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Extensive Discussion of Plain Error Review of Downward Variance

By Shari Allison

US v. Mendoza, 2008 WL 4416524 (10th Cir. Oct. 1 2008) (published): The government appealed the sentence given to Mr. Mendoza after the district court granted a variance from the 324-month advisory guideline range for his drug conviction and imposed a 240-month sentence. The Tenth reviewed for plain error and affirmed the sentence. The government contended the court's statement of reasons was procedurally insufficient. Even though the government had substantively objected to the variance, it made these objections before the court's explanation and thus did not address procedural deficiency. Thus, plain error applied. The Court acknowledged that if a party doesn't have an opportunity to object, the absence of an objection does not later prejudice the party, but in this case the court asked counsel for further comments and the government had said, "Nothing...continue to full post

Full post as published by Tenth Circuit Blog on October 03, 2008 (boomark / email).