Federal Sentencing News: The United States Circuit Court for the Third Circuit Rules that New Jersey Federal Criminal Lawyers Must Make All Procedural Objections to a Sentence at the Time of Sentencing or the Objection Is Waived

New Jersey Criminal Lawyers Schwartz Posnock

In an en banc precedential ruling, the United States Court of Appeal for the Third Circuit held that procedural error at sentencing is preserved only if a party objects after sentence is imposed or at the time that the procedural error becomes evident. This ruling is binding on federal criminal lawyers who practice in New Jersey.  The Circuit Court, in United States v. Flores-Mejia, adopted this new rule for several reasons:

(1)  Unlike a substantive objection to a sentence, a procedural defect in a sentence may not occur until the sentence is pronounced;

(2)  Objecting to a procedural error after sentence is pronounced will promote judicial efficiency because it allows a sentencing court to correct or avoid a mistake;

(3)  Requiring that a procedural objection be made at the time sentence is pronounced prevents “sandbagging” of the court by a defendant who raises an error on appeal while remaining silent at the sentencing hearing.

The history of the case is as follows: In his sentencing memorandum, Flores-Mejia raised several grounds for downward departures and variances. At issue in the appeal was his argument that he cooperated with the government by providing information regarding a homicide and a prostitution ring. At the sentencing hearing, the United States District Court judge heard argument on a number of Flores-Mejia’s grounds for mitigation and denied them. The parties then addressed Flores-Mejia’s argument that his cooperation warranted a reduced sentence. Both the government and defense counsel made proffers on the issue. The government argued that the homicide in question had already been solved and that the information about the prostitution ring did not involve involuntary sex trafficking or children and so it fell outside the ordinary purview of federal law enforcement. For those reasons, the government asserted that the cooperation did not warrant a variance. Following this colloquy, the District Court stated: “Okay, thanks.  Anything else?” There was no reply from either party; instead each side summed up its position on sentencing. On completion of the summations, the District Court proceeded to sentence Flores-Mejia to 78 months in prison. Defense counsel did not at that time object to the court’s failure to rule on the request for variance based on the alleged cooperation, nor did she point out the District Court’s failure to explicitly address or give further consideration to that argument.

On appeal, Flores-Mejia contended that the District Court committed procedural error in failing to sufficiently consider his argument that his cooperation warranted a lower sentence.  A panel of the Third Circuit Court of Appeals agreed.  Upon the government’s request, the Third Circuit granted en banc review. The Third Circuit held:

. . . we now hold that a defendant must raise any procedural objection to his sentence at the time the procedural error is made, i.e., when sentence is imposed without the court having given meaningful review to the objection. Until sentence is imposed, the error has not been committed. At the time that sentence is imposed, if the objection is made, the court has the opportunity to rectify any error by giving meaningful review to the argument.

Based upon the “new rule” adopted by the en banc Court, Flores-Mejia did not preserve the procedural error issue for appeal.  However, the Court decided not to apply the rule retroactively to Flores-Mejia.  Using an abuse of discretion standard, the Court concluded that the District Court record did not reflect meaningful consideration of Flores-Mejia’s cooperation argument, and remanded the matter for resentencing.

For individuals who are facing prosecution or sentencing in the United States District Courts of New Jersey, or appealing their matters before the United States Court of Appeals for the Third Circuit, it is critical to have an experienced federal criminal defense attorney represent you. The experienced federal criminal defense lawyers of Schwartz & Posnock appear in the United States District Courts in Newark, Trenton and Camden, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at info@schwartzposnock.com to schedule an appointment.

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