Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-1175
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY LYNN CALVERLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(October 20, 1994)
Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM,
DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA,
DeMOSS, BENAVIDES, STEWART, and PARKER, Circuit Judges.
POLITZ, Chief Judge:
This appeal provides the occasion for our en banc court to
revisit and clarify the issue of plain error in criminal cases in
this circuit. Convicted on a guilty plea of possession of ethyl
ether with intent to manufacture amphetamine, Timothy Lynn
Calverley challenges his sentence. Three of the assigned errors
were not raised in the trial court and do not constitute plain
error. The fourth is without merit. We affirm.

Background
Calverley was arrested and indicted for possession of 2.5
gallons of ethyl ether with the intent to manufacture amphetamine.1
At his detention hearing he falsely testified that he had not
possessed the chemical and this testimony resulted in an additional
charge of perjury.2 Calverley subsequently pleaded guilty to both
charges and was sentenced to prison for 115 months.3 The trial
judge refused Calverley's request for a two-point reduction in the
offense level for acceptance of responsibility,4 and then sentenced
Calverley as a career offender.5
On appeal Calverley urges, for the first time, three
assignments of error. He maintains that the trial judge
erroneously sentenced him as a career offender and retroactively
applied two Guidelines sections in violation of the ex post facto
clause. He also challenges the court's denial of his request for
a two-point adjustment for acceptance of responsibility. A panel
of this court affirmed the trial court's sentence.6 We determined
to rehear the case en banc.7
1 21 U.S.C. § 841 (d)(1).
2 18 U.S.C. § 1623.
3 The sentences were imposed concurrently, 115 months on the
drug charge and 60 months on the perjury charge.
4 U.S.S.G. § 3E1.1.
5 U.S.S.G. § 4B1.1.
6 United States v. Calverley, 11 F.3d 505 (5th Cir. 1993).
7 Id. at 516.
2

Analysis
I.
One of the most familiar procedural rubrics in the
administration of justice is the rule that the failure of a
litigant to assert a right in the trial court likely will result in
its forfeiture.8 "This practice is founded upon considerations of
fairness to the court and to the parties and of the public interest
in bringing litigation to an end after fair opportunity has been
afforded to present all issues of law and fact."9 In exceptional
circumstances appellate courts may, in the interests of justice,
notice errors to which no objection has been made.10 Such
circumstances are sharply circumscribed by the plain error standard
requiring that unobjected-to errors be "plain" and "affect
substantial rights."11 Assuming that these requirements are met,
appellate courts possess the discretion to decline to correct
8 United States v. Atkinson, 297 U.S. 157, 159 (1936); see
also United States v. Olano, 113 S.Ct. 1770, 1776 (1993); Peretz v.
United States, 111 S.Ct. 2661, 2678 (1991)(Scalia, J., dissenting);
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 239 (1940).
9 Atkinson, 297 U.S. at 159; see also United States v. Young,
470 U.S. 1, 15 (1985); United States v. Frady, 456 U.S. 152, 163
(1982).
10 Fed. R. Crim. P. 52(b) explains that "[p]lain errors or
defects affecting substantial rights may be noticed although they
were not brought to the attention of the court." According to the
advisory committee notes, the rule restates the law as it existed
under United States v. Atkinson, 297 U.S. 157, 160 (1936) and
Wiborg v. United States, 163 U.S. 632, 658 (1896). See Advisory
Committee's Notes on Fed. R. Crim. P. 52, 18 U.S.C.App., p. 833.
See also Peretz, 111 S.Ct. at 2678; Socony-Vacuum, 310 U.S. at 239.
11 Olano, 113 S.Ct. at 1776; Peretz, 111 S.Ct. at 2678; Young,
470 U.S. at 16; Frady, 456 U.S. at 163.
3

errors which do not "seriously affect the fairness, integrity, or
public reputation of judicial proceedings."12
In U.S. v. Olano,13 the Supreme Court's most recent
pronouncement on plain error, the Court carefully articulated the
parameters of that standard. There first must be error. Error is
defined as a deviation from a legal rule in the absence of a valid
waiver.14 Waiver, the "'intentional relinquishment or abandonment
of a known right,'"15 is distinguishable from forfeiture, the
"failure to make the timely assertion of a right."16 Whereas the
former results in no error, the latter does not extinguish the
error. Thus, a forfeited legal error, or unobjected-to, unwaived
error, may be reviewable if it qualifies.17
The second requirement is that the error be plain. Plain is
synonymous with "clear" or "obvious," and, "[a]t a minimum,"
contemplates an error which was "clear under current law" at the
12 Atkinson, 297 U.S. at 160; see also Olano, 113 S.Ct. at
1776; Young, 470 U.S. at 15. The rule is to be used sparingly,
solely to prevent a miscarriage of justice. Frady, 456 U.S. at
163; see also Young, 470 U.S. at 15-16.
13 113 S.Ct. 1770 (1993).
14 Id. at 1777. The validity of a waiver depends on the right
at stake; that is, whether "the particular right is waivable;
whether the defendant must participate personally in the waiver;
whether certain procedures are required for waiver; and whether the
defendant's choice must be particularly informed or voluntary." Id.
15 Id. (quoting Johnson v. Zerbst, 304 U.S. 458 (1938)).
16 Olano, 113 S.Ct. at 1777.
17 Id.
4

