(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MOLINA-MARTINEZ v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 14–8913. Argued January 12, 2016—Decided April 20, 2016
The Federal Sentencing Guidelines first enter the sentencing process
when the United States Probation Office prepares a presentence re-
port containing, as relevant here, an advisory Guidelines range based
on the seriousness of a defendant’s offense and the extent of his crim-
inal history. A district court may depart from the Guidelines, but it
“must consult [them] and take them into account when sentencing.”
United States v. Booker, 543 U. S. 220, 264. Given the Guidelines’
complexity, a District Court’s use of an incorrect Guidelines range
may go unnoticed. That error can be remedied on appeal pursuant to
Federal Rule of Criminal Procedure 52(b), provided that (1) there is
an error that was not intentionally relinquished or abandoned, Unit-
ed States v. Olano, 507 U. S. 725, 732–733; (2) the error is plain, i.e.,
clear or obvious, id., at 734; and (3) the error affected the defendant’s
substantial rights, ibid., which in the ordinary case means he or she
must “show a reasonable probability that, but for the error,” the out-
come of the proceeding would have been different, United States v.
Dominguez Benitez, 542 U. S. 74, 82. Once these three conditions
have been met, the court of appeals should exercise its discretion to
correct the forfeited error if the error “ ‘seriously affects the fairness,
integrity or public reputation of judicial proceedings.’ ” Olano, 507
U. S., at 736 (brackets omitted).
Petitioner Molina-Martinez pleaded guilty to being unlawfully pre-
sent in the United States after having been deported following an ag-
gravated felony conviction. The Guidelines range in his presentence
report was 77 to 96 months. He requested, and the Probation Office
recommended, a 77-month sentence, while the Government requested
96 months. The District Court, with little explanation, sentenced
him to the lowest end of what it believed to be the applicable Guide-
2 MOLINA-MARTINEZ v. UNITED STATES
Syllabus
lines range—77 months. On appeal, Molina-Martinez argued for the
first time that the Probation Office and the District Court miscalcu-
lated his Guidelines range, which should have been 70 to 87 months,
and noted that his 77-month sentence would have been in the middle
of the correct range, not at the bottom. The Fifth Circuit agreed that
the District Court used an incorrect Guidelines range but found that
Molina-Martinez could not satisfy Rule 52(b)’s requirement that the
error affect his substantial rights. It reasoned that a defendant
whose sentence falls within what would have been the correct Guide-
lines range must, on appeal, identify “additional evidence” showing
that use of the incorrect Guidelines range in fact affected his sen-
tence.
Held: Courts reviewing Guidelines errors cannot apply a categorical
“additional evidence” rule in cases, like this one, where a district
court applies an incorrect range but sentences the defendant within
the correct range. Pp. 8–16.
(a) The Guidelines establish the essential framework for sentenc-
ing proceedings. Sentencing courts “ ‘must begin their analysis with
the Guidelines and remain cognizant of them throughout the sentenc-
ing process.’ ” Peugh v. United States, 569 U. S. ___, ___. Sentencing
Commission statistics confirm that the Guidelines inform and in-
struct the district court’s determination of an appropriate sentence.
In the usual case, the systemic function of the selected Guidelines
range will affect a defendant’s sentence. As a result, a defendant who
shows that the district court mistakenly deemed applicable an incor-
rect, higher range will, in the ordinary case, have demonstrated a
reasonable probability of a different outcome. That showing will suf-
fice for relief if Rule 52(b)’s other requirements are met. Pp. 9–12.
(b) The unworkable nature of the Fifth Circuit’s “additional evi-
dence” rule is evident here, where the record shows that the District
Court gave little explanation for the sentence it selected, rejected the
Government’s request for a sentence at the top of the erroneous
Guidelines range, and chose the sentence requested by the defendant
and recommended by the Probation Office—a sentence at the bottom
of the erroneous Guidelines range. This demonstrates that the
Guidelines served as the starting point for the sentencing and were
the focal point for the proceedings that followed. Given the sentence
the District Court chose, and because the court said nothing to sug-
gest that it would have imposed the same sentence regardless of the
Guidelines range, there is at least a reasonable probability that the
court would have imposed a different sentence had it known that 70
months was the lowest sentence the Commission deemed appropri-
ate. Pp. 12–13.
(c) Rejection of the Fifth Circuit’s rule means only that a defendant
Cite as: 578 U. S. ____ (2016) 3
Syllabus
can rely on the application of an incorrect Guidelines range to show
an effect on his substantial rights, not that the Government will have
to prove that every Guidelines error was harmless. And the Govern-
ment’s concern over the judicial resources needed for the resentenc-
ing proceedings that might result from today’s holding is unfounded
because the holding is consistent with the approach taken by most
Courts of Appeals and because remanding for resentencing is less
costly than remanding for retrial. Pp. 13–15.
588 Fed. Appx. 333, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined.
ALITO, J., filed an opinion concurring in part and concurring in the
judgment, in which THOMAS, J., joined.
Cite as: 578 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–8913
_________________
SAUL MOLINA-MARTINEZ, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[April 20, 2016]
JUSTICE KENNEDY delivered the opinion of the Court.
This case involves the Federal Sentencing Guidelines.
In sentencing petitioner, the District Court applied a
Guidelines range higher than the applicable one. The
error went unnoticed by the court and the parties, so no
timely objection was entered. The error was first noted
when, during briefing to the Court of Appeals for the Fifth
Circuit, petitioner himself raised the mistake. The Court
of Appeals refused to correct the error because, in its view,
petitioner could not establish a reasonable probability that
but for the error he would have received a different sen-
tence. Under that court’s decisions, if a defendant’s ulti-
mate sentence falls within what would have been the
correct Guidelines range, the defendant, on appeal, must
identify “additional evidence” to show that use of the
incorrect Guidelines range did in fact affect his sentence.
