(Slip Opinion) OCTOBER TERM, 2017 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

ROSALES-MIRELES v. UNITED STATES 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT 

No. 16–9493. Argued February 21, 2018—Decided June 18, 2018 

Each year, district courts sentence thousands of individuals to imprisonment for violations of federal law. To help ensure certainty and 

fairness in those sentences, federal district courts are required to

consider the advisory United States Sentencing Guidelines. Prior to 

sentencing, the United States Probation Office prepares a presentence investigation report to help the court determine the applicable

Guidelines range. Ultimately, the district court is responsible for ensuring the Guidelines range it considers is correct. At times, however, an error in the calculation 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 established 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. ___, ___. 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.” ’ ” Id., at ___. This last consideration is often called 

Olano’s fourth prong. The issue here is when a Guidelines error that 

satisfies Olano’s first 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 Probation Office’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 ob-
 

 

2 ROSALES-MIRELES v. UNITED STATES 

Syllabus 

ject 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 first time. The Fifth Circuit found that the 

Guidelines error was plain and that it affected Rosales-Mireles’ substantial rights because there was a “reasonable probability that he

would have been subject to a different sentence but for the error.” 

The Fifth Circuit nevertheless declined to remand the case for resentencing, concluding that Rosales-Mireles had not established that the

error would seriously affect the fairness, integrity, 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. 6–15.

(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 confines the extent of the court of appeals’ discretion. It is not reflected 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 unintentional 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 “powerful 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. 6–8.

(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 ___. That 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 Guidelines miscalculations ultimately result from judicial error, as the district court is charged in 

the first instance with ensuring the Guidelines range it considers is 
Cite as: 585 U. S. ____ (2018) 3 

Syllabus 

correct. Moreover, remands for resentencing are relatively inexpensive proceedings compared to remands 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 uncorrected 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 discretion at the fourth 

prong of Olano inherently requires “a case-specific 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 absent correction. But there are no such factors in this case. Pp. 8–11.

(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 statements that discretion under Rule 52(b) should be exercised “sparingly,” Jones v. United States, 527 U. S. 373, 389, and reserved for “exceptional circumstances,” Meyer v. Kenmore Granville 

Hotel Co., 297 U. S. 160. In contrast 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 exceptional 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 dissent also assert 

that Rosales-Mireles’ sentence is presumptively reasonable 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 significant procedural 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 “sufficient, but not greater than necessary,” 18 U. S. C. §3553(a), the resulting sentence 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 proceedings. 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 con-
 

 

 

4 ROSALES-MIRELES v. UNITED STATES 

Syllabus 

cern fails to account for the realities at play in sentencing proceedings, where it is highly speculative that a defendant would benefit

from a strategy of deliberately forgoing an objection in the district 

court, with hopes of arguing for reversal under plain-error review later. Pp. 12–14. 

850 F. 3d 246, reversed and remanded. 

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and KENNEDY, GINSBURG, BREYER, KAGAN, and GORSUCH, JJ., 

joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., 

joined. 
 

 

_________________ 

_________________ 

Cite as: 585 U. S. ____ (2018) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 16–9493 

FLORENCIO ROSALES-MIRELES, PETITIONER v.
 

UNITED STATES
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT
 

[June 18, 2018] 

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 first time on appeal. This case concerns the bounds of 

that discretion, 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. 

I 

A 

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 sentence that is “sufficient, but not greater than necessary,” 18 U. S. C. §3553(a), to achieve the overarching 
 

 

2 ROSALES-MIRELES v. UNITED STATES 

Opinion of the Court 

sentencing purposes of “retribution, deterrence, incapacitation, and rehabilitation.” 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

throughout 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 original). 

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 appellate review.” 569 U. S., 

at 541. 

Of course, to consult the applicable Guidelines range, a

district court must first determine what that range is. 

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

United States, 578 U. S. ___, ___ (2016) (slip op., at 4). 

