Wednesday, October 01, 2014

New hurdle for preserving challenges to variances

U.S. v. Riggins, 2014 WL 4637960 (9/18/14) (Kan.) (unpub'd) - A worrisome preservation issue here. The 10th characterizes as procedural Mr. Riggins' argument that the district court did not provide sufficiently compelling justifications for the degree of an upward variance. Because of this characterization, the 10th said Mr. Riggins had to raise the "sufficiently compelling" argument in the district court, which he did not. Ordinarily a substantive-reasonableness argument doesn't have to be raised post-sentence. Plain error review followed. Arguably, the "sufficiently compelling" argument is more like a substantive-unreasonableness challenge. And other 10th Circuit judges might feel that way. But, in any event, this decision means that when defense counsel challenges the degree of variance, counsel should make a "sufficiently compelling" objection after the district court explains and announces its sentence, regardless of how vigorously counsel has argued that point before then.