Absent that evidence, in the Court of Appeals’ view, a
defendant who is sentenced under an incorrect range but
whose sentence is also within what would have been the
correct range cannot demonstrate he has been prejudiced
by the error.
2 MOLINA-MARTINEZ v. UNITED STATES
Opinion of the Court
Most Courts of Appeals have not adopted so rigid a
standard. Instead, in recognition of the Guidelines’ cen-
tral role in sentencing, other Courts of Appeals have con-
cluded that a district court’s application of an incorrect
Guidelines range can itself serve as evidence of an effect
on substantial rights. See, e.g., United States v. Sabillon-
Umana, 772 F. 3d 1328, 1333 (CA10 2014) (application of
an erroneous Guidelines range “ ‘runs the risk of affecting
the ultimate sentence regardless of whether the court
ultimately imposes a sentence within or outside’ ” that
range); United States v. Vargem, 747 F. 3d 724, 728–729
(CA9 2014); United States v. Story, 503 F. 3d 436, 440
(CA6 2007). These courts recognize that, in most cases,
when a district court adopts an incorrect Guidelines
range, there is a reasonable probability that the defend-
ant’s sentence would be different absent the error. This
Court granted certiorari to reconcile the difference in
approaches.
I
A
The Sentencing Guidelines provide the framework for
the tens of thousands of federal sentencing proceedings
that occur each year. Congress directed the United States
Sentencing Commission (USSC or Commission) to estab-
lish the Guidelines. 28 U. S. C. §994(a)(1). The goal was
to achieve “ ‘uniformity in sentencing . . . imposed by dif-
ferent federal courts for similar criminal conduct,’ as well
as ‘proportionality in sentencing through a system that
imposes appropriately different sentences for criminal
conduct of different severity.’ ” Rita v. United States, 551
U. S. 338, 349 (2007). To those ends, the Commission
engaged in “a deliberative and dynamic process” to create
Guidelines that account for a variety of offenses and cir-
cumstances. USSC, Guidelines Manual §2, ch. 1, pt. A,
intro. comment., p. 14 (Nov. 2015) (USSG). As part of that
Cite as: 578 U. S. ____ (2016) 3
Opinion of the Court
process, the Commission considered the objectives of
federal sentencing identified in the Sentencing Reform Act
of 1984—the same objectives that federal judges must
consider when sentencing defendants. Compare 28
U. S. C. §991(b) with 18 U. S. C. §3553(a). The result is a
set of elaborate, detailed Guidelines that aim to embody
federal sentencing objectives “both in principle and in
practice.” Rita, supra, at 350.
Uniformity and proportionality in sentencing are
achieved, in part, by the Guidelines’ significant role in
sentencing. See Peugh v. United States, 569 U. S. ___, ___
(2013) (slip op., at 10). The Guidelines enter the sentenc-
ing process long before the district court imposes the
sentence. The United States Probation Office first pre-
pares a presentence report which includes a calculation of
the advisory Guidelines range it considers to be applicable.
Fed. Rules Crim. Proc. 32(d)(1)(A)–(C); see generally 18
U. S. C. §3552(a). The applicable Guidelines range is
based on the seriousness of a defendant’s offense (indicated
by his “offense level”) and his criminal history (indi-
cated by his “criminal history category”). Rules
32(d)(1)(B)–(C). The presentence report explains the basis
for the Probation Office’s calculations and sets out the
sentencing options under the applicable statutes and
Guidelines. Rule 32(d)(1). It also contains detailed infor-
mation about the defendant’s criminal history and personal
characteristics, such as education and employment his-
tory. Rule 32(d)(2).
At the outset of the sentencing proceedings, the district
court must determine the applicable Guidelines range.
Peugh, supra, at ___ (slip op., at 10). To do so, the court
considers the presentence report as well as any objections
the parties might have. The court then entertains the
parties’ arguments regarding an appropriate sentence,
including whether the sentence should be within the
Guidelines range or not. Although the district court has
4 MOLINA-MARTINEZ v. UNITED STATES
Opinion of the Court
discretion to depart from the Guidelines, the court “must
consult those Guidelines and take them into account when
sentencing.” United States v. Booker, 543 U. S. 220, 264
(2005).
B
The Guidelines are complex, and so there will be in-
stances when a district court’s sentencing of a defendant
within the framework of an incorrect Guidelines range
goes unnoticed. In that circumstance, because the defend-
ant failed to object to the miscalculation, appellate review
of the error is governed by Federal Rule of Criminal Pro-
cedure 52(b).
Rule 52, in both its parts, is brief. It states:
“(a) HARMLESS ERROR. Any error, defect, irregularity,
or variance that does not affect substantial rights
must be disregarded.
“(b) PLAIN ERROR. A plain error that affects substan-
tial rights may be considered even though it was not
brought to the court’s attention.”
The starting point for interpreting and applying para-
graph (b) of the Rule, upon which this case turns, is the
Court’s decision in United States v. Olano, 507 U. S. 725
(1993). Olano instructs that a court of appeals has discre-
tion to remedy a forfeited error provided certain conditions
are met. First, there must be an error that has not been
intentionally relinquished or abandoned. Id., at 732–733.
Second, the error must be plain—that is to say, clear or
obvious. Id., at 734. Third, the error must have affected
the defendant’s substantial rights, ibid., which in the
ordinary case means he or she must “show a reasonable
probability that, but for the error,” the outcome of the
proceeding would have been different, United States v.
