U.S. v. Ravitch

19 Citing cases

  1. U.S. v. Toomey

    271 F. App'x 439 (5th Cir. 2008)   Cited 1 times
    Affirming lifetime supervision defendant convicted multiple counts possession and aiding and abetting interstate transportation child pornography

    Assuming that the district court erred in failing to state that the guidelines range was two years to life, and that such error was plain, Toomey has not shown a "reasonable probability that, but for the district court's misapplication of the Guidelines, he would have received a lesser sentence." United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005) (post- Booker); but see United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997) (pre- Booker, holding that inquiry is whether the district court could have imposed the same sentence). Consistent with Ravitch, the district court could reimpose the same sentence on remand.

  2. U.S. v. Wheeler

    322 F.3d 823 (5th Cir. 2003)   Cited 57 times
    Holding that a "division's higher population of African-American residents should not influence the transfer decision"

    Plain error review, however, differs from the harmless error analysis in the additional respect that the question is not whether the district court would have chosen the same sentence absent the error, but whether it could have done so. See United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997) ("[W]here we have concluded that `[i]f the case were remanded the trial judge could reinstate the same sentence,' we have upheld the defendant's sentence although the district court's stated reasons . . . evidence a mistaken application of the Sentencing Guidelines." (quoting United States v. Brunson, 915 F.2d 942, 944 (5th Cir. 1990))).

  3. U.S. v. Webster

    162 F.3d 308 (5th Cir. 1998)   Cited 249 times
    Holding that once a district court has reached the second step of the Batson analysis, "we no longer examine whether a prima facie case exists"

    We may consider this question on appeal, therefore, only if it constitutes plain error. See United States v. Olano, 507 U.S. 725, 731 (1993) ("No procedural principle is more familiar to this Court than that a [right] may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.") (quoting Yakus v. United States, 321 U.S. 414, 444 (1944) (internal citations omitted)); see also United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997); Calverley, 37 F.3d at 162; Helms v. United States, 340 F.2d 14, 19 (5th Cir. 1964). We find plain error "only when the appellant shows that (1) there is an error, (2) the error is plain, and (3) the error affects her substantial rights."

  4. U.S. v. Leonard

    157 F.3d 343 (5th Cir. 1998)   Cited 17 times
    Holding that a sentencing error by the district court was plain even though the issue was one of first impression in this circuit because four other circuits had addressed the issue and reached the opposite result as the district court and because the language of the statute was “clear and unambiguous”

    Accordingly, there must be error, the error must be plain, and the error must affect appellant's substantial rights. United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997). This circuit has held that even if such error is proven, the decision to correct the forfeited error falls within the discretion of the appellate court.

  5. United States v. Rodriguez-Rodriguez

    775 F.3d 706 (5th Cir. 2015)   Cited 6 times
    Finding harmless error where the district court justified its sentence by stating that “[t]he sentence I'm about to impose would be the same with or without the Guidelines”

    This Circuit has occasionally applied a different standard to this prong of plain-error review, asking instead whether the district court could impose the same sentence on remand. See Earnest Jones, 489 F.3d at 682 (citing United States v. Ravitch, 128 F.3d 865, 869 (5th Cir.1997) ). There is some doubt as to whether Ravitch 's objective test survived United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Davis, 602 F.3d 643, 647 n. 6 (5th Cir.2010).

  6. United States v. Cortez-Velez

    548 F. App'x 242 (5th Cir. 2013)

    He does not argue that if the case was remanded for resentencing, the district court could not impose the same consecutive sentences. See United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997). Additionally, he points to nothing in the record to support his conclusional assertion that there is a reasonable probability that, but for the district court's error, he would have received lower sentences.

  7. U.S. v. Gaither

    434 F. App'x 393 (5th Cir. 2011)   Cited 3 times
    Holding that Guidelines error did not warrant vacatur of defendant's sentence on plain error review where correct and incorrect Guidelines ranges overlapped by two months and the court imposed a sentence six months higher than the overlap

    (As noted recently, our court has not fully resolved whether a different substantial-rights standard also remains in effect, i.e., "if the case were remanded, the trial judge could reinstate the same sentence". United States v. Davis, 602 F.3d 643, 647 n. 6 (5th Cir. 2010) (quoting United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997)).) Even if defendant makes that showing, our court retains discretion to correct the error and, generally, will do so only "if the error seriously affects the fairness, integrity or public reputation of judicial proceedings".

  8. U.S. v. Mudekunye

    646 F.3d 281 (5th Cir. 2011)   Cited 84 times
    Holding a two-level sentencing discrepancy was plain error because "[t]he substantial disparity between the imposed sentence and the applicable Guidelines range warrants the exercise of our discretion to correct the error"

    United States v. Villegas, 404 F.3d 355, 364-65 (5th Cir. 2005) (emphasis added). (As noted recently by our court, and discussed infra, it is unclear whether a different, pre- Booker, standard for evaluating a sentencing error's effect on substantial rights remains in effect: "if the case were remanded, the trial judge could reinstate the same sentence". United States v. Davis, 602 F.3d 643, 647 n. 6 (5th Cir. 2010) (quoting United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997)).) For Rule 52(a) harmless-error review, the Government bears the burden of showing the error was harmless beyond a reasonable doubt; however, for Rule 52(b)'s plain-error review, it is the defendant who bears the burden of persuasion with respect to the prejudice (third) prong.

  9. U.S. v. Davis

    602 F.3d 643 (5th Cir. 2010)   Cited 132 times
    Concluding that although there was an error that was plain, reversal was not warranted because the error was “not the sort that we should, on plain error review, exercise our discretion to remedy”

    Pre- Booker, our standard for evaluating an error's effect on substantial rights was whether, "if the case were remanded, the trial judge could reinstate the same sentence." United States v. Ravitch, 128 F.3d 865, 869 (5th Cir. 1997). Some of our cases have questioned whether Ravitch might continue to apply post-Booker See, e.g., United States v. Price, 516 F.3d 285, 289 n. 28 (5th Cir. 2008).

  10. U.S. v. Price

    516 F.3d 285 (5th Cir. 2008)   Cited 77 times   1 Legal Analyses
    Holding a sentence disparity of 18 months was reversible plain error

    We recognize the potential conflict between pre- and post- Booker decisions addressing the question of "affecting substantial rights." In our pre- Booker case United States v. Ravitch, we asked "`if the case were remanded, [whether] the trial judge could rein-state the same sentence.'" 128 F.3d 865, 869 (5th Cir. 1997) (emphasis added) (quoting United States v. Branson, 915 F.2d 942, 944 (5th Cir. 1990)). If the judge could reinstate the sentence, we held, we would find no prejudice under plain error review. Post- Booker, in United States v. Villegas, we held that the question of substantial rights turns on "whether the defendant can show a reasonable probability that, but for the district court's misapplication of the Guidelines, [the defendant] would have received a lesser sentence."