Vanderbilt Law Review

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"I think you ought to object, counselor," boomed the judge.' One could not help but to be taken aback: this instruction was not directed towards a pro se defendant, nor was it addressing an action by an opposing party. Instead, the judge had actually suggested-with a straight face and a hint of irony-that an attorney object to the sentence the judge had just imposed. Unlike the attorney, the judge had been following the development of a quirk in the circuit's sentencing law. In United States v. Vonner, the Sixth Circuit had recently held that a party must object to a sentence while still in the trial court in order to preserve for appeal certain problems with the sentencing order. This sentencing order objection requirement is mandatory even if the party had presented all appropriate arguments earlier during the sentencing hearing (as, indeed, this attorney had done).

This strange occurrence results from the federal courts' struggle to interpret the Supreme Court's recent overhaul of the Federal Sentencing Guidelines, which have long served as the foundation of federal criminal sentences. By deeming the Federal Sentencing Guidelines to be discretionary rather than mandatory, the Supreme Court opened a Pandora's Box for appellate courts reviewing the now-subjective sentences. One of the many resulting procedural questions is the manner in which parties should preserve issues for appeal. A clear circuit split has emerged. Some circuit courts require only that a party argue for

the desired sentence during the sentencing hearing, while other courts require an objection after the judge's sentencing order, regardless of whether the issue has already been raised. The latter group is itself further divided as to which types of error must be noted in the objection.

Valid policy justifications accompany both sides of the circuit split. The circuits that require objections to sentencing orders have recognized that certain procedural problems with the sentence can be easily remedied by the trial court if brought to its attention in time, thus avoiding a lengthy appeal and remand. Even if a party has already argued a point, an objection is a fail-safe way to ensure that the judge correctly considered it. On the other hand, courts that do not require sentencing order objections involving previously argued issues fear creating "a trap for [the] unwary," resulting in the loss of appellate rights for a party who is ignorant of the policy or simply does not immediately recognize a problem during the hearing.

This Note argues that the requirement to object to a judge's sentencing order should be abolished for two fundamental reasons. First, the policy arguments against the requirement are stronger: requiring objections (1) promotes frivolous redundancy, (2) creates a procedural pitfall which could result in unfairly higher sentences, (3) works against judicial economy by leading to collateral claims of ineffective assistance of counsel, and (4) is ultimately unnecessary because prevailing parties already have incentive to perfect the record themselves. Second, and more importantly, the sentencing order objection requirement contradicts Federal Criminal Rules of Procedure 51(a) and (b), the provisions governing the preservation of claimed error.

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