Dominguez Benitez, 542 U. S. 74, 76, 82 (2004). Once
these three conditions have been met, the court of appeals
Cite as: 578 U. S. ____ (2016) 5
Opinion of the Court
should exercise its discretion to correct the forfeited error
if the error “ ‘seriously affects the fairness, integrity or
public reputation of judicial proceedings.’ ” Olano, supra,
at 736 (brackets omitted).
II
The petitioner here, Saul Molina-Martinez, pleaded
guilty to being unlawfully present in the United States
after having been deported following an aggravated felony
conviction, in violation of 8 U. S. C. §§1326(a) and (b). As
required, the Probation Office prepared a presentence
report that related Molina-Martinez’s offense of convic-
tion, his criminal history, his personal characteristics, and
the available sentencing options. The report also included
the Probation Office’s calculation of what it believed to be
Molina-Martinez’s Guidelines range. The Probation Office
calculated Molina-Martinez’s total offense level as 21. It
concluded that Molina-Martinez’s criminal history war-
ranted 18 points, which included 11 points for five aggra-
vated burglary convictions from 2011. Those 18 criminal
history points resulted in a criminal history category of VI.
That category, combined with an offense level of 21, re-
sulted in a Guidelines range of 77 to 96 months.
At the sentencing hearing Molina-Martinez’s counsel
and the Government addressed the court. The Govern-
ment acknowledged that the Probation Office had “rec-
ommended the low end on this case, 77 months.” App. 30.
But, the prosecution told the court, it “disagree[d] with
that recommendation,” and was “asking for a high end
sentence of 96 months”—the top of the Guidelines range.
Ibid. Like the Probation Office, counsel for Molina-
Martinez urged the court to enter a sentence at the bottom
of the Guidelines range. Counsel asserted that “77
months is a severe sentence” and that “after the 77
months, he’ll be deported with probably a special release
term.” Id., at 32. A sentence of 77 months, counsel con-
6 MOLINA-MARTINEZ v. UNITED STATES
Opinion of the Court
tinued, “is more than adequate to ensure he doesn’t come
back again.” Ibid.
After hearing from the parties, the court stated it was
adopting the presentence report’s factual findings and
Guidelines calculations. It then ordered Molina-
Martinez’s sentence:
“It’s the judgment of the Court that the defendant,
Saul Molina-Martinez, is hereby committed to the
custody of the Bureau of Prisons to be imprisoned for
a term of 77 months. Upon release from imprison-
ment, Defendant shall be placed on supervised release
for a term of three years without supervision.” Id.,
at 33.
The court provided no further explanation for the
sentence.
On appeal, Molina-Martinez’s attorney submitted a brief
pursuant to Anders v. California, 386 U. S. 738 (1967).
The attorney explained that, in his opinion, there were no
nonfrivolous grounds for appeal. Molina-Martinez, how-
ever, submitted a pro se response to his attorney’s Anders
brief. In it he identified for the first time what he believed
to be an error in the calculation of his criminal history
points under the Guidelines. The Court of Appeals con-
cluded that Molina-Martinez’s argument did not appear
frivolous. It directed his lawyer to file either a supple-
mental Anders brief or a brief on the merits of the Guide-
lines issue.
Molina-Martinez, through his attorney, filed a merits
brief arguing that the Probation Office and the District
Court erred in calculating his criminal history points,
resulting in the application of a higher Guidelines range.
The error, Molina-Martinez explained, occurred because
the Probation Office failed to apply §4A1.2(a)(2) of the
Guidelines. See USSG §4A1.2(a)(2) (Nov. 2012). That
provision addresses how multiple sentences imposed on
Cite as: 578 U. S. ____ (2016) 7
Opinion of the Court
the same day are to be counted for purposes of determin-
ing a defendant’s criminal history. It instructs that, when
prior sentences were imposed on the same day, they
should be counted as a single sentence unless the offenses
“were separated by an intervening arrest (i.e., the defend-
ant is arrested for the first offense prior to committing the
second offense).” Ibid.
Molina-Martinez’s presentence report included five
aggravated burglary convictions for which he had been
sentenced on the same day. The Probation Office counted
each sentence separately, which resulted in the imposition
of 11 criminal history points. Molina-Martinez contended
this was error because none of the offenses were separated
by an intervening arrest and because he had been sen-
tenced for all five burglaries on the same day. Under a
correct calculation, in his view, the burglaries should have
resulted in 5 criminal history points instead of 11. That
would have lowered his criminal history category from VI
to V. The correct criminal history category, in turn, would
have resulted in a Guidelines range of 70 to 87 months
rather than 77 to 96 months. Had the correct range been
used, Molina-Martinez’s 77-month sentence would have
been in the middle of the range, not at the bottom.
Molina-Martinez acknowledged that, because he did not
object in the District Court, he was entitled to relief only if
he could satisfy Rule 52(b)’s requirements. He neverthe-
less maintained relief was warranted because the error
was plain, affected his substantial rights, and impugned
the fairness, integrity, and public reputation of judicial
proceedings.
The Court of Appeals disagreed. It held that Molina-
Martinez had not established that the District Court’s
application of an incorrect Guidelines range affected his
substantial rights. It reasoned that, when a correct sen-
tencing range overlaps with an incorrect range, the re-
viewing court “ ‘do[es] not assume, in the absence of addi-
8 MOLINA-MARTINEZ v. UNITED STATES
Opinion of the Court
tional evidence, that the sentence [imposed] affects a
defendant’s substantial rights.’ ” 588 Fed. Appx. 333, 335
(CA5 2014) (per curiam); see also United States v. Blocker,
612 F. 3d 413, 416 (CA5 2010). Molina-Martinez, the
court ruled, had not put forth the additional evidence
necessary to show that the error affected his substantial
rights. “The mere fact that the court sentenced Molina-
Martinez to a low-end sentence,” the Court of Appeals
reasoned, “is insufficient on its own to show that Molina-
Martinez would have received a similar low-end sentence
had the district court used the correct Guidelines range.”
