United States v. Carthorne is one of my favorite recent opinions. It turns on whether the standard for showing plain error is the same as the standard for proving ineffective assistance of counsel. That’s a perfectly nerdly and compelling question in its own right, but it’s not why I like the opinion. Carthorne is a winner for me for two reasons. First, it shows that brilliant lawyering on appeal can (sometimes) redeem dreadful lawyering in the trial court. And second, it reinforces one of our favorite mantras around here: the standard of review decides cases.
Here’s the story: Our hero, Jolon Carthorne, pleaded guilty to illegally possessing drugs and a firearm. His probation officer recommended that he be designated a “career offender” under the Sentencing Guidelines based on two prior convictions. One of those convictions was for assault and battery of a police officer under Virginia law. The probation officer concluded that this qualified as a crime of violence under the Sentencing Guidelines.
Carthone’s trial lawyer did not object to the career-offender designation. The district court sentenced Carthorne to 300 months’ imprisonment. Without the career-offender designation, his Sentencing Guidelines range would have been between 181 and 211 months’ imprisonment.
In other words, the career-offender designation cost Carthorne an additional seven-to-ten-years’ imprisonment.
Carthorne appealed, arguing that assault and batter of a police officer was not, in fact, a crime of violence under the Sentencing Guidelines. The Fourth Circuit reviewed his claim for plain error because Carthorne hadn’t raised the argument below. It held that Carthorne was right: Assault and battery of a police officer doesn’t qualify as a crime of violence under the Sentencing Guidelines. But it also held that the district court did not plainly err because existing precedent didn’t compel that conclusion. At the time of the district court’s opinion, the circuits were actually split on the question. So the Fourth Circuit affirmed the judgment.
That’s the force–and the subtlety–of plain-error review: The district court was wrong, but it wasn’t plainly wrong.
Carthorne then asked the district court to vacate his sentence under 28 U.S.C. § 2255 for ineffective assistance of counsel because his trial lawyer hadn’t objected to the career-offender designation. The magistrate judge concluded that Carthorne’s lawyer was sufficiently effective “essentially for the same reasons that the Fourth Circuit found no plain (i.e., obvious) error on direct appeal.” The district court adopted the magistrate judge’s recommendation and denied the motion.
Carthorne appealed, arguing that the district court had confused two distinct standards of review. The Fourth Circuit agreed, concluding that “the plain error and ineffective assistance of counsel standards do not necessarily generate identical outcomes with respect to the same alleged error.”
A few points here. First, the Fourth Circuit gives us a nice treatment of plain-error review:
If counsel fails to raise a contemporaneous objection to a potential issue or error, the authority of an appellate court to remedy that problem is “strictly circumscribed.” Puckett, 556 U.S. at 134. A litigant failing to object to an error generally forfeits his claim to relief on account of that error. Id. at 134–35. Federal Rule of Criminal Procedure 52(b) recognizes only a limited exception to this rule of forfeiture, allowing appellate courts to review “a plain error that affects substantial rights.” See also Puckett, 556 U.S. at 135; United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004) (noting plain error relief is “difficult to get, as it should be”). The plain error standard therefore reflects the view that the primary responsibility for protecting a defendant’s interests at trial lies with his attorney, not with the court.
An error can be “plain” only on the basis of settled law. See Carthorne I, 726 F.3d at 516 & n.14 (noting that error is plain “if the settled law of the Supreme Court or this circuit establishes that an error has occurred” or if other circuits are unanimous on the point (citation omitted)). When neither the Supreme Court nor this Court has addressed a legal issue directly and a circuit split exists, “a district court does not commit plain error by following the reasoning of another circuit.” United States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012); Carthorne I, 726 F.3d at 516–17 (holding that the absence of binding precedent in conjunction with disagreement among circuits prevented us from finding plain error). Moreover, the determination whether an error is plain is made at the time of review by an appellate court, not at the time that the error is committed. Henderson v. United States, 568 U.S. 266, 279 (2013).
Second, the court’s refusal to hyphenate phrasal adjectives would never fly on #appellatetwitter. Never.
Third, this case is really making me question my Rule Against Acronyms. Lord, am I getting tired of typing “ineffective assistance of counsel” and “assault and battery of a police officer.”
But I digress.
The Carthone court contrasted plain-error review with a claim for ineffective assistance of counsel, which requires a showing that counsel’s performance fell below an objective standard of reasonableness. While both standards require a showing of prejudice, their specific inquiries diverge. Among other things, plain-error review requires settled precedent before a defendant is granted relief, while the ineffective-assistance standard may demand that a lawyer raise material issues even without decisive precedent. The inquiries also differ in their chronological focus: Ineffective assistance is judged in light of the time of the allegedly deficient performance, while plain error applies authority existing at the time of appellate review.
After distinguishing the two standards, the Fourth Circuit concluded that Carthorne’s trial counsel was indeed ineffective. Eliding the gory details, it held that “counsel’s failure to demonstrate a grasp of the relevant legal standards, to conduct basic legal research relating to those standards, and to object to the sentencing enhancement (even though there was a strong basis for objection), taken collectively, constituted deficient performance.” It vacated the district court’s judgment and remanded for resentencing. That is a fantastic result.
Fun footnote: Carthone’s lawyer on appeal was one Katherine Mims Crocker. Longtime readers will wonder: Might this be the person who gave Justice Mims his famous nickname? Further research is needed. Ms. Crocker had help on brief from Ben Hatch, pipeline defender and gentleman of Harvard. Click on the links to their bios sometime when you want to feel bad about your life choices.