time of trial.18 Although several Supreme Court cases have
stressed the importance of this element,19 on occasion our decisions
have abbreviated the plain error inquiry into whether the "issues
raised for the first time on appeal are purely legal questions and
failure to consider them would result in manifest injustice."20
Such a shorthand articulation of the plain error standard
improvidently suggests that all purely legal questions -- not just
those with clear answers under current law -- are reviewable under
the plain error umbrella. As observed by a panel of this court in
U.S. v. Rodriguez,21 which foreshadows today's decision, that is an
incorrect statement of the law. The Supreme Court has taught
18 Id. The Court declined to address the situation in which
"error was unclear at the time of trial but becomes clear on appeal
because the applicable law has been clarified." Id.
19 See e.g., Olano, Young, Frady; see also Namet v. United
States, 373 U.S. 179, 190 (1963)(labeling appellate consideration
of errors not "obviously prejudicial" as "extravagant protection");
accord Henderson v. Kibbe, 431 U.S. 145, 154 n. 12 (1977).
20 United States v. Bullard, 13 F.3d 154 (5th Cir. 1994);
Calverley, 11 F.3d 505; United States v. Gross, 979 F.2d 1048
(1992); United States v. All Star Indus., 962 F.2d 465 (5th Cir),
cert. denied, 113 S.Ct. 377 (1992); United States v. Kelly, 961
F.2d 524 (5th Cir. 1992); United States v. Sherbak, 950 F.2d 1095
(5th Cir. 1992); United States v. Hatchett, 923 F.2d 369 (5th Cir.
1991); United States v. Cockerham, 919 F.2d 286 (5th Cir. 1990);
United States v. Garcia-Pillado, 898 F.2d 36 (5th Cir. 1990).
21 15 F.3d 408 (5th Cir. 1994)(Barksdale, J., writing for the
court). Other Fifth Circuit cases adhering to the Olano standard
include: United States v. Bermea, 1994 WL 459951 (5th Cir. Aug.
25, 1994); United States v. Knowles, 1994 WL 416448 (5th Cir. Aug.
10, 1994); United States v. Miro, 1994 WL 411279 (5th Cir. Aug. 8,
1994); United States v. Stafford, 1994 WL 399934 (5th Cir. Aug. 3,
1994); United States v. Saenz-Forero, 27 F.3d 1016 (5th Cir. 1994);
United States v. Iwegbu, 6 F.3d 272 (5th Cir. 1993).
5