588 Fed. Appx., at 335. Instead, Molina-Martinez needed
to identify “ ‘additional evidence’ ” in the record showing
that the Guidelines had an effect on the District Court’s
selection of his sentence. Ibid. The court noted that “the
district court made no explicit statement suggesting that
the Guidelines range was a primary factor in sentencing.”
Ibid. And the court did not view as probative “the parties’
anchoring of their sentencing arguments in the Guide-
lines” or “the district court’s refusal to grant the govern-
ment’s request for a high-end sentence of 96 months.”
Ibid.
This Court granted certiorari to resolve the disagree-
ment among Courts of Appeals over how to determine
whether the application of an incorrect Guidelines range
at sentencing affected the defendant’s substantial rights.
See 576 U. S. ___ (2015).
III
The Court of Appeals for the Fifth Circuit stands gener-
ally apart from other Courts of Appeals with respect to its
consideration of unpreserved Guidelines errors. This
Court now holds that its approach is incorrect.
Nothing in the text of Rule 52(b), its rationale, or the
Court’s precedents supports a requirement that a defend-
ant seeking appellate review of an unpreserved Guidelines
Cite as: 578 U. S. ____ (2016) 9
Opinion of the Court
error make some further showing of prejudice beyond the
fact that the erroneous, and higher, Guidelines range set
the wrong framework for the sentencing proceedings. This
is so even if the ultimate sentence falls within both the
correct and incorrect range. When a defendant is sen-
tenced under an incorrect Guidelines range—whether or
not the defendant’s ultimate sentence falls within the
correct range—the error itself can, and most often will, be
sufficient to show a reasonable probability of a different
outcome absent the error.
A
Today’s holding follows from the essential framework
the Guidelines establish for sentencing proceedings. The
Court has made clear that the Guidelines are to be the
sentencing court’s “starting point and . . . initial bench-
mark.” Gall v. United States, 552 U. S. 38, 49 (2007).
Federal courts understand that they “ ‘must begin their
analysis with the Guidelines and remain cognizant of
them throughout the sentencing process.’ ” Peugh, 569
U. S., at ___ (slip op., at 10). The Guidelines are “the
framework for sentencing” and “anchor . . . the district
court’s discretion.” Id., at ___, ___ (slip op., at 11, 18)
“Even if the sentencing judge sees a reason to vary from
the Guidelines, ‘if the judge uses the sentencing range as
the beginning point to explain the decision to deviate from
it, then the Guidelines are in a real sense the basis for the
sentence.’ ” Id., at ___ (slip op., at 11).
The Guidelines’ central role in sentencing means that
an error related to the Guidelines can be particularly
serious. A district court that “improperly calculat[es]” a
defendant’s Guidelines range, for example, has committed
a “significant procedural error.” Gall, supra, at 51. That
same principle explains the Court’s ruling that a “retro-
spective increase in the Guidelines range applicable to a
defendant creates a sufficient risk of a higher sentence to
10 MOLINA-MARTINEZ v. UNITED STATES
Opinion of the Court
constitute an ex post facto violation.” Peugh, 569 U. S., at
___ (slip op., at 13).
The Commission’s statistics demonstrate the real and
pervasive effect the Guidelines have on sentencing.
In most cases district courts continue to impose “either
within-Guidelines sentences or sentences that depart
downward from the Guidelines on the Government’s
motion.” Id., at ___ (slip op., at 12); see USSC, 2014
Annual Report and 2014 Sourcebook of Federal Sen-
tencing Statistics S–50 (19th ed.) (Table N) (2014 Source-
book). In less than 20% of cases since 2007 have district
courts “imposed above- or below-Guidelines sentences
absent a Government motion.” Peugh, supra, at ___–___
(slip op., at 12–13); see also 2011 Annual Report and 2011
Sourcebook of Federal Sentencing Statistics 63 (16th ed.)
(Figure G); 2015 Annual Report and 2015 Sourcebook of
Federal Sentencing Statistics (20th ed.) (Figure G), on-
line at http://www.ussc.gov/sites/default/files/pdf/research-
and - publications / annual - reports - and - sourcebooks / 2015/
FigureG.pdf (as last visited Apr. 15, 2016). As the Court
has recognized, “when a Guidelines range moves up or
down, offenders’ sentences [tend to] move with it.” Peugh,
supra, at ___ (slip op., at 13); USSC, Final Quarterly Data
Report, FY 2014, pp. 32–37 (Figures C to H). These reali-
ties have led the Court to observe that there is “consider-
able empirical evidence indicating that the Sentencing
Guidelines have the intended effect of influencing the
sentences imposed by judges.” Peugh, supra, at ___ (slip
op., at 12).
These sources confirm that the Guidelines are not only
the starting point for most federal sentencing proceedings
but also the lodestar. The Guidelines inform and instruct
the district court’s determination of an appropriate sen-
tence. In the usual case, then, the systemic function of the
selected Guidelines range will affect the sentence. This
fact is essential to the application of Rule 52(b) to a Guide-
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Opinion of the Court
lines error. From the centrality of the Guidelines in the
sentencing process it must follow that, when a defendant
shows that the district court used an incorrect range, he
should not be barred from relief on appeal simply because
there is no other evidence that the sentencing outcome
would have been different had the correct range been
used.