The United States Probation Office, operating as an arm

of the district court, first creates a presentence investigation report, “which includes a calculation of the advisory

Guidelines range it considers to be applicable.” Id., at ___ 

(slip op., at 3); see Fed. Rules Crim. Proc. 32(c)(1)(A),

(d)(1); United States Sentencing Commission, Guidelines 

Manual §1B1.1(a) (Nov. 2016) (USSG). That calculation 

derives from an assessment of the “offense characteristics, 

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). Specifically, an offense level is calculated by identifying a base

level for the offense of conviction and adjusting that level 
 

Cite as: 585 U. S. ____ (2018) 3 

Opinion of the Court 

to account for circumstances specific to the defendant’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 

category. §§1B1.1(a)(6), 4A1.1. Together, the offense level

and the criminal history category identify the applicable 

Guidelines range. §1B1.1(a)(7). 

B 

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 

constitutes 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 result in a defendant raising the error for 

the first time on appeal. Molina-Martinez, 578 U. S., at 

___ (slip op., at 4). Those defendants are not entirely 

without recourse. 

Federal Rule of Criminal Procedure 52(b) provides that 

“[a] plain error that affects substantial rights may be

considered 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 before 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 
 

4 ROSALES-MIRELES v. UNITED STATES 

Opinion of the Court 

U. S., at ___ (slip op., at 4) (citations omitted). To satisfy 

this third condition, the defendant ordinarily must “‘show 

a reasonable probability that, but for the error,’ the outcome of the proceeding would have been different.” Ibid. 

(quoting United States v. Dominguez Benitez, 542 U. S. 74, 

76, 82 (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 proceedings.” Molina-Martinez, 578 U. S., at ___ (slip op., at 4–5) 

(internal quotation marks omitted). It is this last consideration, often called Olano’s fourth prong, that we are

asked to clarify and apply in this case. 

C 

Petitioner Florencio Rosales-Mireles pleaded guilty to

illegal reentry in violation of 8 U. S. C. §§1326(a), (b)(2). 

The Probation Office in its presentence investigation 

report mistakenly counted a 2009 state conviction of misdemeanor assault twice. This double counting resulted in

a criminal history score of 13, which placed RosalesMireles 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 

imprisonment, one month above the lower end of the 

Guidelines range that everyone thought applied. 

On appeal, Rosales-Mireles argued for the first time 
 

 

Cite as: 585 U. S. ____ (2018) 5 

Opinion of the Court 

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). 

 Applying the Olano framework, the Fifth Circuit concluded that Rosales-Mireles had established that the 

Guidelines miscalculation constituted an error that was 

plain, satisfying Olano’s first two conditions. It also held 

that the error affected Rosales-Mireles’ substantial rights,

thus satisfying 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 “erroneously included an extra conviction.” 

Ibid. 

The Fifth Circuit nevertheless declined to exercise its 

discretion to vacate and remand the case for resentencing 

because 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 seriously call into question the competence or

integrity of the district judge.” Id., at 250 (internal quotation marks and alterations omitted). Because RosalesMireles’ 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 
 

6 ROSALES-MIRELES v. UNITED STATES 

Opinion of the Court 

is out of step with the practice of other Circuits.1 We 

granted certiorari to resolve that conflict, 582 U. S. ___ 

(2017), and now reverse. 

II
 

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 that affects substantial rights “if the error ‘seriously affects the fairness, 

integrity 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 ___–___ (slip op., at 4–5). The Court in Olano 

rejected a narrower rule that would have called for relief 

only “‘in those circumstances in which a miscarriage of 

justice would otherwise result,’” that is to say, where a

defendant is actually innocent. 507 U. S., at 736 (quoting 

United States v. Young, 470 U. S. 1, 15 (1985)). By focusing instead on principles of fairness, 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 rejected in Olano, the Fifth Circuit’s standard is unduly 

restrictive. 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 

—————— 

1Compare 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. SabillonUmana, 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 525, 527, 529–530 (CA7 2008). 
 

Cite as: 585 U. S. ____ (2018) 7 

Opinion of the Court 

marks omitted), would demand an exercise of discretion to

correct the error. Limiting relief only to those circumstances, however, too narrowly confines 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, 847, n. 8 (1998) (“[I]n a due process challenge to

executive action, the threshold question is whether the

behavior of the governmental officer 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 satisfied where the conduct 

was “intended to injure in some way unjustifiable by any 

government interest,” or in some circumstances if it resulted from deliberate indifference. Id., at 849–850. 

