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An Unusual Case of Pure Error Correction at the Supreme Court

The Supeme Court issued a one-page per curiam opinion today in Salinas v. United States.  The Salinas opinion is a rare species at the Supreme Court: A reversal solely for the purpose of error correction from the Court’s in forma pauperis (IFP) docket that reverses an unpublished decision. 

Salinas was convicted of bank robbery and was given a 3-level enhancement at sentencing for being a “career offender” under 4B1.1.   A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. 

Salinas had three past convictions of note:  Two prior bank robberies and one count of narcotics possession.  Before the Fifth Circuit, Salinas argued (among other things) that the two prior bank robberies were related, and thus couldn’t be considered as “two prior felony convictions” for the purpose of applying the enhancement.  Trial counsel for Salinas didn’t raise the issue at trial, so the Fifth Circuit applied plain error review.

In an unpublished per curiam opinion, a panel of Judges Davis, Jones, and Garza rejected the claim that plain error existed.  The problem, the panel reasoned, was that Salinas couldn’t show that any possible error had prejudiced him:

In addition to the two robberies counted separately, Salinas also pleaded guilty to felony possession of a controlled substance at the age of nineteen. Thus, it is irrelevant whether his robberies are related. Salinas’ substantial rights were not affected because the alleged error had no impact on his sentence.  Accordingly, Salinas cannot show plain error.

But the Fifth Circuit’s analysis was wrong: mere possession cannot be a controlled substance offense under the Sentencing Guidelines.  Thus the Fifth Circuit should have addressed the question of whether the robberies were related.

As a general rule, the chances that the Supreme Court will step in for a case like this are extremely low.  Even if the lower court erred, the error did not raise an important question, and the lower court’s decision has no precedential value.  The lower court decision was unpublished; the issue was plain error; the outcome of the appeal may not hinge on this issue; and the stakes for the petitioner were relatively low in the grand scheme of things.  The Supreme Court has limited resources, and usually lets this sort of error pass uncorrected.  Nonetheless, the Supreme Court reversed, pointing out the error and sending the case back to the Fifth Circuit. 

Does Salinas signal a new interest from the Roberts Court in correcting errors by lower courts via brief per curiam opinions?  I’m not sure, but it’s possible. Of course, it’s hard to tell without reading the briefs, which don’t appear to be available online. (The SG’s website does not post briefs filed in IFP cases like Salinas.)  The Supreme Court’s opinion notes that the SG’s brief acknowledges the error, which presumably helped fuel the momentum to vacate the judgment and send the case back to the Fifth Circuit.