Plain error in sentencing need not be remedied if it does not seriously affect fairness, integrity, or reputation of judicial proceedings

SENTENCING United States v. Franklin-El, No. 07-3257, ___ F.3d ___ (10th Cir. Feb. 3, 2009)(Kansas). Appeal of convictions and sentence for healthcare fraud and obstruction of justice in violation of 18 U.S.C. § 1347, and 18 U.S.C. § 1518(a). HELD: District court committed plain error by applying sentencing principles no longer in effect at time defendant was sentenced. Nevertheless, court of appeals will not exercise discretion to correct error in this instance because defendant fails to show that error seriously affects fairness, integrity, or public reputation of judicial proceedings for the following reasons: (1) defendant makes no specific claim of Booker error; (2) sufficient evidence supports counts of conviction and sentence was substantively reasonable; (3) there is no indication sentence is insufficiently supported by evidence; (4) record shows district court considered sentencing factors of 18 U.S.C. § 3553(a) and defendant fails to show that further consideration of § 3553(a) factors warrants variance; and (6) judge’s comments from bench did not establish that judge would impose significantly lighter sentence on remand. Read the opinion here.