Full opinion text
HAYNES, Circuit Judge, joined by E. GRADY JOLLY, W. EUGENE DAVIS, CARL E. STEWART, DENNIS, PRADO, JENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, GRAVES and HIGGINSON, Circuit Judges: In this case we answer the following question: whether, when the law at the time of trial or plea is unsettled, but becomes clear while the case is pending on appeal, review for the second prong of the “plain error” test properly considers the law as it stood during the district court proceedings (“time of trial”) or at the time of the appellate court’s decision (“time of appeal”). We join the majority of other circuits in answering this question as follows: “time of appeal.” A large majority of us concur that this case presents this question squarely, though perhaps not perfectly. Recognizing the intra- and inter-circuit split on this question, see United States v. Broussard, 669 F.3d 537, 554 (5th Cir.2012), petition for reh’g filed, we determined to hear this case en banc in the first instance to resolve the issue. We turn, then, to the explanation for our decision. I. Analysis of the En Banc Question A. The Text of the Rule We start with the Federal Rules of Criminal Procedure. Rule 51(b) — sometimes called the “contemporaneous objection rule”' — advises that a party “may preserve a claim of error by informing the court” at the time of the action or ruling. Fed.R.Crim.P. 51(b). We reaffirm the importance of the contemporaneous objection rule in the orderly process of trial court matters. But the rules do not make the absence of a contemporaneous objection fatal to the party’s efforts to correct an error on appeal. The very next rule states: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” Fed.R.Crim.P. 52(b). As with any statutory or rule analysis, we start with the text of the rule. Unfortunately, the rule itself gives little assistance as to the question of timing; the first clause speaks to the present: “that affects,” while the last clause uses the past tense of “was.” We conclude that the term “was” does not answer the timing question. Instead, read most naturally, it is simply referring to the fact that the lack of a contemporaneous objection occurred in the past, as it necessarily would by the time an appellate court would receive the case. We cannot read into this use of the past tense a requirement that the error be “plain” at the time of trial. The Government also argues that by using the pronoun “it” in the second clause, the rule is referring to “plain error” in the antecedent clause and means that the error had to be plain at the time of trial. We conclude that a more natural reading of the rule is that “it” refers back to the noun it replaces — “error”—and that the term “it” encompasses the error now under consideration without addressing when it was plain. B. Supreme Court Precedents We turn then to Supreme Court precedent. The Supreme Court has identified four requirements for reversing a trial court based upon plain error review: (1) “there must be an error or defect— some sort of [djeviation from a legal rule— that has not been intentionally relinquished or abandoned”; (2) “the legal error must be clear or obvious, rather than subject to reasonable dispute”; (3) “the error must have affected the appellant’s substantial rights”; and (4) “if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (citation and internal quotation marks omitted and alterations in original). Though it has had opportunities to do so, the Supreme Court has not spoken directly to the timing issue when the law is unsettled at the time of trial but becomes clear by the time of appeal. In United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Supreme Court noted that “plain” is “synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” Id. at 734, 113 S.Ct. 1770. However, the Court specified that it “need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified. At a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.” Id. (emphasis added). Approximately four years after Olano, the Supreme Court decided Johnson, in which it held that “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.” 520 U.S. at 468, 117 S.Ct. 1544. The Court reasoned that it would be futile for a lawyer to object to an “error” that clearly was not an error under the law as it existed at that time. Id. at 467-68, 117 S.Ct. 1544. If objections were required to preserve such an error, counsel would have to make “a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent.” Id. at 468, 117 S.Ct. 1544. Both Olano and Johnson left open the question of when the “plainness” of an error would be evaluated in a situation where the law was unsettled at the time of trial, but was clear at the time of appeal. If the Supreme Court believed this issue to be determined, it would have said so in one of these cases. It did not. C. Circuit Precedents Thus, we turn to our own precedents and those of our sister circuits. As well-stated in Broussard, our own precedents do not speak with one voice. Compare Broussard, 669 F.3d at 554-55 (concluding that where an error is unclear at the time of trial but clear on appeal, the court should apply the law at the time of appeal), with United States v. Henderson, 646 F.3d 223, 225 (5th Cir.2011), (addressing the same issue and stating that the law should be evaluated at the time of trial), cert. granted, — U.S.-, — S.Ct.-, — L.Ed.2d-(U.S. June 25, 2012) (No. 11-9307, 2012 WL 894491). The earliest of our cases to interpret Olano held that plain error is to be evaluated at the time of appeal. See United States v. Knowles, 29 F.3d 947, 951 (5th Cir.1994) (“It is of no consequence that [the appellate case that clarified the law] was decided after the proceedings in the district court concluded. Since this case is on direct appeal, newly announced rules apply.”) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). Broussard resolved the issue by following Knowles, as it is the earlier opinion on this issue. Broussard, 669 F.3d at 554-55; see also United States v. Hudson, 457 Fed.Appx. 417, 419-20 (5th Cir.2012) (per curiam) (unpublished). Of course, in this en banc case, we are in a position to harmonize our prior precedents and speak with one voice. Our sister circuits also are not uniform, but the vast majority have either implicitly or explicitly adopted the “time of appeal” rationale. The Ninth and District of Columbia Circuits are the only circuits squarely holding that if the law is unclear at the time of trial and later becomes clear, the error is evaluated based on the law as it existed at the time of trial. See, e.g., United States v. Mouling, 557 F.3d 658, 664 (D.C.Cir.2009) (“We therefore hold that where, as here, the law was unsettled at the time of trial but became settled by the time of appeal, the general rule applies, and we assess error as of the time of trial.”); United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.1997) (“When