A Forfeited Argument, Reviewed Nonetheless for Plain Error (Unlike a Waived Argument) Saves the Day for a Criminal Defendant

United States v. Brito, 979 F.3d 185 (3d Cir. 2020). As discussed here, waiver of an argument occurs when a party intentionally relinquishes or abandons a contention, while forfeiture is the failure to assert an argument in timely fashion, without intent to give up that argument. That sometimes esoteric distinction became important in this criminal case, which involved an appeal of the sentence imposed by the District Court.

Judge Bibas summarized well the outlines of this case at the outset of his opinion. “Francisco Brito, a felon, claims that he changed his ways once his daughter was born. But in restating his criminal history, the sentencing judge erroneously implied that his criminal career continued after she was born. That honest factual mistake undermined his argument for leniency. His lawyer did not object, but the error was plain. So we will vacate and remand for resentencing” (emphasis by Judge Bibas).

The defense lawyer’s failure to object was the central fact on this appeal. These were the details. In reciting defendant’s criminal history before imposing sentence, the District Court stated that defendant, who had been in the United States illegally, had been deported three times. In fact, he had been deported only twice. After completing her recitation, the judge asked whether there was “anything incorrect about that statement of the facts here.” Defense counsel responded “I have to be honest, I wasn’t making a time line when the Court was speaking. But if it tracks what’s in the Presentence Report, then, yes, it is.”

Here is where the “waiver vs. forfeiture” distinction came in. Judge Bibas noted that the Third Circuit will “decline to review waived arguments, but we assess forfeited ones for plain error.” Defendant argued that there had been no waiver by virtue of defense counsel’s response to the District Court, but only a forfeiture. The Government argued for waiver.

Assessing “the whole record,” and viewing defense counsel’s statement in its “context,” counsel “never endorsed” the District Court’s mistaken summary, but merely said that if it conformed to the Presentence report, there was no objection. That was forfeiture, not waiver, Judge Bibas said.

That ruling opened the door to plain error review of the sentence. To show plain error, Judge Bibas explained, “Brito must prove that there was an error; that the error was plain; that it prejudiced his substantial rights; and that not correcting the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings. That burden is heavy, but Brito carrie[d] it” (citation omitted).

There was little question that the District Court, though doing “an admirably thorough job at sentencing,” had committed error. There was no doubt that the error was plain. The error “undermined Brito’s case for leniency,” a substantial right, and “struck at the integrity of his sentence.” The panel therefore remanded the matter to see whether “Brito’s case for leniency will carry the day” on a correct sentencing record.