time of trial and later

becomes clear. The Ninth and District of Columbia Circuits hold that if the law

is unclear at the time of trial and later becomes clear, the exception laid out in

Johnson does not apply, and the error is evaluated based on the law as it existed

at the time of trial. See, e.g., United States v. Gonzalez-Aparicio, 648 F.3d 749,

757 (9th Cir. 2011) (“When the state of the law is unclear at the time of trial and

is then clarified by subsequent authority, the district court’s error is still not

considered plain. . . . Therefore, plain error ‘normally means error plain at the

time the district court made the alleged mistake.’”); United States v. Mouling,

557 F.3d 658, 664 (D.C. Cir.) (“We therefore hold that where, as here, the law

was unsettled at the time of trial but becomes settled by the time of appeal, the

general rule applies, and we assess error as of the time of trial.”), cert. denied,

130 S. Ct. 795 (2009).

In contrast, the First, Second, Sixth, and Eleventh Circuits hold that

Johnson applies whether the law was clear or unclear at the time of trial; the
No. 10-30571

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plainness of the error is always evaluated at the time of appellate review. See,

e.g., United States v. Crosgrove, 637 F.3d 646, 656-57 (6th Cir. 2011) (“However,

the requirement that the error be plain means ‘plain under current law.’ . . . For

plain error review, current law ‘is the law as it exists at the time of review.’”);

United States v. Gamez, 577 F.3d 394, 400 (2d Cir. 2009) (per curiam) (“A court

of appeals cannot correct an error pursuantto Rule 52(b) unless the error is clear

under current law. . . . Whether an error is ‘plain’ is determined by reference to

the law as of the time of appeal.” (internal quotation marks and citations

omitted)); United States v. Ziskind, 491 F.3d 10, 14 (1st Cir. 2007) (citing

Johnson for the proposition “that error is plain if the law is clear at the time of

direct appellate review, even though governing law was unclear attime oftrial”);

United States v. Underwood, 446 F.3d 1340, 1343 (11th Cir. 2006) (noting that

“even though the error was not plain at the time of sentencing, the subsequent

issuance of [a Supreme Court opinion] establishes that the error is plain at the

time of appellate consideration”).

We have not previously squarely addressed this issue where the timing of

when the “plainness” was judged was critical; however, our decisions are in

something of a disarray on this point. Several opinions, including the panel’s

opinion in this case, have held that the court considers the law at the time of

trial when determining whether an error is plain. See, e.g., United States v.

Henderson, 646 F.3d 223, 225 (5th Cir. 2011) (“[A]n error is plain only if it was

‘clear under current law at the time of trial.’” (quoting United States v. Jackson,

549 F.3d 963, 977 (5th Cir. 2008))); United States v. Garcia-Rodriguez, 415 F.3d

452, 455 (5th Cir. 2005) (“‘Plain’ is synonymous with ‘clear’ or ‘obvious,’ and at

a minimum, contemplates an error which was clear under current law at the

time of trial.”); United States v. Hull, 160 F.3d 265, 272 (5th Cir. 1998) (same).

Other opinions have concluded that Johnsonestablished thatthe court considers

the error at the time of appeal in deciding whether it is plain. See, e.g., United
No. 10-30571

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States v. Bishop, 603 F.3d 279, 281 (5th Cir.) (“We determine whether an alleged

error is plain by reference to existing law at the time of appeal.”), cert. denied,

131 S. Ct. 272 (2010); United States v. Gonzalez-Terrazas, 529 F.3d 293, 298 (5th

Cir. 2008) (“[T]he error need only be plain at the time of appellate consideration.”). We have not squarely addressed the precise question of whether

Johnson applies to the plain error analysis when the law was unclear atthe time

of trial and later becomes clear.

Our earliest discussion of this issue applying the Olano formulation of

plain error (decided prior to Johnson), judged the error at the time of appeal.

United States v. Knowles, 29 F.3d 947 (5th Cir. 1994). Where “two previous

holdings or lines of precedent conflict, the earlier opinion controls and is the

binding precedent in this circuit.” United States v. Wheeler, 322 F.3d 823, 828

n.1 (5th Cir. 2003) (internal quotation marks omitted). The panel opinion fails

to address Knowles in light of this precedent or reconcile our conflicting

precedents. For this reason, I recommend en banc consideration of this issue to

provide clarity on when plain error should be evaluated.

If our court were to follow the First, Second, Sixth, and Eleventh Circuits

and hold that plain error is always evaluated at the time of appeal, the district

court’s opinion would be reversed. The Supreme Court’s decision in Tapia

establishes that at the time of appeal, the district court’s error was plain. I

submit that Henderson easily meets the other requirements for plain error

because the district court, in granting a longer sentence, considered a factor the

Supreme Court has stated is an impermissible consideration.

Whichever way this court ultimately would come out on the “timing issue,”

it is worthy of the full court’s attention. We deal almost daily with issues of

plain error, and it is certainly not an unusual occurrence for a claim of plain

error to be made where the law was unclear at the time of the trial court’s

decision but is clear by the time of appeal. See, e.g., United States v. Newson,
No. 10-30571

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No. 11-10073, 2011 U.S. App. LEXIS 23181, at *2-3 (5th Cir. Nov. 17, 2011) (per

curiam) (unpublished) (noting that “the lack of a published opinion from this

court at the time of the district court proceedings rendered any [error] neither

clear nor obvious legal error”); United States v. Gloria, 2011 U.S. App. LEXIS

18589, at *4 (5th Cir. Sept. 7, 2011) (per curiam) (unpublished) (addressing a

different sentencing issue and judging plain error at the time of sentencing);

United States v. Graves, 409 F. App’x 780, 781 (5th Cir. 2011) (per curiam)

(unpublished) (addressing such a situation on habeas review and noting that “it

is enough thatthe error be plain atthe time of appellate consideration”(internal

quotation marks omitted)). How we address such a situation should be uniform.

Without doubt, Henderson was sentenced based upon an impermissible

consideration. Given the discord within our own circuit (and that among our

sister circuits), I submitthatthe full court should resolve this question. Because

it fails to do so here, I respectfully dissent.