the state of the law is unclear at trial and only becomes clear as a result of later authority, the district court’s error is perforce not plain; we expect district judges to be knowledgeable, not clairvoyant.”). In contrast, the First, Second, Tenth, and Eleventh Circuits have explicitly held that the plainness of error is evaluated at the time of appellate review when the law is unsettled at the time of trial but becomes clear by the time of appeal. See, e.g., United States v. Cordery, 656 F.3d 1103, 1106-07 (10th Cir.2011) (adopting the “blanket rule” that plain error is established at the time of appeal, regardless of whether the error was “plain or obvious at the time of sentencing” or trial); United States v. Garcia, 587 F.3d 509, 520 (2d Cir.2009) (concluding that “[wjhether an error is ‘plain’ is determined by reference to the law as of the time of appeal” in a case where the law was unclear at the time of sentencing but later became clear (internal citation and quotation marks omitted)); United States v. Ziskind, 491 F.3d 10, 14 (1st Cir.2007) (citing Johnson for the proposition “that error is plain if the law is clear at the time of direct appellate review, even though governing law was unclear at time of trial”); United States v. Underwood, 446 F.3d 1340, 1343 (11th Cir.2006) (holding that “even though the error was not plain at the time of sentencing, the subsequent issuance of [a Supreme Court opinion] establishes that the error is plain at the time of appellate consideration”). Additionally, the Third, Sixth, Seventh, and Eighth Circuits state that they would evaluate the plainness of error at the time of appeal, although these circuits have not expressly decided the issue of whether this principle applies when the error is unclear at the time of trial. See United States v. Crosgrove, 637 F.3d 646, 656-57 (6th Cir. 2011) (“However, the requirement that the error be plain means plain under current law .... For plain error review, current law is the law as it exists at the time of review.” (internal citation and quotation marks omitted)); United States v. Baumgardner, 85 F.3d 1305, 1308 (8th Cir.1996) (holding that “the plain error prong of the Olano standard should be determined in accordance with the law at the time of appeal”); United States v. Ross, 77 F.3d 1525, 1539 (7th Cir.1996) (“[W]e now hold that for purposes of Rule 52(b), a ‘plain’ error is one that is clear and uncontroverted at the time of appeal.”); United States v. Retos, 25 F.3d 1220, 1230 (3d Cir.1994) (holding that “inasmuch as the district court’s [ruling] was clearly and obviously erroneous under current law, we hold that it constituted ‘plain’ error”). D. Our Decision We conclude that United States v. Farrell, 672 F.3d 27 (1st Cir.2012) presents the better-reasoned view. As Farrell suggests, the purpose of plain error review in the first place is so that justice may be done. See id. at 36-37. The contemporaneous objection rule is, in part, intended to prevent lawyers from deliberately withholding an objection in an effort to gain another “bite at the apple” on appeal in the event that they are unsatisfied with the court’s ruling. See Puckett, 556 U.S. at 134, 129 S.Ct. 1423. But the plain error rule recognizes that not all failures to object are strategic. Indeed, some (maybe most) of the time, the failure to object is the product of inadvertence, ignorance, or lack of time to reflect. The four-pronged Puckett test strikes the balance between preventing the kind of “second bite at the apple” strategic decisions described above and avoiding the loss of rights due to counsel’s (or a party’s) error by making plain error review much more stringent and difficult than the standard of review that would otherwise apply (sometimes de novo and sometimes clear error or abuse of discretion). See id. at 135, 129 S.Ct. 1423 (noting that Rule 52(b) strikes a “careful balance ... between judicial efficiency and the redress of injustice”). Further, in the narrow situation we face here, it is unlikely that we would face a deliberate strategic decision by counsel, since by waiting to object, the party asserting the error would be taking a risk that the appellate court would not rule in its favor on the unsettled issue. Cf. Ross, 77 F.3d at 1539 (noting that “[fjorfeiture ... prevents defendants from strategically withholding objections in order to assert them on appeal and obtain a new trial,” but concluding that plain error review allows “the rule of forfeiture [to] bend slightly if necessary to prevent a grave injustice” and adopting the time of appeal rule). In the vast majority of plain error cases, there will be no intervening Supreme Court decision, meaning that establishing a “time of appeal” rule would not significantly alter trial counsel’s incentive to object. Counsel necessarily would not have a crystal ball to know that the Supreme Court would favorably decide a case in the interim. This is different from a case where a party hides an error that it knows would mandate reversal on appeal; that is not the situation we address here. “[T]he focus of plain error review should be ‘whether the severity of the error’s harm demands reversal,’ and not ‘whether the district court’s action ... deserves rebuke.’ ” Farrell, 672 F.3d at 36 (quoting Ross, 77 F.3d at 1539-40). “The plain error rule is protective; it recognizes that in a criminal ease, where a defendant’s substantial personal rights are at stake, the rule of forfeiture should bend slightly if necessary to prevent a grave injustice.” Ross, 77 F.3d at 1539; see also United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (“The plain-error doctrine of Federal Rule of Criminal Procedure 52(b) tempers the blow of a rigid application of the contemporaneous-objection requirement.” (footnote omitted)). Applying a “time of appeal” test also is more practical. Instead of having to try to go back in time and determine what was “clear” or “unclear” at the time of trial and potentially applying law we now know to be incorrect, we can simply apply the law as it is and determine whether the error is plain. This approach also allows the “reviewing court to avoid the elusive and potentially onerous case-by-case determination of whether the law was ‘settled’ or ‘unsettled’ at the time of trial.” Farrell, 672 F.3d at 37. Of course, determining that the error is plain is by no means the end. The third and fourth prong of Puckett continue to be stringent requirements that encourage counsel to make contemporaneous objections and avoid the strictures of those prongs. See, e.g., United States v. Marcus, - U.S. -, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010) (noting that a court of appeals may only correct an error that was not objected to in the trial court if the four elements of the plain error test are met). We conclude, therefore, that where the law is unsettled at the time