In most cases a defendant who has shown that the
district court mistakenly deemed applicable an incorrect,
higher Guidelines range has demonstrated a reasonable
probability of a different outcome. And, again in most
cases, that will suffice for relief if the other requirements
of Rule 52(b) are met. There may be instances when,
despite application of an erroneous Guidelines range, a
reasonable probability of prejudice does not exist. The
sentencing process is particular to each defendant, of
course, and a reviewing court must consider the facts and
circumstances of the case before it. See United States v.
Davila, 569 U. S. ___, ___ (2013) (slip op., at 13) (“Our
essential point is that particular facts and circumstances
matter”). The record in a case may show, for example,
that the district court thought the sentence it chose was
appropriate irrespective of the Guidelines range. Judges
may find that some cases merit a detailed explanation of
the reasons the selected sentence is appropriate. And that
explanation could make it clear that the judge based the
sentence he or she selected on factors independent of the
Guidelines. The Government remains free to “poin[t] to
parts of the record”—including relevant statements by the
judge—“to counter any ostensible showing of prejudice the
defendant may make.” United States v. Vonn, 535 U. S.
55, 68 (2002). Where, however, the record is silent as to
what the district court might have done had it considered
the correct Guidelines range, the court’s reliance on an
incorrect range in most instances will suffice to show an
effect on the defendant’s substantial rights. Indeed, in the
12 MOLINA-MARTINEZ v. UNITED STATES
Opinion of the Court
ordinary case a defendant will satisfy his burden to show
prejudice by pointing to the application of an incorrect,
higher Guidelines range and the sentence he received
thereunder. Absent unusual circumstances, he will not be
required to show more.
The Court of Appeals’ rule to the contrary fails to take
account of the dynamics of federal sentencing. In a signif-
icant number of cases the sentenced defendant will lack
the additional evidence the Court of Appeals’ rule would
require, for sentencing judges often say little about the
degree to which the Guidelines influenced their determi-
nation. District courts, as a matter of course, use the
Guidelines range to instruct them regarding the appropri-
ate balance of the relevant federal sentencing factors.
This Court has told judges that they need not provide
extensive explanations for within-Guidelines sentences
because “[c]ircumstances may well make clear that the
judge rests his decision upon the Commission’s own rea-
soning.” Rita, 551 U. S., at 356–357. In these situations,
reviewing courts may presume that a sentence imposed
within a properly calculated Guidelines range is reason-
able. Id., at 341. As a result, the cases where the Guide-
lines are most likely to have influenced the district court’s
sentencing decision—those where the court chose a sen-
tence within what it believed to be the applicable Guide-
lines range—are also the cases least likely to provide the
defendant with evidence of the Guidelines’ influence be-
yond the sentence itself. The defendants in these cases
should not be prevented by a categorical rule from estab-
lishing on appeal that there is a reasonable probability the
Guidelines range applied by the sentencing court had an
effect on their within-Guidelines sentence.
B
This case illustrates the unworkable nature of the Court
of Appeals’ additional evidence rule. Here the court held
Cite as: 578 U. S. ____ (2016) 13
Opinion of the Court
that Molina-Martinez could not establish an effect on his
substantial rights. Yet the record points to a different
conclusion. The District Court said nothing specific about
why it chose the sentence it imposed. It merely “adopt[ed]
the . . . guideline applications in the presentence investi-
gation report,” App. 33, which set the range at 77 to 96
months; rejected the Government’s argument for a sen-
tence at the top of the Guidelines range; and agreed with
the defendant’s request for, and the Probation Office’s
recommendation of, a sentence at the bottom of the range.
As intended, the Guidelines served as the starting point
for the sentencing and were the focal point for the proceed-
ings that followed.
The 77-month sentence the District Court selected is
conspicuous for its position as the lowest sentence within
what the District Court believed to be the applicable
range. As Molina-Martinez explained to the Court of
Appeals, the District Court’s selection of a sentence at the
bottom of the range, despite the Government’s request for
the maximum Guidelines sentence, “evinced an intention
. . . to give the minimum recommended by the Guidelines.”
Brief for Appellant in No. 13–40324 (CA5), p. 18. The
District Court said nothing to suggest that it would have
imposed a 77-month sentence regardless of the Guidelines
range. Given these circumstances, there is at least a
reasonable probability that the District Court would have
imposed a different sentence had it known that 70 months
was in fact the lowest sentence the Commission deemed
appropriate.
IV
The Government contends that permitting a defendant
to establish prejudice through the fact of a Guidelines
error alone eliminates the main difference between Rules
52(a) and 52(b)—which party must prove whether the
complained-of error had an effect. Brief for United States
14 MOLINA-MARTINEZ v. UNITED STATES
Opinion of the Court
21. As noted, Rule 52(a) states: “Any error, defect, irregu-
larity, or variance that does not affect substantial rights
must be disregarded.” When a defendant makes a timely
objection, the Government can rely on Rule 52(a) to argue
that the error does not warrant correction because it was
harmless. Although Rules 52(a) and (b) both require an
inquiry into whether the complained-of error was prejudi-
cial, there is “ ‘one important difference’ ” between the
subparts—under (b), but not (a), “ ‘[i]t is the defendant
rather than the Government who bears the burden of
persuasion with respect to prejudice.’ ” Brief for United
States 18 (quoting Olano, 507 U. S., at 734). In the Gov-
ernment’s view, ruling for Molina-Martinez will require
the Government to prove the harmlessness of every Guide-
lines error raised on appeal regardless of whether it was
preserved. Brief for United States 27–28.
