Counsel Must Object to District Court's Failure to State Sufficient Reasons For Sentence

U.S. v. Romero, 2007 WL 1874231 (6/29/07)(published) - The 10th makes clear that trial counsel MUST OBJECT to a d.ct.'s failure to state adequate reasons to explain its sentence in order to avoid plain error review, i.e., to avoid certain affirmance. The 10th acknowledged it had been unclear on this point because in U.S. v. Sanchez-Juarez, 446 F.3d 1109 (10th Cir. 2006), and its progeny, it had reviewed the inadequate-reasons argument de novo, even though counsel had not objected. In other cases, including its first decision on the point, i..e., U.S. v. Lopez-Flores, 444 F.3d 1218 (10th Cir. 2006), it did require an objection. The 10th follows Lopez-Flores because it was first, because it has the benefit of affording the d.ct. a chance to correct its mistake, because of the overruling of U.S. v. Bartsma, 198 F.3d 1191 (10th Cir. 1999) in U.S. v. Atencio, 476 F.3d 1099, 1105, n. 6 (10th Cir. 2007), and because other circuits agree with the Lopez-Flores approach. The 10th failed to mention a couple of circuits that take the opposite position. So, the issue is still ripe for en banc and S.Ct. review. In this case, there was no objection. There is no relief under the plain error standard because the defendant could not show the failure to state reasons affected his substantial rights. That would doubtless be true for any defendant. So, OBJECT already.

The record sufficiently established the defendant read the PSR where counsel said at the sentencing hearing "we've read it." It was not necessary to engage the defendant himself in a colloquy about his reading of the PSR. Plus, unlike two other circuits, the 10th requires a showing of prejudice resulting from the failure to read the PSR to gain a reversal. Good luck with that.