of trial but settled by the time of appeal, the “plainness” of the error should be judged by the law at the time of appeal. II. Application to this Case Turning to the facts of this case, Escalante-Reyes was convicted of illegal re-entry under 8 U.S.C. § 1326. He contends that the district court erred in considering his need for anger management courses in determining the length of his sentence. During the sentencing hearing, the judge looked through EscalanteReyes’s file and noted instances of fighting in his past, stating: “Well there’s a temper and anger problem here, too____ So there’s a problem there. And it seems to me that that’s what we have to get under control. And that’s got to be the basis for what good prison will do for this Defendant.” Shortly thereafter, the district court announced its sentence, which included a recommendation for anger management courses while in prison. The defendant’s attorney objected that the district court did not adequately explain its reasons for the length of the sentence. In responding, the district court mentioned only two things: Escalante-Reyes’s quick return to the United States and that “[h]e has a problem with his anger management. He has things that need to be addressed.” Under Tapia, this determination was error. See 131 S.Ct. at 2393 (holding that a district court “may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation”). Given our ruling on the “timing of plain error,” the error was plain. Before we address the third and fourth prongs of plain error, it is important to note that we did not take this case en banc to address how the third and fourth prongs of plain error review should be applied in sentencing appeals. We continue to adhere to our prior precedent with respect to the third and fourth prongs of plain error review. Reversal for plain error is necessarily a fact-specific inquiry and, as we have previously noted, a finding that there was an error that was plain will not automatically lead to reversal. See, e.g., United States v. Davis, 602 F.3d 643, 648, 650 (5th Cir.2010) (concluding that although there was an error that was plain, reversal was not warranted because the error was “not the sort that we should, on plain error review, exercise our discretion to remedy”); United States v. Mondragon-Santiago, 564 F.3d 357, 364-65 (5th Cir.2009) (finding that although the defendant met the first two prongs of plain error, he failed to show that the error affected his substantial rights). We now turn to the task of assessing the third prong of plain error— whether the error affected EscalanteReyes’s substantial rights. “To affect the defendant’s substantial rights, the defendant must demonstrate that the error affected the outcome of the district court proceedings.” Broussard, 669 F.3d at 553. In the context of sentencing, we ask “whether the error increased the term of a sentence, such that there is a reasonable probability of a lower sentence on remand.” United States v. Garcia-Quintanilla, 574 F.3d 295, 304 (5th Cir.2009). For example, in Garciar-Quintanilla, we held that a district court’s imposition of a sentence that was greater than the Guidelines range based on the view that the court could later suspend the sentence after it began — which we determined to be an error that was “plain” — affected the defendant’s substantial rights because “the possibility of suspension was an essential aspect of this sentence.” Id. We held that “[b]ecause the possibility of suspension was so central to the sentence that [the defendant] received, we cannot confidently say that the district court would have imposed the same sentence” absent the error. Id. The facts of this case are similar to those in Garciar-Quintanilla in that here, the need for anger management treatment was such a central part of the district court’s explanation of Escalante-Reyes’s sentence that “we cannot confidently say that the district court would have imposed the same sentence” without it. Id. The district court clearly stated that Escalante-Reyes had a problem with anger “[a]nd that’s got to be the basis for what good prison will do for this Defendant.” In a conclusory fashion, the Government argues that the district court was “convinced” it had given the right sentence. Implicitly, then, the Government is arguing that the district court would have given the same sentence regardless of the Tapia error. For his part, Escalante-Reyes argues that there is a reasonable probability his sentence would have been lower. He notes that the district court referred twice to the need to get Escalante-Reyes’s anger under control and the efficacy of prison to do so. In a relatively short sentencing hearing, the anger management issue loomed large. While the district court gave a slightly-below Guidelines sentence, the circumstances show a probability that the court’s mercy was, as Escalante-Reyes noted, “tempered” by the desire to have him receive anger management training. The recommended Guidelines range was 63-78 months, and the district court sentenced Escalante-Reyes to 60 months. Escalante-Reyes’s counsel immediately objected to the sentence, arguing that it was “greater than necessary to satisfy the factors under 3553(a).” In response, the district court reiterated that Escalante-Reyes “has a problem with his anger management” and that “[h]e has things that need to be addressed.” We conclude that the error affected substantial rights because the district court’s repeated emphasis on the need for anger management treatment in prison was sufficient to undermine our confidence that the district court would have imposed the same sentence absent the error. See Garcia-Quintanilla, 574 F.3d at 303-04. The fourth prong of plain error asks whether the error affects “the fairness, integrity, or public reputation of judicial proceedings” such that the appellate court should exercise its discretion to correct the error. See Puckett, 556 U.S. at 135, 129 S.Ct. 1423 (internal citation and quotation marks omitted). We respect the discretion a sentencing court has in making a decision on sentencing. Additionally, we do not view the fourth prong as automatic if the other three prongs are met. See Davis, 602 F.3d at 650. However, the Supreme Court has instructed that “the discretion conferred by Rule 52(b) should be employed in those circumstances in which a miscarriage of justice would otherwise result.” Olano, 507 U.S. at 736, 113 S.Ct. 1770 (internal citation and quotation marks omitted). We continue to adhere to our precedent declining “to adopt a blanket rule that once prejudice is found under the [third plain error prong], the error invariably requires correction,” United States v. Reyna, 358 F.3d 344, 352 (5th Cir.2004) (en banc). This case is unlike those where the other three prongs were met and still we refused to correct a defendant’s sentence. For example, in Reyna, we declined to exercise our discretion to