The holding here does not lead to that result. The deci-
sion today simply states that courts reviewing sentencing
errors cannot apply a categorical rule requiring additional
evidence in cases, like this one, where the district court
applied an incorrect range but nevertheless sentenced the
defendant within the correct range. Rejection of that rule
means only that a defendant can rely on the application of
an incorrect Guidelines range to show an effect on his
substantial rights.
The Government expresses concern over the judicial
resources needed for the resentencing proceedings that
might result from the Court’s holding. It is doubtful to-
day’s holding will result in much of an increased burden.
As already noted, today’s holding is consistent with the
approach taken by most Courts of Appeals. See, e.g.,
Sabillon-Umana, 772 F. 3d, at 1333 (collecting cases). Yet
only a small fraction of cases are remanded for resentenc-
ing because of Guidelines related errors. See 2014
Sourcebook S–6, S–153 (Tables 2 and 62) (of the roughly
75,000 cases sentenced in 2014, only 620 resulted in a
Cite as: 578 U. S. ____ (2016) 15
Opinion of the Court
remand for resentencing because of a statutory or Guide-
lines related error). Under the Olano framework, appel-
late courts retain broad discretion in determining whether
a remand for resentencing is necessary. Courts have, for
example, developed mechanisms short of a full remand to
determine whether a district court in fact would have
imposed a different sentence absent the error. See, e.g.,
United States v. Currie, 739 F. 3d 960, 967 (CA7 2014)
(ordering “limited remand so that the district judge [could]
consider, and state on the record, whether she would have
imposed the same sentence . . . knowing that [the defend-
ant] was subject to a five-year rather than a ten-year
statutory minimum term of imprisonment”). And even
when a Court of Appeals does decide that resentencing is
appropriate, “a remand for resentencing, while not cost-
less, does not invoke the same difficulties as a remand for
retrial does.” United States v. Wernick, 691 F. 3d 108,
117–118 (CA2 2012); see also Sabillon-Umana, supra, at
1334 (noting that the “cost of correction is . . . small” be-
cause “[a] remand for sentencing . . . doesn’t require that a
defendant be released or retried”). The Government’s
concern about additional, burdensome procedures appears
unfounded, and, in any event, does not warrant reading
into Rule 52(b) a requirement that does not exist.
* * *
In the ordinary case the Guidelines accomplish their
purpose. They serve as the starting point for the district
court’s decision and anchor the court’s discretion in select-
ing an appropriate sentence. It follows, then, that in most
cases the Guidelines range will affect the sentence. When
that is so, a defendant sentenced under an incorrect
Guidelines range should be able to rely on that fact to
show a reasonable probability that the district court would
have imposed a different sentence under the correct range.
That probability is all that is needed to establish an effect
on substantial rights for purposes of obtaining relief under
16 MOLINA-MARTINEZ v. UNITED STATES
Opinion of the Court
Rule 52(b).
The contrary judgment of the Court of Appeals for the
Fifth Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Cite as: 578 U. S. ____ (2016) 1
Opinion of ALITO, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–8913
_________________
SAUL MOLINA-MARTINEZ, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[April 20, 2016]
JUSTICE ALITO, with whom JUSTICE THOMAS joins,
concurring in part and concurring in the judgment.
I agree with the Court that the Fifth Circuit’s rigid
approach to unpreserved Guidelines errors is incorrect.
And I agree that petitioner has shown a reasonable proba-
bility that the District Court would have imposed a differ-
ent sentence in his case if his recommended Guidelines
sentence had been accurately calculated. Unlike the
Court, however, I would not speculate about how often the
reasonable probability test will be satisfied in future cases.
The Court’s predictions in dicta about how plain-error
review will play out are predicated on the view that sen-
tencing judges will continue to rely very heavily on the
Guidelines in the future, but that prediction may not turn
out to be accurate. We should not make predictions about
the future effects of Guidelines errors, particularly since
some may misunderstand those predictions as veiled
directives.
I
“ ‘No procedural principle is more familiar to this Court
than that a constitutional right,’ or a right of any other
sort, ‘may be forfeited in criminal as well as civil cases by
the failure to make timely assertion of the right before the
tribunal having jurisdiction to determine it.’ ” United
2 MOLINA-MARTINEZ v. UNITED STATES
Opinion of ALITO, J.
States v. Olano, 507 U. S. 725, 731 (1993) (quoting Yakus
v. United States, 321 U. S. 414, 444 (1944)). Consistent
with this principle, Rule 52 of the Federal Rules of Crimi-
nal Procedure treats defendants who preserve their claims
much more favorably than those who fail to register a
timely objection. When the defendant has made a timely
objection to an error, the Government generally bears the
burden of showing that the error was harmless. Olano,
507 U. S., at 734. By contrast, when a defendant has
failed to make a timely objection, “[i]t is the defendant
rather than the Government who bears the burden of
persuasion with respect to prejudice.” Ibid.; see also id.,
at 741–742 (KENNEDY, J., concurring).
This framework applies to errors in the calculation of an
advisory Guidelines sentence. If the defendant does not
call the error to the attention of the sentencing judge, the
defendant may obtain relief on appeal only if he or she
proves that the error was prejudicial—specifically, that
there is a “reasonable probability” that, but for the error,
the sentence would have been different. United States v.
Dominguez Benitez, 542 U. S. 74, 81–83 (2004). Meeting
this burden “should not be too easy for defendants.” Id., at
82. Instead, the standard should be robust enough to
“enforce the policies that underpin Rule 52(b) generally, to
encourage timely objections and reduce wasteful reversals
by demanding strenuous exertion to get relief for unpre-
served error.” Ibid. By placing this burden on the defend-
ant, Rule 52(b) compels defense counsel to devote careful
attention to the potential complexities of the Guidelines at
sentencing, thus providing the district court—which “is
ordinarily in the best position to determine the relevant
facts and adjudicate the dispute”—with “the opportunity
to consider and resolve” any objections. Puckett v. United
States, 556 U. S. 129, 134 (2009); see also ibid.
