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`1
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` Cite as: 582 U. S. ____ (2017)
`
` GORSUCH, J., concurring
`
`
`SUPREME COURT OF THE UNITED STATES
`
` MARCUS DESHAW HICKS v. UNITED STATES
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`
`STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
`
`
` No. 16–7806. Decided June 26, 2017
`
`The motion of petitioner for leave to proceed in forma
`
`
`pauperis and the petition for a writ of certiorari are granted.
`
`The judgment is vacated, and the case is remanded to
`
`the United States Court of Appeals for the Fifth Circuit for
`further consideration in light of the position asserted by
`the Acting Solicitor General in his brief for the United
`States filed on May 1, 2017.
`JUSTICE GORSUCH, concurring.
`
`Everyone agrees that Mr. Hicks was wrongly sentenced
`
`to a 20-year mandatory minimum sentence under a now-
`defunct statute. True, Mr. Hicks didn’t argue the point in
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`the court of appeals. But before us the government admits
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`
`his sentence is plainly wrong as a matter of law, and it’s
`simple enough to see the government is right. Of course,
`to undo and revise a sentence under the plain error stand-
`ard, a court must not only (1) discern an error, that error
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`must (2) be plain, (3) affect the defendant’s substantial
`rights, and (4) implicate the fairness, integrity, or public
`reputation of judicial proceedings. United States v. Olano,
`507 U. S. 725, 732 (1993). And while the government
`concedes the first two legal elements of the plain error
`test, it asks us to remand the case to the court of appeals
`
`for it to resolve the latter two questions in the first
`
`instance.
`I cannot think of a good reason to say no. When this
`
`Court identifies a legal error, it routinely remands the
`case so the court of appeals may resolve whether the error
`was harmless in light of other proof in the case—and so
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`
`

`

`2
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`
`
`
`
`
` HICKS v. UNITED STATES
`
` GORSUCH, J., concurring
`
`
`decide if the judgment must be revised under Federal Rule
`of Criminal Procedure 52(a). After identifying an unpre-
`
`served but plain legal error, this Court likewise routinely
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`remands the case so the court of appeals may resolve
`
`whether the error affected the defendant’s substantial
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`rights and implicated the fairness, integrity, or public
`reputation of judicial proceedings—and so (again) deter-
`mine if the judgment must be revised, this time under
`
`Rule 52(b). We remand in cases like these not only when
`we are certain that curing the error will yield a different
`outcome, but also in cases where we think there’s a rea-
`sonable probability that will happen. See, e.g., Skilling v.
`United States, 561 U. S. 358, 414 (2010) (harmless error);
`
`Tapia v. United States, 564 U. S. 319, 335 (2011) (plain
`
`error); United States v. Marcus, 560 U. S. 258, 266–267
`(2010) (plain error).
`
`
`
`To know this much is to know what should be done in
`our current case. A plain legal error infects this judg-
`ment—a man was wrongly sentenced to 20 years in prison
`under a defunct statute. No doubt, too, there’s a reason-
`
`able probability that cleansing this error will yield a differ-
`
`ent 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 substan-
`tially. 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, impli-
`cated. 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
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`diminished view of our courts if we allowed individuals to
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`linger longer in prison than the law requires only because
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`

`

`
`
`3
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`
`
`
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` Cite as: 582 U. S. ____ (2017)
`
` GORSUCH, J., concurring
`
`
`we were unwilling to correct our own obvious mistakes?
`
` Cf. United States v. Sabillon-Umana, 772 F. 3d 1328, 1333
`(CA10 2014).
`Now this Court has no obligation to rove about looking
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`for errors to correct in every case in this large country, and
`
`I agree with much in Justice Scalia’s dissent in Nunez v.
`
`United States, 554 U. S. 911, 911–913 (2008), suggesting
`caution. For example, it rightly counsels against vacating
`a judgment when we harbor doubts about a confession of
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`error or when the confession bears the marks of games-
`manship. Nor should we take the government’s word for it
`and vacate a judgment when we cannot with ease deter-
`mine the existence of an error of federal law. Or when
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`independent and untainted legal grounds appear to exist
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`
` that would support the judgment anyway. Or when lightly
`accepting a confession of error could lead to a circuit
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` conflict or interfere with the administration of state law.
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`No doubt other reasons too will often counsel against
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` intervening. But, respectfully, I am unaware of any such
`reason here. Besides, if the only remaining objection to
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`vacating the judgment here is that, despite our precedent
`routinely permitting the practice, we should be wary of
`remanding a case without first deciding for ourselves the
`
`latter elements of the plain error test, that task is so
`easily done that in this case that I cannot think why it
`should not be done. Indeed, the lone peril in the present
`case seems to me the possibility that we might permit the
`government to deny someone his liberty longer than the
`law permits only because we refuse to correct an obvious
`judicial error.
`
`
`
`

`

`1
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`
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`Cite as: 582 U. S. ____ (2017)
`
`
` ROBERTS, C. J., dissenting
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
` MARCUS DESHAW HICKS v. UNITED STATES
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`
`
` STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
`
`
`
`
`No. 16–7806. Decided June 26, 2017
`
` CHIEF JUSTICE ROBERTS, with whom JUSTICE THOMAS
`joins, dissenting.
`Petitioner Marcus Deshaw Hicks pleaded guilty to
`
`
`conspiracy to possess with intent to distribute crack co-
`caine in violation of federal law. Between the time Hicks
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`was sentenced for that crime and his direct appeal, this
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`Court decided Dorsey v. United States, 567 U. S. 260
`
`
`(2012), holding that the Fair Sentencing Act applies to
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`defendants like Hicks whose crimes predated the effective
`date of the Act but who were sentenced after that date.
`
`On direct appeal Hicks failed to argue that Dorsey entitled
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`him to a reduced sentence. Presented with no such claim,
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`the Fifth Circuit affirmed. Hicks now seeks certiorari.
`The Government’s response is not to concede that the
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`Fifth Circuit’s judgment was wrong. Rather it is to re-
`quest that this Court vacate that judgment and send the
`case back to the Fifth Circuit so that the Court of Appeals
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`may conduct plain error review. My colleague concurring
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`in this Court’s order “cannot think of a good reason to say
`no.” Ante, at 1 (opinion of GORSUCH, J.). After all, Hicks
`
`
`was “wrongly sentenced to a 20-year mandatory minimum
`sentence under a now-defunct statute.” Ibid. But, as the
`Government itself acknowledges, that gets us past only
`
`the first two prongs of this Court’s four-prong test for
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`plain error: There was an error and the error was plain in
`
`
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`light of Dorsey. See Puckett v. United States, 556 U. S.
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`129, 134–135 (2009). The Government does not contend
`that Hicks also satisfies prongs three and four of the test
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`
`for plain error and that the judgment below rejecting
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`
`
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`
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`
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`

`

`2
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`
`
`
` HICKS v. UNITED STATES
`
` ROBERTS, C. J., dissenting
`
`
`
` Hicks’s claim was therefore wrong. Brief in Opposition
`
`12–13. No matter, says my colleague, because the out-
`come on remand is a no-brainer. But without a determi-
`nation from this Court that the judgment below was
`wrong or at least a concession from the Government to
`
`that effect, we should not, in my view, vacate the Fifth
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`Circuit’s judgment. See Nunez v. United States, 554 U. S.
`
`911 (2008) (Scalia, J., dissenting).
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`
`
`