correct an error related to the denial of a right to allocute at a defendant’s third sentencing hearing even though the error otherwise met the first three prongs of plain error. Id. at 353. We found that the error did not affect the “fairness, integrity, or public reputation of judicial proceedings” because the defendant had been given the right to allocute at his original sentencing hearing and at a second sentencing proceeding that was held after he violated the terms of his supervised release. Id. at 352-53. The defendant was warned during the second proceeding that he would be sent back to prison for twelve months if he violated the terms of his supervised release again, and he was given an opportunity to allocute at that time; therefore, we concluded that “[o]n the particular facts of this case, we are satisfied that the district court’s error in failing to address Reyna and allow him to speak in mitigation of his sentence [at the third sentencing hearing] did not seriously affect the fairness, integrity or public reputation of his sentencing proceedings.” Id. at 353. Unlike such a case (as well as other similar cases), we are not satisfied that there is other evidence in the record that shows that Escalante-Reyes’s sentence is “fair,” or that the “integrity or public reputation” of the judicial proceeding was protected despite the erroneous consideration of Escalante-Reyes’s need for anger management treatment in determining the length of sentence. In light of the sentencing record as a whole, we conclude that the district court’s repeated emphasis on Escalante-Reyes’s need for anger management treatment in prison affected the “fairness, integrity, or public reputation” of the sentencing proceeding. Given Congress’s express admonition that “imprisonment is not an appropriate means of promoting correction and rehabilitation,” 18 U.S.C. § 8582(a), and the Supreme Court’s recent analysis in Tapia, we conclude that we should exercise our discretion to recognize this error. Accordingly, Escalante-Reyes’s sentence is VACATED and the case is REMANDED for resentencing in accordance with this opinion. Because of our disposition of this issue, we do not reach the other issues he raised. . Importantly, we address here only the narrow question of matters unsettled at the time of trial which are settled or clarified by the time of (not in) the appellate decision in question. . Because we first address this legal question, we will provide the facts necessary for the determination of the particular case further in the opinion. By way of background, we note that the claimed "plain error” is considering Escalante-Reyes’s need for anger management courses in prison in determining the length of his sentence. After the sentencing hearing in this case, the Supreme Court decided Tapia v. United States, - U.S. -, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011), which cleared any confusion over whether rehabilitation or correction can be considered in deciding whether to sentence a defendant to prison and for how long. . Indeed, if the text of Rule 52(b) was dispositive on the timing issue, the Supreme Court likely would have relied on the Rule’s text in Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). In that case, which is discussed in greater detail below, the Court relied on a policy consideration — not the Rule’s text — in deciding the timing of plain error when the law at the time of trial was settled but contrary to the law at the time of appeal. Id. at 467-68, 117 S.Ct. 1544. . The dissenting opinion filed by Judge Smith argues that the Supreme Court’s decision in Griffith — which held that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final ...,” 479 U.S. at 328, 107 S.Ct. 708 — counsels in favor of evaluating the error at the time of trial. See Smith Dissenting Op. at 428-30. However, in Johnson, the Supreme Court applied Griffith to the first prong of plain error analysis, not the second prong. See Johnson, 520 U.S. at 467, 117 S.Ct. 1544 ("Because petitioner is still on direct review, Griffith requires that we apply [United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)] retroactively. Accordingly, under Gaudin there was ‘error,’ and the first prong of Olano is satisfied."). By applying Griffith's retroactivity principle to the first prong and not the second, the Court implies that Griffith is not relevant to the issue of when plain error should be evaluated. Further, in a Fourth Circuit opinion that supported a time of trial rule, the court reached a similar conclusion, noting that “Griffith’s holding that a defendant whose direct appeal is pending receives the benefit of a new rule for purposes of determining whether the district court erred, bears not at all on the second requirement of Olano, that the error be 'plain.’ ” United States v. David, 83 F.3d 638, 643 n. 6 (4th Cir.1996). Additionally, even if Griffith’s retroactivity principle does apply to the second prong, several appellate courts have reached the opposite conclusion from that of this dissenting opinion; specifically, they have held that Griffith counsels in favor of finding plain error at the time of appeal. See, e.g., United States v. Retos, 25 F.3d 1220, 1230 (3d Cir.1994) (discussing Griffith's retroactivity principle in choosing to apply the time of appeal rule); United States v. Baumgardner, 85 F.3d 1305, 1309 (8th Cir.1996) (same). Thus, the argument that Griffith counsels in favor of adopting the time of trial rule is not persuasive. . The Fourth Circuit has issued inconsistent rulings on this question. Compare David, 83 F.3d at 645 (judging the plainness of error at the time of trial), with United States v. Maxwell, 285 F.3d 336, 342 (4th Cir.2002) ("[T]he error need not be plain at the time the district court erred as long as the error is plain at the time of appellate consideration.”). . The dissenting opinions authored by Judges Smith and Garza argue that we should focus on the judge's and prosecutor's role — rather than the defense attorney's role — in guarding against plain error, citing United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), for the proposition that "[b]y [Rule 52's] terms, recourse may be had to the Rule only on appeal from a trial infected with error so 'plain' the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it.” Id. at 163, 102 S.Ct. 1584. The dissenting opinion authored by Judge Smith states that "the definition [of plain error] focuses on the judge and prosecutor rather than on defense counsel.” Smith Dissenting Op. at 427. The dissenting opinion authored by Judge Garza also cites Frady for a similar proposition. Garza Dissenting Op. at 451-52. However, the Supreme Court has since decided Johnson, which held that an error may be "plain” even when at the time of trial, the law was contrary to the law at the time of appeal. See Johnson, 520 U.S. at 468, 117 S.Ct. 1544. In Johnson, the error