Failure to Object to Sentencing Method Results in Review for Plain Error

U.S. v. Lopez-Flores, --- F.3d ----, 2006 WL 1000810 (10th Cir. April 18, 2006)

Defendant appealed district court’s failure to explain its reasons for imposing the within-guidelines at-the-low-end sentence. (Reentry after deportation/aggravated felony). As mitigation grounds, Defendant raised his lack of information from previous counsel that it was illegal to reenter the US, but now he knew the consequences.

While the 10th reaffirms that reasonableness review encompasses not only the length of the sentence but also the method by which the sentence was arrived at, it now requires an OBJECTION AT SENTENCING to the METHOD employed by the court in order to preserve it for review. (It is likely that a contemporaneous objection to the reasonableness of the length of the sentence is not required, given the 10th’s discussion. PRACTICE TIP: Object to method and length every time the judge does not do what you want). Defendant did not object, so plain error review. 10th says no error under first prong of test. It states: “When the defendant has not raised any substantial contentions concerning non-Guidelines § 3553(a) factors and the district court imposes a sentence within the Guidelines range, our post-Booker precedents do not require the court to explain on the record how the § 3553(a) factors justify the sentence.”