United States v. Jose Escalante-Reyes

JONES, Chief Judge, and EDITH BROWN CLEMENT, Circuit Judge, and joined as to parts LA, I.B, and I.D by EMILIO M. GARZA, Circuit Judge:

I respectfully dissent. For the first time ever, this court reverses a below-guideline sentence for alleged unfairness. And for at least the 181st time, it reverses a case on plain error, despite the Supreme Court’s admonition that such reversals should be “rare,” giving an en banc blessing to our rogue record of finding the fourth prong satisfied in over 70% of the reported cases.

The Tapia error1 fails to meet both the second and fourth prongs of plain-error…