That standard is not reflected 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 insufficient

indictment); Brasfield v. United States, 272 U. S. 448, 

449–450 (1926) (reversing judgment for plain error where 

the trial judge improperly 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 insufficient evidence to sustain conviction). The 

Court also “routinely remands” cases involving inadvertent or unintentional errors, including 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. ___, ___ (2017) (GORSUCH, J., 

concurring) (slip op., at 2). 
 

 

8 ROSALES-MIRELES v. UNITED STATES 

Opinion of the Court 

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 

“powerful 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. Similarly, the Fifth Circuit’s emphasis on the “competence or integrity of the district judge” narrows Olano’s 

instruction that an error should be corrected if it seriously 

affects “judicial proceedings.” In articulating such a high 

standard, the Fifth Circuit substantially changed Olano’s 

fourth prong. 

B 

The effect of the Fifth Circuit’s heightened standard is 

especially pronounced in a case like this one. A plain

Guidelines error that affects a defendant’s substantial 

rights is precisely 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 sufficient to show a reasonable probability of a different outcome absent the error.” 578 U. S., 

at ___ (slip op., at 9). In other words, an error resulting in 

a higher range than the Guidelines provide usually establishes a reasonable probability that a defendant will serve

a prison sentence that is more than “necessary” to fulfill

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 
Cite as: 585 U. S. ____ (2018) 9 

Opinion of the Court 

(2010) (KENNEDY, J., dissenting). “[A]ny amount of actual 

jail time” is significant, Glover v. United States, 531 U. S. 

198, 203 (2001), and “ha[s] exceptionally severe consequences for the incarcerated individual [and] for society 

which bears the direct and indirect costs of incarceration,” 

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 

system 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 criticized for leading to a harsher sentence,” Guidelines miscalculations 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 imposing Rosales-Mireles’ sentence was based on a mistake made in the presentence 

investigation report by the Probation Office, which works

on behalf of the District Court. Moreover, “a remand for 

resentencing, while not costless, does not invoke the same 

difficulties as a remand for retrial does.” MolinaMartinez, 578 U. S., at ___ (slip op., at 15) (internal quotation marks omitted). “A resentencing is a brief event,

normally taking less than a day and requiring the attendance of only the defendant, 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 
 

10 ROSALES-MIRELES v. UNITED STATES 

Opinion of the Court 

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 

assist 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 reflect the nature of the

offense and criminal history of the defendant, because the 

United States Sentencing Commission relies on data 

developed during sentencing proceedings, including information in the presentence investigation report, to determine whether revisions to the Guidelines are necessary. 

See id., at 350. When sentences 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

system relies on procedures that are “neutral, accurate,

consistent, trustworthy, and fair,” and that “provide opportunities for error correction.” Bowers & Robinson, 

Perceptions of Fairness and Justice: The Shared Aims and

Occasional Conflicts of Legitimacy and Moral Credibility, 

47 Wake Forest 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 

—————— 

2Similarly, the work of the Federal Bureau of Prisons is hindered by 

uncorrected Guidelines errors, because the Bureau relies, in part, on 

aspects 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 Classification, ch. 2, p. 1, ch. 4, p. 8, ch. 6, p. 5

(Sept. 12, 2006). 
 

 

 

Cite as: 585 U. S. ____ (2018) 11 

Opinion of the Court 

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 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 Office, a mistake that can be remedied through a relatively inexpensive resentencing

proceeding.

Of course, any exercise of discretion at the fourth prong 

of Olano inherently requires “a case-specific and factintensive” 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 

—————— 

3The 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 7 (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. 4As the dissent points out, post, at 8–9, a defendant bears the “burden to persuade the court that the error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” United 

States v. Vonn, 535 U. S. 55, 63 (2002) (internal quotation marks 

omitted). In the ordinary case, proof of a plain Guidelines error that 

affects the defendant’s substantial rights is sufficient to meet that

burden. 
 