was not "plain” to the judge or the prosecutor at the time of trial, but the Supreme Court nonetheless found that the error should be evaluated at the time of appeal. If the Supreme Court felt that it was bound by Frady's "definition” of plain error (i.e., that the error must be clear to the judge and prosecutor), it would not have decided Johnson as it did. . Indeed, even if the counsel were deliberately withholding an objection, we all agree that plain error review would be available for an error "clear” at the time of that deliberate decision, unless counsel announced something that amounted to a waiver. Thus, an examination of the motivations of counsel — a difficult task in and of itself — is not part of the plain error review analysis. . Although most cases applying the plain error review standard involve errors alleged to have harmed criminal defendants, the plain error rule is available to the Government as well. United States v. Willingham, 497 F.3d 541, 544, 546 (5th Cir.2007) (concluding that the Government should prevail on its sentencing appeal applying a plain error standard of review to the Government's unpreserved claim of error). Thus, the rule we announce in this opinion is not one-sided and will serve to promote justice under the law for both the Government and the defendant in these circumstances.
JERRY E. SMITH, Circuit Judge, dissenting, joined by EDITH H. 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 error fails to meet both the second and fourth prongs of plain-error review. It fails the second prong, because plainness should be measured at the time of forfeiture in cases such as this, where the law is unsettled at the time of trial and becomes clear by the time of appeal. The error flunks the fourth prong, because it does not even come close to the standard of seriously affecting the fairness, integrity, or public reputation of judicial proceedings. The error does not satisfy the plain-error standard, so we should uphold Escalante-Reyes’s sentence. I. Plainness of error should be measured at the time of forfeiture where the law was unclear at trial but becomes clear by the time of appeal. That interpretation is more in line with the purpose of “plainness” as indicated by the values and policies expressed by the Supreme Court. The majority’s notion to the contrary— that the purpose of plain-error review is to do justice — is an oversimplification and a red herring. It is an oversimplification, because the “justice” pm-sued by the plain-error standard is itself a balance between the goals of accuracy and efficiency. It is a red herring, because it lumps the purpose of all four elements of plain error together instead of focusing on the specific purpose of the “plainness” requirement. A. As the majority recognizes, the plain-error test has four prongs: (1) error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Edüd 718 (1997). The last two prongs are aimed specifically at avoiding the results that appear unjust to the appellate court, but all four prongs are required. Thus, the fact that the result seems unjust is one of the cumulative requirements to meet the plain-error standard; it is not the underlying inquiry upon which plain error expands. The relevant question is what, specifically, is the purpose of the plainness requirement in achieving this balance? The majority focuses on the need to give defense counsel the incentive to point out errors. Focusing solely on the lawyer’s incentives, however, ignores the broader role he plays in the proceedings. It falls to the defendant to notify the court and, especially, the prosecution of the need to develop the factual record further. See Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If defense counsel fails to point out that one of the prosecution’s legal theories rests on muddled law, the prosecution is less likely to develop the record for an alternate theory of conviction where the legal basis may be more sound. See Wainwright v. Sykes, 433 U.S. 72, 89, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In addition to reducing efficiency — because further trial proceedings are required after appeal and on remand — it reduces accuracy, because evidence becomes harder to produce as time moves on. The interests of accuracy and efficiency thus act in concert. Raising legal issues at trial is equally important irrespective of whether the law becomes clear on appeal. The problem— that the legal theory rests on muddled law — arises because the law is unclear at the time of trial, and it is independent of what happens by the time of appeal. Accordingly, the same measure of plainness — the law at the time of forfeiture— should apply in both cases. The Supreme Court’s definition sheds further light on the purpose of plainness. In United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), the Court defined it as “error so ‘plain’ the trial judge and prosecutor were derelict in countenancing it, even absent the defendant’s timely assistance in detecting it.” Thus, the definition focuses on the judge and prosecutor rather than on defense counsel. This is not because the second prong is concerned about being unfair to the judge, as Escalante-Reyes claims; it is instead because the defense’s role in pointing out errors is redundant where the error is so obvious that the other actors should notice it. Where the prosecutor chooses to develop a factual record that supports only a “plainly” flawed theory of conviction, he is unlikely to have better evidence to put forward. Furthermore, this sort of negligence on behalf of the defense will — perversely— tend to benefit the defendant. The prosecution bears a high burden of proof, so the inaccuracy caused by delay will disproportionately hurt its case. Nevertheless, the real problem here is reduced accuracy and efficiency on remand, even if defense attorneys are not intentionally being less diligent in the hope that the law might change. B. Focusing on the incentives of the defense attorney, the majority makes arguments that seem to be general criticisms of plain-error review rather than contentions regarding the timing of plainness. The majority urges that (1) the last two prongs of plain error provide ample incentive to point out errors at trial, and (2) it is difficult to afford an attorney the incentive to point out an error he has not noticed. Both of those arguments have some validity, but they prove too much: Neither is more valid where the law changes on appeal than where it remains cloudy on appeal. Thus, it would be difficult to use that reasoning to justify measuring plainness on appeal without throwing out the plainness requirement altogether. 