10th Circuit speaks (and speaks and speaks) on plain error!

As if the circuits did not give us enough Booker reading this weekend, I have just discovered that on Friday the 10th Circuit produced a book on Booker plain error through its (82-page!) en banc ruling in US v. Gonzalez-Huerta, No. 04-2045 (10th Cir. Apr. 8, 2005) (available here).  And just when we all thought all the circuits had settled into the three-way circuit split on plain error, especially with the DC Circuit in Coles jumping on the Crosby/Paladino band-wagon (detailed here), the 10th Circuit spices up the story with Gonzalez-Huerta by affirming the defendant’s guideline sentence due to the fourth prong, rather than the third prong, of the plain-error test.

It is impossible to neatly summarize Gonzalez-Huerta, in part because there are a total of six opinions: one for the court, three concurrences, one partial concurrence/partial dissent, and one dissent.  The opinion for the court in Gonzalez-Huerta does embrace the “defendant must prove prejudice” for the third prong of the plain-error standard.  But, as noted above, the court’s affirmance in Gonzalez-Huerta ultimately rests on the fourth prong of plain error because it concludes, based on the facts of the case before it, “that the District Court’s mandatory application of the Guidelines was not ‘particularly egregious’ or a ‘miscarriage of justice.'”

Because of all the opinions and their extensive analysis, Gonzalez-Huerta provides the most complete discussion of plain-error issues to date.  However, because of all the opinions and their extensive analysis, Gonzalez-Huerta is not a complete model of clarity.  Consider, for example, the first paragraph of Judge Ebel’s concurring opinion:

I agree with the majority’s decision to affirm Gonzalez-Huerta’s sentence under the fourth prong of the Olano plain-error test and therefore I join Sections I, IIA, IIB, IID, and III of the majority opinion.  However, I disagree with the majority’s analysis and conclusion reached under the third prong of the Olano plain-error analysis (Maj. op. sections IIC), and accordingly I do not join those sections of the majority opinion.  Regarding the prejudice-prong analysis, I believe that Judge Briscoe got it right, and accordingly, I join Section IV of her concurrence.  Regarding the fourth prong of the Olano plain-error analysis, as noted above, I join Section IIE of the majority opinion.  I join Part II of Judge Hartz’s concurrence.  Finally, I add this concurring opinion to offer some additional analysis applicable to the fourth-prong analysis.