repeatedly that "plain" errors are errors which are "obvious,"22
"clear,"23 or "readily apparent;"24 they are errors which are so
conspicuous that "the trial judge and prosecutor were derelict in
countenancing [them], even absent the defendant's timely assistance
in detecting [them]."25 Although most of our opinions have
recognized that an error must be clearly evident to be plain,26 a
22 Peretz, 111 S.Ct. at 2678; United States v. Robinson, 485
U.S. 25, 34 (1988)(Blackmun, J., concurring in part and dissenting
in part); Socony-Vacuum, 310 U.S. at 239; Atkinson, 297 U.S. at
160.
23 Olano, 113 S.Ct. at 1777.
24 Young, 470 U.S. at 16 n. 14.
25 Frady, 456 U.S. at 163.
26 More recent cases include: Bermea; Knowles, United States
v. Solomon, 1994 WL 416470 (5th Cir. Aug. 10, 1994); Miro;
Stafford; Saenz-Forero; United States v. Andrews, 22 F.3d 1328 (5th
Cir. 1994); United States v. Castaneda-Cantu, 20 F.3d 1325 (5th
Cir. 1994); United States v. Puig-Infante, 19 F.3d 929 (5th Cir.),
petition for cert. filed, ___ U.S.L.W. ___ (U.S. June 2, 1994)(No.
93-9760); United States v. Cordero, 18 F.3d 1248 (5th Cir. 1994);
United States v. Wilder, 15 F.3d 1292 (5th Cir.1994); Rodriguez;
United States v. Carreon, 11 F.3d 1225 (5th Cir. 1994); United
States v. McCaskey, 9 F.3d 368 (5th Cir. 1993), cert. denied, 114
S.Ct. 1565 (1994); United States v. Restivo, 8 F.3d 274 (5th Cir.
1993), petition for cert. filed, 62 U.S.L.W. 3707 (U.S. March 28,
1994)(No. 93-1630); United States v. Samak, 7 F.3d 1196 (5th Cir.
1993); Iwegbu; United States v. Graves, 5 F.3d 1546 (5th Cir.
1993), cert. denied, 114 S.Ct. 1829 (1994); United States v.
Guerrero, 5 F.3d 868 (5th Cir.), cert. denied, 114 S.Ct. 1111
(1994); United States v. Mora, 994 F.2d 1129 (5th Cir.), cert.
denied 114 S.Ct. 417 (1993); United States v. Barakett, 994 F.2d
1107 (1993), cert. denied, 114 S.Ct. 701 (1994); United States v.
El-Zoubi, 993 F.2d 442 (5th Cir. 1993); United States v. Pofahl,
990 F.2d 1456 (5th Cir.), cert. denied sub nom., Nunn v. United
States, 114 S.Ct. 266 (1993); United States v. Garza, 990 F.2d 171
(5th Cir.), cert. denied, 114 S.Ct. 332 (1993); United States v.
Martinez-Cortez, 988 F.2d 1408 (5th Cir.), cert. denied, 114 S.Ct.
605 (1993); United States v. Sanchez, 988 F.2d 1384 (5th Cir.),
cert. denied, 114 S.Ct. 217 (1993); United States v. Hoster, 988
F.2d 1374 (5th Cir. 1993); United States v. Murray; 988 F.2d 518
(5th Cir. 1993); United States v. Laury, 985 F.2d 1293 (5th Cir.
6

significant number have omitted or given insufficient weight to
this element of the plain error equation.27 We today disavow all
holdings and articulations inconsistent herewith.
Finally, to be reviewable under this standard an obvious legal
error must affect substantial rights. Olano counsels that in most
cases the affecting of substantial rights requires that the error
be prejudicial; it must affect the outcome of the proceeding.28 The
burden of persuasion lies with the defendant. Absent a showing
that a substantial right has been compromised, no remedy is
available. This is the reverse of the harmless error analysis
which provides that a defendant who has objected to an error at
trial receives relief absent a demonstration by the government that
no prejudice resulted.29
II.
Upon finding that these elements of plain error are met, an
appellate court is empowered, in its discretion, to correct the
1993); United States v. Waldrip, 981 F.2d 799 (5th Cir. 1993);
United States v. Rena, 981 F.2d 765 (5th Cir. 1993).
27 See supra note 20. See also United States v. Santiago, 993
F.2d 504 (5th Cir. 1993); United States v. Brunson, 915 F.2d 942
(5th Cir. 1990); United States v. Dickie, 775 F.2d 607 (5th Cir.
1985); United States v. Thetford, 676 F.2d 170 (5th Cir. 1982),
cert. denied, 459 U.S. 1148 (1983), all of which fail to articulate
the requirement that the unobjected to error must be obvious.
28 Olano, 113 S.Ct. at 1778. The Court declined to address
whether "'affecting substantial rights' is always synonymous with
'prejudicial.'" That is, "[t]here may be a special category of
forfeited errors that can be corrected regardless of their effect
on the outcome" as well as a subset of "errors that should be
presumed prejudicial." Id.
29 Id. (This shift in the burden of persuasion is premised upon
the language of Fed. R. Crim. P. 52.).
7

assigned error.30 The guidon for this exercise of discretion was
articulated early in United States v. Atkinson31 when the Supreme
Court explained that plain forfeited errors affecting substantial
rights should be corrected on appeal only if they "seriously affect
the fairness, integrity, or public reputation of judicial
proceedings."32 Although a defendant need not be innocent for such
an effect to occur, "a plain error affecting substantial rights
does not, without more, satisfy the Atkinson standard."33 The
appellate courts must determine whether the facts of the particular
case warrant remediation.
III.
Guided by the foregoing, we examine the facts of the instant
case. As noted, Calverley raised three challenges for the first
time on appeal, contending that the district court erred in
sentencing him as a career offender and in retroactively applying
two sections of the Guidelines in violation of the ex post facto
clause. Concluding that none of these claims meets the stringent
requirements of the plain error test, we decline to review their
merits.
Calverley first asserts that possession of a listed chemical
with intent to manufacture a controlled substance in violation of
30 See Olano, explaining that Fed. R. Crim. P. 52(b) "is
permissive, not mandatory" in nature. Id.
31 Id. at 1779.
32 Atkinson, 297 U.S. at 160; see also Olano, 113 S.Ct. at
1779.
33 Olano, 113 S.Ct. at 1779.
8