1. The majority argues that giving attorneys the incentive to object by measuring plainness at the time of forfeiture is unnecessary, because the last two prongs of plain-error provide ample motivation to raise issues at trial. It is true that the last two prongs, coupled with the plainness requirement, theoretically provide some additional incentive to raise issues at trial. Nevertheless, the last two prongs provide no more incentive to point out unclear law at the time of forfeiture where the law becomes clear on appeal. If the plainness requirement is justified where the law remains muddled on appeal — and no one argues that courts do not find the requirement justified in that case — then why is the marginal incentive it produces not justified when the law later becomes clear? A change in the law cannot retroactively alter incentives at trial. Contrast the instant case with Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997): The Court ruled that plainness should be measured at the time of appeal where — because the law was obviously contrary to the defendant’s position — it would have been pointless for him to raise an issue at trial. Where the objection would be useless at trial, the defendant has little incentive to raise the error and cannot predict that the objection would have any value on appeal. The plainness requirement therefore adds no extra incentive to the defense to raise the error, nor does it give the prosecutor the incentive to develop an additional theory of conviction. Not only would plainness fail to further the goal of accuracy at trial, it would hinder the goal of efficiency. A “time-of-forfeiture rule” in that case would give the defense the incentive to raise a laundry list of frivolous objections in hope that the law changes on appeal. In contrast to the instant ease, in situations covered by Johnson the value of raising the objection at trial changes before appeal, so it follows that the measurement of plainness should change as well. Here, the defense should raise the objection where the law is muddled, regardless of whether it later becomes clear, so the measurement of plainness should remain the same. 2. There is validity to the majority’s contention that many (maybe most) failures to object at trial are the product of inadvertence rather than intentional withholding. Negligence is indeed harder to discourage than is wilfulness. But again, this focus by today’s majority is exclusively on defense counsel, ignores the role of the prosecutor in developing the record, and is a criticism of plain-error review in general. The same inadvertence prevents attorneys in all plain-error cases from raising issues where the law is muddled. Negligence is not harder to dispel because the law later becomes plain before appeal. The negligence in not raising the error is equivalent regardless of what happens by the time of appeal. C. The retroactivity principles discussed in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), also counsel in favor of the time-of-trial rule. Griffith held that changes in the law should always be applied retroactively for purposes of determining error on direct appeal. Id. at 328, 107 S.Ct. 708. In other words, error is always to be measured at the time of appeal. If we faithfully apply Griffith’s analysis to considerations involved in plainness, however, we must conclude that plainness should be measured at the time of forfeiture. Before Griffith announced the new rule that error is always to be determined at the time of appeal in criminal cases on direct review, courts decided the retroactivity of error on a case-by-case basis. See id. at 320-21, 107 S.Ct. 708. Courts examined the change in law and considered three factors to determine whether it applied to the case before them: (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Over time, that balancing approach led to the emergence of a category of cases in which error was almost never determined retroactively: cases in which the new rule was a “clear break” with precedent. Griffith, 479 U.S. at 324-26, 107 S.Ct. 708. Because of the last two retroactivity factors, error was generally not applied retroactively in the “clear break” category: When the law changed drastically, it disrupted the administration of justice, because law enforcement had relied on the old standards. United States v. Johnson, 457 U.S. 537, 549-50, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). In other words, the practicalities of law enforcement were the main factors that weighed against the retroactive application of error. Griffith then applied error retroactively to the “clear break” category, finding that the practicalities of law enforcement were outweighed by two considerations: (a) Applying error retroactively is more consistent with the idea that courts interpret law rather than change it; and (b) applying error retroactively better comports with the principle that two similarly situated defendants should be treated the same. Griffith, 479 U.S. at 322-25, 107 S.Ct. 708. Neither of these two factors that weighed against the practicalities of law enforcement in Griffith does so in this case. First, measuring plainness at the time of forfeiture is not in tension with the idea that courts are not changing the law. Whether a ruling is in error turns on what the law is, whereas the plainness of an error turns on how clear the law is. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If a ruling is not an error on Monday and is an error on Tuesday, then the law must have changed. The situation is different with plainness. An error can be unclear on Monday and very plain on Tuesday without any change in the law. The plainness of the error changes because the law is clarified, and it is uncontroversial that courts are supposed to clarify the law. Therefore, the first consideration in Griffith is not implicated in our case. Second, the time-of-forfeiture rule is consistent with treating similarly situated defendants the same. As with plain error generally, the defendant has a higher burden on appeal, because he did not make the necessary objection at trial. In Griffith, the Court was troubled by the fact that the defendant had a higher burden because of a fortuitous event that he could not influence. The Court focused on the fact that the defendant would not have the beneficial rule of Batson just because he was sentenced three months after the defendant in that case. Griffith, 479 U.S. at 327, 107 S.Ct. 708. Here, the relevant difference — as it always is where plain error review is implicated — is the action of the defendant’s lawyer. If that is not a relevant line to draw among defendants, then all procedural forfeiture rules fail to treat similarly-situated defendants the same. Thus, the two factors that weighed in favor of retroactivity in Griffith do not do so here. The interest in law enforcement — the need to establish an accurate factual record — does weigh against retro-activity, however. Therefore, the Griffith analysis suggests the time-of-forfeiture rule that the majority rejects. D. The majority contends that the time-of-forfeiture rule is more difficult to apply