The Yale Law Journal

Molina-Martinez and Sentencing Error as Loss of Chance

Charles C. Bridge
21 Apr 2016

Yesterday, in Molina-Martinez v. United States (No. 14-8913), the Supreme Court held that the application of an erroneous Federal Sentencing Guidelines range “can, and most often will, be sufficient to show a reasonable probability of a different outcome” for the purposes of Rule 52(b) plain-error review. Molina-Martinez, slip op. at 9. In reaching this conclusion, the Court emphasized the Guidelines’ role in “anchor[ing] the [district] court’s discretion” in sentencing. Id. at 15.

In a Volume 124 Comment, Federal Sentencing Error as Loss of Chance, Kate Huddleston advanced a similar argument, conceptualizing Guidelines sentencing error as “a problem of probability” because the (advisory) Guidelines’ force comes from their anchoring effect on judges. The Comment posited that, under this probability framing, Guidelines error could be cognizable in postconviction proceedings pursuant to 28 U.S.C. § 2255. After Molina-Martinez, the logic of postconviction error “as loss of chance” may have a renewed force.

Concurring only in the judgment in Molina-Martinez, Justice Alito opined that the Court was relying on statistics that “provide an unstable and shifting basis for the Court’s prophecies” about the Guidelines’ future influence on district courts. Molina-Martinez, slip op. at 6 (Alito, J., concurring in the judgment). For that proposition, he cited Kate Stith’s Volume 117 Feature, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, which hypothesized that, “as a new [post-Booker] generation of prosecutors and judges enters into service, the pendulum may swing back toward the local exercise of informed discretion . . . .” Id. at 7.