(“[A]ppellate-court authority to remedy” unpreserved
errors “is strictly circumscribed” in order to “induce the
Cite as: 578 U. S. ____ (2016) 3
Opinion of ALITO, J.
timely raising of claims and objections”); United States v.
Vonn, 535 U. S. 55, 73 (2002) (“[T]he value of finality
requires defense counsel to be on his toes, not just the
judge, and the defendant who just sits there when a mis-
take can be fixed cannot just sit there when he speaks up
later on”); Olano, supra, at 742–743 (KENNEDY, J., concur-
ring) (“[T]he operation of Rule 52(b) does not permit a
party to withhold an objection . . . and then to demand
automatic reversal”).
Whether a defendant can show a “reasonable probabil-
ity” of a different sentence depends on the “particular facts
and circumstances” of each case. United States v. Davila,
569 U. S. ___, ___–___ (2013) (slip op., at 13–14). “We
have previously warned against courts’ determining
whether an error is harmless through the use of manda-
tory presumptions and rigid rules rather than case-specific
application of judgment, based upon examination of the
record.” Shinseki v. Sanders, 556 U. S. 396, 407 (2009)
(citing Kotteakos v. United States, 328 U. S. 750, 760
(1946)). Instead of relying on presumptions, a court of
appeals must “engage in [a] full-record assessment” to
determine whether a defendant who forfeited a claim of
Guidelines error has met his case-specific burden of show-
ing of prejudice. Davila, supra, at ___ (slip op., at 14).
The answer may be affected by a variety of factors, includ-
ing any direct evidence, the nature and magnitude of the
error, the sentencing judge’s view of the Guidelines,1 the
——————
1 See, e.g., United States Sentencing Commission, Report on the Con-
tinuing Impact of United States v. Booker on Federal Sentencing 3
(2012) (Booker Report) (“[T]he Commission’s analysis of individual
judge data showed that the identity of the judge has played an increas-
ingly important role in the sentencing outcomes in many districts”);
Bowman, Dead Law Walking: The Surprising Tenacity of the Federal
Sentencing Guidelines, 51 Houston L. Rev. 1227, 1266 (2014) (“Inter-
Judge Disparity Has . . . Increased Since Booker”); Scott, Inter-Judge
Sentencing Disparity After Booker: A First Look, 63 Stan. L. Rev. 1, 30
(2010) (“[I]n their guideline sentencing patterns, judges have responded
4 MOLINA-MARTINEZ v. UNITED STATES
Opinion of ALITO, J.
approach of the circuit in question,2 and the particular
crime at issue.3
Under the specific circumstances here, Molina-Martinez
met his burden. As the Court points out, Molina-Martinez
demonstrated that the Guidelines “were the focal point for
the proceedings”; that “[t]he 77-month sentence the Dis-
trict Court selected is conspicuous for its position as the
lowest sentence within what the District Court believed to
be the applicable range”; and that “the District Court’s
selection of a sentence at the bottom of the range, despite
the Government’s request for the maximum Guidelines
sentence, ‘evinced an intention . . . to give the minimum
recommended by the Guidelines.’ ” Ante, at 13. This
evidence establishes a “reasonable probability that the
District Court would have imposed a different sentence
had it known that 70 months was in fact the lowest sen-
tence the Commission deemed appropriate.” Ibid.
In concluding otherwise, the Fifth Circuit applied exactly
the sort of strict, categorical rule against which we have
warned. Under the Fifth Circuit’s approach, Molina-
Martinez could not satisfy his burden with circumstantial
evidence regarding the parties’ sentencing arguments or
the District Court’s selection of a sentence at the very
bottom of the range. See 588 Fed. Appx. 333, 335 (CA5
——————
in starkly different ways to Booker, with some following a ‘free at last’
pattern and others a ‘business as usual’ pattern”).
2 See, e.g., Booker Report 6 (“The influence of the guidelines . . . has
varied by circuit”); Bowman, supra, at 1261 (“Different Districts Have
Had Very Different Post-Booker Experiences”); Yang, Have Interjudge
Sentencing Disparities Increased in an Advisory Guidelines Regime?
Evidence from Booker, 89 N. Y. U. L. Rev. 1268, 1277, 1319–1323
(2014) (presenting “evidence of substantial interdistrict differences in
sentencing outcomes”).
3 See, e.g., Booker Report 5 (“The influence of the guidelines . . . has
generally remained stable in drug trafficking, firearms, and immigra-
tion offenses, but has diminished in fraud and child pornography
offenses”).
Cite as: 578 U. S. ____ (2016) 5
Opinion of ALITO, J.
2014) (per curiam). Rather, the Fifth Circuit would re-
quire a defendant to produce direct evidence, such as an
“explicit statement suggesting that the Guidelines range
was a primary factor in sentencing.” Ibid. But there is no
good reason to preclude defendants from showing preju-
dice via the type of circumstantial evidence at issue here.
As this case illustrates, the manner in which a district
court applies an incorrect Guidelines range can itself serve
as evidence of an effect on substantial rights. I thus con-
cur in the Court’s opinion insofar as it rejects the Fifth
Circuit’s misguided approach and finds that Molina-
Martinez demonstrated a reasonable probability of a
different sentence absent the Guidelines error.
II
I cannot, however, join the Court’s dicta speculating
that “most” defendants who forfeit a Guidelines error will
be able to show a reasonable probability of prejudice.