12 ROSALES-MIRELES v. UNITED STATES 

Opinion of the Court 

III 

The United States and the dissent agree with RosalesMireles that the Fifth Circuit’s formulation of the standard for the exercise of discretion under Rule 52(b) “is an 

inaccurate description” of Olano’s fourth prong. Brief for 

United States 34; post, at 1, 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 unpersuaded, 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 

discretion under Rule 52(b) should be exercised “sparingly,” 

Jones v. United States, 527 U. S. 373, 389 (1999), and 

reserved 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 proceedings, and thus

does not demand such a high degree of caution.

In any event, the circumstances surrounding RosalesMireles’ case are exceptional within the meaning of the

Court’s precedent on plain-error review, 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 fact that, as a 

result of the Court’s holding, most defendants in Rosales-
 

 

 

Cite as: 585 U. S. ____ (2018) 13 

Opinion of the Court 

Mireles’ situation will be eligible for relief under Rule

52(b) does not justify a decision that ignores the harmful 

effects of allowing the error to persist. 

Second, the United States and the dissent assert that, 

because 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 10. 

A substantive reasonableness determination, however, is 

an entirely separate inquiry from whether an error warrants correction under plain-error review. 

Before a court of appeals can consider the substantive

reasonableness of a sentence, “[i]t must first ensure that 

the district court committed no significant procedural 

error, such as failing to calculate (or improperly calculating) the Guidelines range.” Gall, 552 U. S., at 51. This 

makes eminent sense, for the district court is charged in

the first instance with determining whether, taking all

sentencing factors into consideration, including the correct 

Guidelines range, a sentence is “sufficient, 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 Guidelines range, the resulting sentence no

longer bears the reliability 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 reliability 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 influences 

perceptions of outcomes). The mere fact that RosalesMireles’ sentence falls within the corrected Guidelines 

range does not preserve the fairness, integrity, or public 
 

14 ROSALES-MIRELES v. UNITED STATES 

Opinion of the Court 

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 5; 

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. ___, ___ (2018) (slip op., at 9) (quoting Peugh, 569 

U. S., at 542). It is hard to imagine that defense counsel 

would “deliberately forgo objection now” to 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) (emphasis 

in original). Even setting aside the conflict such a strategy would create with defense counsel’s ethical obligations

to represent her client vigorously and her duty of candor

toward the court, any benefit 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 district 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. 

IV 

For the foregoing reasons, we conclude that the Fifth 

—————— 

5The dissent’s discussion of Rosales-Mireles’ criminal history, post, at 

9–10, 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 RosalesMireles’ sentencing proceedings, which may have resulted in a longer

sentence than is justified in light of that history, seriously affects the

fairness, integrity, or public reputation of judicial proceedings. 
Cite as: 585 U. S. ____ (2018) 15 

Opinion of the Court 

Circuit 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 affect 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 proceedings consistent with this 

opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 585 U. S. ____ (2018) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 16–9493 

FLORENCIO ROSALES-MIRELES, PETITIONER v.
 

UNITED STATES
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT
 

[June 18, 2018] 

JUSTICE THOMAS, with whom JUSTICE ALITO joins,

dissenting. 

The Court holds that, “in the ordinary case,” a miscalculation of the advisory Sentencing Guidelines range will

“seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Ante, at 1. In other words, a 

defendant who does not alert the district court to a plain

miscalculation of his Guidelines range—and is not happy 

with the sentence he receives—can raise the Guidelines 

error for the first time on appeal and ordinarily get another

shot at a more favorable sentence. The Court’s decision 

goes far beyond what was necessary to answer the question presented.1 And it contravenes long-established 

principles of plain-error review. I respectfully dissent. 

—————— 

1We 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. ___ (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 5–7. 
 

 

 

 

 

 

2 ROSALES-MIRELES v. UNITED STATES 

THOMAS, J., dissenting 

I 

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.” (Emphasis added.) The “point of the plain-error 

rule” is to “requir[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 ‘ “sandbagging”’ the court—

remaining silent about his objection and belatedly raising 

the error only if the case does not conclude in his favor.” 

