Extensive Discussion of Plain Error Review of Downward Variance

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."

The Tenth goes into some detail about what it requires for an explanation of a variance. The district court's explanation for its downward variance was error because it was generalized and not specifically about the defendant. Additionally the error was plain under Tenth Circuit jurisprudence. In contrast to when a variance is granted, the district court doesn't have to provide a "particularized analysis" when imposing a within-guidelines sentence. However, in the absence of any indication the court would have imposed a higher sentence if the procedural error had been brought to its attention, the government had failed to show its substantial rights were affected.