because the determination of whether the law was unclear at the time of trial may be elusive. This is untrue for two reasons: (1) the determination of whether law is unclear is not especially difficult, as demonstrated by courts familiar with making that inquiry in several other areas of law; and (2) the time-of-forfeiture rule will simplify the plain-error inquiry where the law was obviously unclear at the time of trial. The majority overstates the difficulty in applying a time-of-forfeiture rule. Indeed, courts are required to make similar determinations in deciding other issues where the availability of relief turns on the state of the law at the time an error occurred. There is no reason to think a time-of-forfeiture rule would be any more difficult than are those determinations that courts routinely make, nor is there any indication that the circuits already applying the time-of-forfeiture rule have found it impractical or difficult. Moreover, it may often be the case that the time-of-forfeiture rule renders plain-error review less onerous. In some cases, it is easier to determine that the second prong of the plain-error rule is not satisfied because the law was unsettled at the time of the district court proceedings. In those circumstances, an appellate court is able to reject a forfeited claim without engaging in the fact-intensive inquiry usually required to determine whether the third and fourth prongs are met. Indeed, that is the case here. A determination that a Tapia error was not plain at the time of sentencing because the law was unsettled at that time is not difficult. Furthermore, it is odd to justify the time-of-appeal rule on grounds of judicial efficiency, even if it saves time on appeal. By adopting that rule, the majority lowers the bar for plain-error review, which will undoubtedly result in more remands and new trials. Even assuming that the rule saves appellate resources, that savings will be more than counter-balanced by the need for new trials and resentencings. Accordingly, this court should hold that plainness is measured at the time of forfeiture where the law was unclear then. Because (1) Escalante-Reyes’s Tapia objection likely would have been fruitful had it been made at trial, and (2) the error was not so clear that the court or prosecution should have noticed it, the error does not meet the second prong of plain error review. The judgment of sentence should therefore be affirmed. II. Even if the error in this case satisfies the first three prongs of plain error, this court should not exercise its discretion to reverse under plain-error review, because the error does not “seriously affect the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (internal quotation marks and alterations omitted). In addition to choosing, erroneously, the time-of-appeal rule, the majority perpetuates this court’s unseemly practice of being far more permissive on plain-error review than the Supreme Court and common sense allow. This court’s regrettable drift toward bypassing entirely the high burden of the fourth prong is aptly summarized in a recent opinion by Judge Higginbotham, joined by Judges Elrod and Haynes: Th[e] emphasis on the second prong of plain error analysis is particularly important given the development of this court’s ease law on the third and fourth prongs of the plain error test in the sentencing context, where the court has been generous with remand, often finding that errors leading to substantial increases in sentences, even those errors not raised until appeal and thus subject to plain error review, merited remand, although we are not convinced that the case law on this point is settled or as categorical as language in some cases might make it seem .... Even if we were inclined, this is no occasion to offer metrics for the severity of an increase worked by decisions later found to have been error and such a departure as to summon our discretion to correct an injustice. Not every error that increases a sentence need be corrected by a call upon plain error doctrine. It bears emphasis that all defendants’ appeals challenging a sentence rest on the practical premise that the sentence should be less. The doctrine of plain error serves powerful institutional interests, including securing the role of the United States District Court as the court of first instance, as opposed to a body charged to make recommendations to appellate courts. And even if an increase in a sentence be seen as inevitably “substantial” in one sense it does not inevitably affect the fairness, integrity, or public reputation of judicial process and proceedings. To conclude that not correcting the error claimed here casts doubt upon the fairness, integrity, or public reputation of the proceeding drains all content from the doctrine of plain error. United States v. Ellis, 564 F.3d 370, 378 (5th Cir.2009) (footnote omitted). In regard to the third and fourth prongs, the majority’s error in the instant case is that it gives them short shrift, stating that “it is important to note that we did not take this case en banc to address how the third and fourth prongs of plain error review should be applied in sentencing appeals.” That is true only in part. Here, for the first time in decades and maybe for the first time ever, the court voted a case en banc without benefit of panel consideration. That action is well justified, because, as the majority explains, we need to take sides in the inter-circuit split on the timing issue in applying the second prong. But although the court has the discretion whether to take a case en banc, once we do so we have before us not just selected issues but the entire case. That is especially so in this rare circumstance, where there has been no panel treatment of any issue. The en banc court thus has the same responsibility to address all four prongs that a panel would have, and the decision on the third and fourth prongs should not be taken lightly. The en banc majority punts, however, stating that “[w]e continue to adhere to our prior precedent with respect to the third and fourth prongs of plain error review.” The majority gives the third prong only five paragraphs, the fourth prong a scant three. That amounts to inadequate consideration of an important aspect of this case and leaves us with an unsupportable standard for applying especially the fourth prong, as I will explain. Moreover, the erroneous majority ruling on the fourth prong gives en banc validation to those panel opinions that take an approach to plain-error review that is “generous” and “permissive” and that fail to exact the requirement that an error seriously affect the fairness, integrity, or public reputation of judicial proceedings. See Ellis, 564 F.3d at 378 & n. 44 (deploring the lax approach taken by this court on the fourth prong). A. The Supreme Court’s modern four-prong approach to plain-error review, based in Federal Rule of