Ante, at 9, 11, 15. Things may turn out that way, but I see
no reason to prejudge an empirical question that is unnec-
essary to our decision in this case and that will be worked
out by the lower courts on a case-by-case basis.4
——————
4 Some of the Court’s dicta could perhaps be interpreted not as predic-
tions, but as instructions to lower courts to side with the forfeiting
defendant unless the Government can point to “unusual circum-
stances.” See ante, at 11–12 (“[I]n the ordinary case a defendant will
satisfy his burden to show prejudice by pointing to the application of an
incorrect, higher Guidelines range and the sentence he received there-
under. Absent unusual circumstances, he will not be required to show
more”). For several reasons, however, I do not think the opinion can be
fairly viewed as requiring such a result. First, the Court makes clear
that today’s decision does not shift the burden of persuasion from a
forfeiting defendant to the Government. See ante, at 14 (Under Rule
52(b), “ ‘[i]t is the defendant rather than the Government who bears the
burden of persuasion with respect to prejudice,’ ” and “[t]he holding
here does not” shift the burden). Second, the opinion acknowledges
that a “court’s reliance on an incorrect range” will not always “suffice to
show an effect on the defendant’s substantial rights”—even where “the
6 MOLINA-MARTINEZ v. UNITED STATES
Opinion of ALITO, J.
The Court’s proclamations about what will occur in
“most” cases are based on Sentencing Commission statis-
tics indicating that the Guidelines tend to influence sen-
tences. See ante, at 10. Perhaps these statistics are pro-
bative of the Guidelines’ current impact on sentencing.
But they provide an unstable and shifting basis for the
Court’s prophecies about the future. The Guidelines are
now entirely advisory, see United States v. Booker, 543
U. S. 220, 245 (2005), and in time the lower courts may
increasingly drift away from the Guidelines and back
toward the sentencing regime that prevailed prior to their
issuance.5 As circumstances change, and as judges who
——————
record is silent as to what the district court might have done had it
considered the correct Guidelines range.” Ante, at 11. It follows that
even where the Government fails to identify any direct evidence of
harmlessness, the defendant cannot automatically satisfy his burden
simply by pointing to the application of an incorrect Guidelines range.
Instead of employing a strict presumption against the Government, the
Court emphasizes, “a reviewing court must consider the facts and
circumstances of the case before it.” Ibid.; see also ibid. (“ ‘Our essen-
tial point is that particular facts and circumstances matter’ ” (quoting
United States v. Davila, 569 U. S. ___, ___ (2013) (slip op., at 13))).
Given these caveats, I do not read the Court’s opinion as replacing the
Fifth Circuit’s inflexible pro-Government presumption with an equally
inflexible pro-defendant presumption. Rather, I take the Court at its
word: “The decision today simply states that courts reviewing sentenc-
ing errors cannot apply a categorical rule requiring additional evidence
in cases, like this one, where the district court applied an incorrect
range but nevertheless sentenced the defendant within the correct
range.” Ante, at 14.
5 See, e.g., Assessing Booker and Its Aftermath, Practice Under the
Federal Sentencing Guidelines §1.02(C)(1), pp. 1–14 to 1–16 (D. Debold
ed., 5th ed. 2016) (Debold) (“Since the first weeks after Booker, district
courts have been engaged in a dynamic debate over the precise weight
to be given the now advisory Guidelines,” and “there are reasons to
expect continued evolution in sentencing norms”); id., §1.02(C)(2)
(“[D]istrict courts can be expected to continue to test the boundaries of
their discretion. . . . Accordingly, while it is clear that district courts
now enjoy more discretion at sentencing, the proper bounds of that
discretion will continue to be explored”).
Cite as: 578 U. S. ____ (2016) 7
Opinion of ALITO, J.
spent decades applying mandatory Guidelines ranges are
replaced with new judges less wedded to the Guidelines,
the statistics underlying the Court’s forecasts may change
dramatically.6 Because I cannot join the Court’s question-
able predictions, I concur only in part and in the judgment.
——————
6 See, e.g., Yang, 89 N. Y. U. L. Rev., at 1277 (finding that “Judges
who have no prior experience sentencing under the mandatory Guide-
lines regime are more likely to depart from the Guidelines-
recommended range than their pre-Booker counterparts, suggesting
that newer judges are less anchored to the Guidelines”); id., at 1318–
1319 (“The ‘anchor’ effect of the Guidelines sentence may be more
prominent for pre-Booker appointees because these judges are more
acculturated to and experienced with constraining their sentences to
the dictates of the Guidelines. In contrast, the ‘anchor’ effect is less
prominent for post-Booker appointees. These potential anchoring
differences . . . may ‘increase as the years go by and the bench is filled
with individuals who have no history with binding guidelines’ ”); see
also, e.g., Debold §1.02(C)(1), at 1–16 (“Sentencing judges, particularly
more recent appointees, are also growing increasingly skeptical of the
Guidelines as they become more comfortable viewing the Guidelines as
advice and look deeper into the reasoning supporting (or failing to
support) the Guidelines’ recommendations”); Gertner, Supporting
Advisory Guidelines, 3 Harv. L. & Pol’y Rev. 261, 270 (2009) (describing
continued Guideline sentencing as the result of “the habits ingrained
during twenty years of mandatory Guideline sentencing”); Stith, The
Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discre-
tion, 117 Yale L. J. 1420, 1496–1497 (2008) (“[A]s a new generation of
prosecutors and judges enters into service, the pendulum may swing
back toward the local exercise of informed discretion, if Booker lasts
that long. But incumbent sentencing decision makers may be reluctant
to regard as unreasonable the sentences they were obliged to seek and
impose for two decades under the command and the conceit of law”).