The Bostic question.

Author:Bridge, Charles C.
Position:Federal district court sentencing procedural rule


Federal criminal procedure regularly struggles with a tension between fairness and finality. The Constitution provides defendants with special privileges and protections designed to prevent injustice, (1) but systemic concerns about efficiency, comity, and finality make it impossible to guarantee a perfect and errorless trial to every defendant. (2) Given the impossibility of perfection, and the tremendous burden associated with carefully scrutinizing each page of each trial transcript, appellate courts rely on defendants to flag possible errors as they arise. One manifestation of that reliance is the fact that the rigor of appellate review often depends on whether the defendant-appellant objected to the purported error at trial. (3)

In United States v. Bostic, (4) the Sixth Circuit, aiming to facilitate appellate review of sentencing, adopted a prudent procedural rule: the "Bostic Question" ("the Question"). (5) Invoking its "supervisory powers over the district courts," the court of appeals issued the following instructions:

[D]istrict courts, after pronouncing the defendant's sentence but before adjourning the sentencing hearing, [must] ask the parties whether they have any objections to the sentence just pronounced that have not previously been raised. If the district court fails to provide the parties with this opportunity, they will not have forfeited their objections and thus will not be required to demonstrate plain error on appeal. If a party does not clearly articulate any objection and the grounds upon which the objection is based, when given this final opportunity to speak, then that party will have forfeited its opportunity to make any objections not previously raised and thus will face plain error review on appeal. (6) The Sixth Circuit explained that the Question would serve at least two purposes: (1) "permitting the district court to correct on the spot any error it may have made," and (2) "guiding appellate review" of the sentence imposed. (7)

This Comment endorses these rationales and also draws attention to a third justification, heretofore unrecognized. The Question promotes what Lani Guiltier and Gerald Torres have called "demosprudence"--that is, "a democracy-enhancing jurisprudence" grounded not only in "logical reasoning [and] legal principles" but also in a need to "inform and [be] informed by the wisdom of the people." (8) It does so by inviting oral objections to, and public dialogue about, the sentence imposed by the district court. Further, it tends to "expand the audience for judicial decisionmaking and to engage that audience in democratic deliberation" about criminal law and procedure. (9)

This Comment aspires to persuade all federal courts of appeals to adopt the Bostic Question as a requirement for the district courts under their supervision. Part I explains why standards of appellate review have become important in the sentencing context and why, as a result, the Question is necessary. Part II first articulates reasons why courts have been reluctant to follow the Sixth Circuit's lead and then proceeds to a two-part normative case for the Bostic Question: the Question is sound judicial policy that produces real benefits at a minimal cost, and it has the potential to advance demosprudential values.


    Federal criminal appeals usually fail, (10) especially when the reviewing court applies plain-error review, or a similarly deferential standard. (11) The standard of review, some judges have stated, "is everything," and it "more often than not determines the outcome." (12) On plain-error review, in the Seventh Circuit's words, a decision is reversible only if it "strike[s] [the court] as wrong with the force of a five-week-old, unrefrigerated dead fish." (13)

    The scope of appellate deference has evolved in the decade since United States v. Booker. (14) Before Booker, the statutory Sentencing Guidelines were mandatory, and departures from the Guidelines were reviewed de novo on appeal. (15) But Booker shifted power from prosecutors to judges, (16) rendering the Guidelines advisory and affording district courts more discretion to depart from Congress's recommendations. Today, if a defendant timely objects to an error, the standard on appeal is clear: "reasonableness," a standard essentially coextensive with "abuse of discretion." (17) But if the defendant fails to object, or objects only indistinctly, courts of appeals apply plain-error review to those "unpreserved" claims of error--that is, alleged errors to which the defendant did not make a contemporaneous objection at trial. (18) In the particular context of sentencing, some disparity persists, but there is an emerging consensus. (19) Unpreserved procedural reasonableness claims receive only plain-error review, (20) while substantive reasonableness claims, even if unpreserved, are reviewed through the same abuse-of-discretion lens as preserved claims. (21)

    In the sentencing context, it is increasingly critical to scrutinize these standards of review. After all, in the twenty-first century, American criminal justice is "a world of guilty pleas, not trials." (22) The vast majority of federal prosecutions end in guilty pleas, and therefore the vast majority of defendants appear in open court only for sentencing before a judge--never a jury of their peers. (23) Judges are under no obligation to follow whatever sentencing recommendation the government and defendant may have agreed upon, (24) and so even defendants who are pleading guilty in exchange for sentencing considerations are exposed to the possibility of judicial error.

    When broad judicial discretion is combined with the requirement to lodge objections to preserve errors for appeal, odd situations can arise. Consider a normal federal sentencing hearing. The prosecution and the defense have assembled the Presentence Report; the attorneys have offered their final oral arguments; and the district court, after deliberation and with solemn gravitas, has announced the defendant's sentence. Haggling with a judge after a ruling is rarely a wise lawyering choice, and yet in this context any competent defense attorney would promptly object. (25) Thus, objecting to a freshly imposed sentence is both obligatory and awkward. (26) Enter the Bostic Question.


    The Tenth and D.C. Circuits have dismissed the Bostic Question as "gratuitous superintendence"--unnecessary procedural handholding for lawyers whom the legal system assumes to be "competent professionals." (27) But these courts' opposition is misguided. As I argue in this Part, the Question has two principal virtues. First, it facilitates efficient, informed, and accurate appellate review, which improves the fairness and finality of criminal sentences. Second, it has the heretofore unrecognized potential to advance demosprudential values and help to create a sentencing regime that emerges from a dialogue involving not only legal elites but also the people and their elected representatives.

    1. The Bostic Question and Its Critics

      The Bostic Question, in large part, responds to the awkward situation described at the end of Part I. (28) In Bostic, the Sixth Circuit noted that the Federal Rules do not penalize a claim with plain-error appellate review if the appellant had "no opportunity" to object below. (29) Thus, the court decided it would be prudent to require district courts affirmatively to invite objections after pronouncing a sentence. (30) This rule, the court said, would save appellate courts from "the difficulty of parsing a transcript" to determine whether each party had been afforded "a meaningful opportunity to object." (31) The rule would also "serve the dual purposes of permitting the district court to correct on the spot any error it may have made and of guiding appellate review." (32)

      The Sixth Circuit borrowed the idea for the Bostic Question from the Eleventh Circuit. (33) That court has similarly praised the Question's ability to facilitate appellate review by eliciting "fully articulated objections" and to give the district court an opportunity to correct errors on the spot. (34) But other courts, regrettably, have been reluctant to follow suit. Some have offered a lukewarm endorsement of the Question but have declined to require it. (35) Others have rejected it outright. (36) The Tenth Circuit, for example, directly rejected the idea: "Competent professionals do not require such gratuitous superintendence; as long as there is a fair opportunity to register an objection, ask for an explanation or request factual findings, counsel must take the initiative thereby [e]nsuring that silence is not mistaken for acceptance." (37)

      The Tenth Circuit's concern appears to underlie the misgivings of the other courts that have rejected the Question. (38) There is such a thing as too much handholding, the argument goes, and district courts should not have to bear an additional burden on top of the "numerous requirements" that...

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