Puckett v. United States, 556 U. S. 129, 134 (2009). Satisfying the plain-error standard “is difficult, ‘as it should

be.’” Id., at 135. 

This Court has held that Rule 52(b) is satisfied 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, integrity or public reputation of judicial proceedings.”’” Henderson 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 casespecific and fact-intensive basis.” Puckett, supra, at 142. 

And it cannot be satisfied 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 
 

 

Cite as: 585 U. S. ____ (2018) 3 

THOMAS, J., dissenting 

provide relief under plain-error review only in “exceptional 

circumstances”). 

II 

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

Ante, at 15. 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-specific and fact-intensive basis.” Puckett, supra, 

at 142. By holding that a Guidelines error “ordinarily will

satisfy [the] fourth prong” absent “countervailing factors,” 

ante, at 11, 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 presumption certainly must be difficult to

rebut. The Court matter-of-factly asserts, in a single 

sentence with no analysis, that “there are no [countervailing] factors” in this case that counsel in favor of affirmance. Ante, at 11. It does so without even discussing the 

particular details of the defendant’s crime, what happened

at his sentencing, the reasoning that the District Court 

employed, the difference between the 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-specific” nor “fact-intensive.” 

Puckett, supra, at 142. The Court candidly admits as 

much. See ante, at 11, 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 

Guidelines cases. Olano, supra, at 737. The Court expressly states that Guidelines errors will satisfy the fourth 

prong in “the ordinary case.” Ante, at 15. But this Court 
 

 

4 ROSALES-MIRELES v. UNITED STATES 

THOMAS, J., dissenting 

has repeatedly held that the fourth prong limits courts’ 

discretion 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 circumstances,” Atkinson, supra, at 160. 

Today’s decision turns that principle on its head by making relief available “in the ordinary case.” Ante, at 1. 

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 12. 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. ___, ___ (2016) (slip op., at 15). 

See ante, at 9. That decision rejected the Fifth Circuit’s

categorical rule requiring 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 ___–___ (slip op., at 8–9). In dicta it suggested

that, “in the ordinary case,” the Guidelines error would be

enough to satisfy the third prong’s requirement that the 

error affect substantial rights. Id., at ___ (slip op., at 15). 

And it rebuffed the Government’s pragmatic “concern over 

the judicial resources needed” if Guidelines errors usually

satisfy the third prong of plain-error review. Id., at ___ 

(slip op., at 14). But Molina-Martinez did not discuss the 

fourth prong of plain-error review, which is at issue here 

and is an independent requirement, see Olano, supra, at 

737. Nor did it relax the plain-error standard whenever

reversal would not require “additional jury proceedings.” 

Ante, at 12. 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 
 

Cite as: 585 U. S. ____ (2018) 5 

THOMAS, J., dissenting 

policies that underpin Rule 52(b).” Dominguez Benitez, 

542 U. S., at 82. As explained, the plain-error standard 

encourages defendants 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 creates 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 satisfactory,” 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 sentencing 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 ultimate 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. 

III 

Even if it were appropriate to create rebuttable presumptions 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 reputation of judicial proceedings.” Ante, at 1. 

Whether a district court’s failure to correctly calculate the 

advisory Guidelines range satisfies the fourth prong of 
 

 

6 ROSALES-MIRELES v. UNITED STATES 

THOMAS, J., dissenting 

plain-error review will depend on the circumstances of

each case. And the circumstances of this case prove the 

folly of the Court’s presumption. 

A 

The Court asserts that plain Guidelines errors must

ordinarily be corrected to ensure that defendants do not 

“linger longer in federal prison than the law demands.” 

Ante, at 10 (internal quotation marks omitted). But the 

Guidelines are not “law.” They neither “define criminal 

offenses” nor “fix the permissible sentences for criminal 

offenses.” Beckles v. United States, 580 U. S. ___, ___ 

(2017) (slip op., at 5) (emphasis deleted). Instead, they are

purely “advisory” and “merely guide the district courts’ 

discretion.” Id., at ___ (slip op., at 8). They provide advice 

about what sentencing range the Sentencing Commission

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

Guidelines 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 substantively reasonable and within the 

applicable statutory range. See Jones v. United States, 

577 U. S. ___, ___–___ (2015) (Scalia, J., dissenting from 

denial of certiorari) (slip op., at 1–2); Kimbrough v. United 

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

concurring).

