[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] Wednesday in Henderson v. United States [transcript, PDF; JURIST report] on appellate review for plain error. The question before the court was whether, under Federal Rule of Criminal Procedure 52(b) [text], an appellate court reviewing a trial court decision for “plain error,” when a matter of law was unsettled at the time of trial but is settled by the time of appeal, should consider what the law was at the time of trial or at the time of appeal. As of now, the First, Second, Sixth, Tenth and Eleventh Circuits apply the law at the time of appeal, but the Ninth Circuit uses the law at the time of trial. Henderson’s attorney argued that the interest in preventing clear errors and allowing justice supports the idea that the time-of-appeal rule should prevail so that defendants will not be treated under a rule that has been ruled unconstitutional or wrong for other reasons. Attorneys for the US government, however, argued that the interest in promoting objections at the time of trial and avoiding reversal of trial court decisions that were, at the time they were made, reasonable under the circumstances, even if they were later proven to be wrong by a higher court, supports the idea that the time-of-trial rule is correct.

This case stems from Armarcion Henderson’s sentence of 60 months in prison after conviction for a felony punishable by 33 to 41 months in prison because the trial court wanted him to be eligible for a federal drug rehabilitation program that required a five-year sentence for eligibility. By the time Henderson appealed to the US Court of Appeals for the Fifth Circuit [official website], the Supreme Court had decided US v. Tapia [opinion], in which it ruled that federal law did not allow courts to lengthen a sentence for the purpose of promoting rehabilitation. The Fifth Circuit, however, applied the time-of-trial rule, and ruled [opinion] that because Tapia had not been decided at the time of his trial there was no plain error made by the trial court. Later, however, around the time that Henderson’s petition for writ of certiorari in the Supreme Court was filed, the Fifth Circuit took another case rejecting the time-of-trial doctrine and adopting the time-of-appeal rule.