21 U.S.C. 841(d) does not qualify as a controlled substance offense
within the meaning of U.S.S.G. § 4B1.1, the career offender
guideline. Prior to November 1, 1989, the accompanying
definitional section34 and application notes35 contained commentary
allowing career offender sentencing based on violations of certain
listed crimes, substantially similar crimes, and aiding, abetting,
conspiring, or attempting to commit such crimes. On the basis of
this version of the Guidelines, we held in United States v. Cruz36
that the Texas offense of illegal investment -- investment of funds
that the investor knows are intended to further the commission of
a narcotics offense -- was substantially similar to the offenses
listed and was therefore a controlled substance offense within the
meaning of the guideline.
Effective November 1, 1989, however, the definitional section
and applications notes were amended to delete the list of specific
crimes and the reference to substantially similar crimes.37 Although
in United States v. Rinard38 we followed Cruz without mention of the
guideline amendment, another post-amendment case, United States v.
34 U.S.S.G. § 4B1.2.
35 Id. at application note 2.
36 882 F.2d 922 (5th Cir. 1989).
37 See U.S.S.G. § 4B1.2(2). The amendment was meant to clarify
the definitions. U.S. Sent. Manual App. C, Amendment 268.
Application note 2, as amended, was redenominated application note
1.
38 956 F.2d 85 (5th Cir. 1992).
9

Gaitan,39 questioned Cruz' continued application in light of the
modification of the guideline.40 Other circuits addressing the
continued viability of the pre-amendment guideline language have
split, holding either that an offense is not a controlled substance
offense unless it is specifically enumerated in section 4B1.2(2)41
or that an offense is a controlled substance offense if its
underlying elements also satisfy the definition of controlled
substance offense in section 4B1.2(2).42
The uncertainty manifest in this area of the law illustrates
that any error on the part of the trial court could not be plain.
Assuming, without deciding, that studied analysis of section
4B1.2(2) would lead to the conclusion that possession of a listed
chemical with intent to manufacture a controlled substance is not
a controlled substance offense, this conclusion was not obvious
when the court sentenced Calverley as a career offender.
Consequently, neither the trial judge nor the prosecutor may be
considered derelict in failing to notice that one interpretation of
the career offender guideline foreclosed that application.
Calverley next maintains that he was sentenced in violation of
the ex post facto clause. He claims that the trial judge relied on
39 954 F.2d 1005 (5th Cir. 1992).
40 The panel suggested that because Cruz rested on the
substantially similar language now deleted from the guideline, its
holding may not have survived the 1989 amendment.
41 See United States v. Baker, 16 F.3d 854 (8th Cir. 1994);
United States v. Wagner, 994 F.2d 1467 (10th Cir. 1993).
42 United States v. Vea-Gonzales, 999 F.2d 1326 (9th Cir.
1993).
10

commentary added to section 4A1.243 after his offense in deciding
that five prior prison sentences were not "related cases"44 and that
the judge erroneously used the chemical quantity table of section
2D1.1145 to compute his offense level before that section became
effective.
Assuming that the sentence was imposed in violation of the ex
post facto clause, Calverley has failed to demonstrate prejudice.
He must show that the outcome of his proceeding was affected by the
error. Calverley has failed to carry his burden; he has not
demonstrated how his sentence would have been different but for the
alleged errors.46 Thus, assuming without deciding that the trial
judge committed legal error by applying the Guidelines as they
existed at the time of Calverley's sentencing, no plain error
permitting appellate review is extant.
Calverley finally challenges the trial court's denial of the
request for a two-point reduction in offense level for acceptance
of responsibility. Calverley properly voiced his objection at
trial. We review the assignment of error. The original panel
thoroughly considered and appropriately resolved this claim; we
therefore reinstate and adopt Part D of the panel opinion, 11 F.3d
at 513-16.
43 U.S.S.G. § 4A1.2 cmt. 3.
44 U.S.S.G. §§ 4A1.1, 4A1.2(a)(2).
45 U.S.S.G. § 2D1.11.
46 See e.g., United States v. Brunson, 915 F.2d 942 (5th Cir.
1990)(no plain error where judge can reinstate same sentence on
remand despite earlier error).
11

The judgment of the district court is AFFIRMED.
DeMOSS and BENAVIDES, Circuit Judges, Dissenting.
12