The Court also justifies its presumption by repeatedly 

stressing the importance of procedural rules to the public’s 
 

 

 

Cite as: 585 U. S. ____ (2018) 7 

THOMAS, J., dissenting 

perception of judicial proceedings. See ante, at 10 (“[T]he

public legitimacy of our justice system relies on procedures”); ante, at 13 (“[U]njust procedures may well undermine public perception of [sentencing] proceedings”). It 

even cites a hodgepodge of psychological studies on procedural justice. Ante, at 13 (citing Hollander-Blumoff, The

Psychology of Procedural Justice in the Federal Courts, 63

Hastings L. J. 127, 132–134 (2011) (Hollander-Blumoff)). 

Putting aside the obvious problems with this research,2 

the Court contradicts our precedents by suggesting that

adhering 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 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 

—————— 

2The 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,

accept, and feel satisfied 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 general importance of “procedural justice” in court,

based on marginally relevant 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 complicated question of “procedural justice” at 

issue here: whether it is presumptively unfair to penalize a defendant 

who fails to object to an error until appeal. The contemporaneousobjection rule, after all, is also a procedural rule that affects the fairness, integrity, and reputation of judicial proceedings. 
 

8 ROSALES-MIRELES v. UNITED STATES 

THOMAS, J., dissenting 

satisfied because “the evidence supporting materiality was

‘overwhelming.’” Id., at 470. Reversal based on errors 

that have no actual “‘effect on the judgment,’” this Court 

explained, “‘encourages 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. 624 (2002), 

the indictment failed to allege a fact that increased the

statutory maximum, but the evidence of that fact “was

‘overwhelming’ and ‘essentially 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 automatically satisfies the

plain-error standard, “‘no matter how unlikely’” 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 significantly

impugn the ‘fairness,’ ‘integrity,’ or ‘public reputation’ of

the judicial process.” Id., at 265–266. Thus, the Court is 

mistaken when it asserts that, because Guidelines errors 

are procedural mistakes, they are particularly likely to

implicate the fourth prong of plain error. 

B 

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” preclude defendants from satisfying the fourth 

prong. Ante, at 11. Because the Court does not question

our existing plain-error precedents, see ante, at 12, the 

burden presumably remains on defendants to establish 
 

Cite as: 585 U. S. ____ (2018) 9 

THOMAS, J., dissenting 

that there are no such countervailing factors, and to persuade the appellate court that any countervailing factor 

identified by the Government is insufficient. See Vonn, 

535 U. S., at 63 (“[A] defendant 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 burden 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, RosalesMireles entered the United States illegally in 1997. In 

2002, he was convicted of assault for throwing his girlfriend to the floor 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 attempted to

stab one man and did stab another—once in the shoulder 

and twice in the chest. In January 2010, Rosales-Morales 

was removed to Mexico. But that same month he reentered the United States illegally. In 2015, he was convicted 

in Texas state court of assaulting his wife and 14-year-old 

son. During the altercation, Rosales-Mireles grabbed his 

wife by the hair and punched her in the face repeatedly. 

—————— 

3These 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

arrested in 2009, he had two outstanding warrants for other assaults of 

his wife. 
 

 

10 ROSALES-MIRELES v. UNITED STATES 

THOMAS, J., dissenting 

Most recently, Rosales-Mireles pleaded guilty to illegal 

reentry. 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 4. 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 Security 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 Guidelines ranges but also in the bottom half of both possible 

ranges. See ante, at 4. 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 

“‘seriously affect the fairness, integrity, or public reputation of judicial proceedings.’” Young, 470 U. S., at 15. A 

sentence that is substantively reasonable is hardly the 

kind of “particularly egregious erro[r]” that warrants 

plain-error relief. Frady, 456 U. S., at 163. 

* * * 

Rule 52(b) strikes a “careful balance . . . between judicial

efficiency 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.