The Supreme Court granted the petition in Hicks v. United States, No. 16-7806, vacated the judgment, and remanded the case for further consideration in the Fifth Circuit based on the government’s confession of error that the defendant, sentenced after the Fair Sentencing Act (FSA), had been wrongly subject to the pre-FSA mandatory minimum of 20 years. The government agreed that Hicks meets the first two prongs of plain error standard (error, plain). The Court remanded to the Fifth Circuit to decide whether Hicks meets the third and fourth prongs (affects the defendant’s substantial rights, and implicate the fairness, integrity, or public reputation of judicial proceedings).
Justice Gorsuch concurred, making some notable observations about the merits of these prongs. "A plain legal error infects this judgment—a man was wrongly sentenced to 20 years in prison under a defunct statute. No doubt, too, there’s a reasonable probability that cleansing this error will yield a different outcome. Of course, Mr. Hicks’s conviction won’t be undone, but the sentencing component of the district court’s judgment is likely to change, and change substantially. For experience surely teaches that a defendant entitled to a sentence consistent with 18 U. S. C. § 3553(a)’s parsimony provision, rather than pursuant to the rigors of a statutory mandatory minimum, will often receive a much lower sentence. So there can be little doubt Mr. Hicks’s substantial rights are, indeed, implicated. Cf. Molina-Martinez v. United States, 578 U. S. ___, ___ (2016). When it comes to the fourth prong of plain error review, it’s clear Mr. Hicks also enjoys a reasonable probability of success. For who wouldn’t hold a rightly diminished view of our courts if we allowed individuals to linger longer in prison than the law requires only because we were unwilling to correct our own obvious mistakes?"
Chief Justice Roberts, joined by Justice Thomas, dissented.
Click here for the per curiam order.