Criminal Procedure 52(b), was first articulated in Olano, but the standard guiding appellate courts as to when to exercise discretion to overturn forfeited error finds its origins in United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1936). Since Atkinson, appellate courts have been allowed to exercise their discretion under Rule 52(b) if errors “seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Id. at 160, 56 S.Ct. 391. What is more, since Atkinson, the Supreme Court has emphasized that a court of appeals should overturn a district court on plain-error review only in “exceptional circumstances.” Id. The circuits should correct only “particularly egregious errors,” and this power to correct should be “used sparingly.” United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (citing United States v. Frady, 456 U.S. 152, 163 & n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). This court has only a “limited” and “strictly circumscribed” power to correct forfeited errors. Olano, 507 U.S. at 735-36, 113 S.Ct. 1770; Puckett, 556 U.S. at 134, 129 S.Ct. 1423. Defendants should be granted relief under plain-error review only “rarely,” United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), because “[mjeeting all four prongs is difficult, as it should be,” Puckett, 556 U.S. at 135, 129 S.Ct. 1423 (citation and internal quotation marks omitted). Our sister circuits have appropriately echoed the Supreme Court’s restrictive approach to plain-error review. In the First Circuit, “only the clearest and most serious of forfeited errors should be corrected on appellate review.” United States v. Padilla, 415 F.3d 211, 223-24 (1st Cir. 2005) (en banc) (citations omitted). Thus, “[t]he plain error doctrine concentrates on ‘blockbusters’ .... Under it, appellate courts will notice unpreserved errors only in the most egregious circumstances.” United States v. Taylor, 54 F.3d 967, 973 (1st Cir.1995). The Second Circuit requires those errors to be “so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant’s failure to object.” United States v. Vasquez, 267 F.3d 79, 87 (2d Cir.2001) (citations omitted). The Seventh Circuit requires a similar level of egregiousness. See United States v. Conley, 291 F.3d 464, 470 (7th Cir.2002). The Fourth Circuit has stated that “[pjlain error review exists to correct only the most grievous of unnoticed errors.” United States v. Robinson, 627 F.3d 941, 956 (4th Cir.2010). Similarly, the Eighth Circuit has held that the “final prong of plain-error review is formidable,” United States v. Poitra, 648 F.3d 884, 889 (8th Cir.2011) (citations omitted), and the Tenth Circuit reverses only “particularly egregious” errors “in those rare cases in which core notions of justice are offended,” United States v. Gonzalez-Huerta, 403 F.3d 727, 736, 739 (10th Cir.2005) (en banc) (emphasis added). In contrast to Supreme Court precedent, which has commanded that plain-error relief be granted “sparingly” under “rare” and “exceptional” circumstances for only “particularly egregious errors,” this court, as I have said, has at times described its approach to plain error review as “generous” and “permissive.” Ellis, 564 F.3d at 378 & n. 44. Although at other times the rhetoric of the Fifth Circuit has matched that of the Supreme Court, this court’s aggregated practice testifies to the truth of Ellis’s observation: Since Olmo was decided, we have reversed on plain error at least 180 times. See Appendix A. Where the fourth prong has been reached, we have found it satisfied in an astonishing 72% of the cases. Id. Given the supposedly difficult nature of plain-error review, these numbers are disgraceful. Limiting relief under plain error to rare and exceptional circumstances is not without reason, even if we had the latitude to question the Supreme Court’s unequivocal pronouncements. We must always keep in mind that plain-error review “is not a run-of-the-mill remedy” but instead a limited exception to the contemporaneous-objection rule — a rule that serves important institutional interests. Puckett, 556 U.S. at 135, 129 S.Ct. 1423. “No procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited ... by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” Olano, 507 U.S. at 731, 113 S.Ct. 1770 (quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944)) (internal quotation marks omitted). This rule ensures full development of the record, prevents strategic timing of objections meant to secure a “second bite at the apple,” gives incentives for the diligence and zealousness of trial counsel and the defendant, minimizes the “sandbagging” of trial courts, promotes judicial economy by reducing appeals and remand, and safeguards the district court’s role as the court of first instance in our federal system. See Puckett, 556 U.S. at 134, 140, 129 S.Ct. 1423; John, 597 F.3d at 290-92 (Smith, J., dissenting). Our expansive and permissive application of plain-error review undermines each of these values and “drains all content from the doctrine of plain error.” Ellis, 564 F.3d at 379. “Any unwarranted extension of this exacting definition of plain error would skew the Rule’s careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed.” Young, 470 U.S. at 15, 105 S.Ct. 1038 (citation and internal quotation marks omitted). In almost every case in which this court improperly grants relief to forfeited objections, we not only erroneously charge the trial court with seriously affecting the fairness, integrity, and public reputation of judicial proceedings, we ourselves “encourage[ ] litigants to abuse the judicial process and bestir[ ] the public to ridicule it.” Johnson v. United States, 520 U.S. 461, 470, 117 S.Ct. 1544; see also Poitra, 648 F.3d at 892. When the court falsely accuses the district court of being a blackened kettle, it itself becomes a pot. More importantly, given our role as an intermediate appellate court, we must adhere to a stringent application of plain-error review, because it is required by the plain language of the standard announced by the Supreme Court. We may exercise our discretion to reverse on plain-error review only where the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Of course, any and every error affects, to some degree, the fairness and integrity of our judicial system. But we are to reverse only those that seriously do so. Plain errors are those that are “exceptional,” Atkinson, 297 U.S. at 160, 56 S.Ct. 391, “particularly egregious,” and “undermine the fundamental fairness” of our system, Young, 470 U.S. at 15-16, 105 S.Ct. 1038. An error that warrants reversal despite the contemporaneous-objection rule is one that, if left uncorrected, would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge. In many cases, including this one, our court fails to uphold that high standard. This is nowhere more true than in the context of sentencing. Since Olano, we have reversed at least 146 sentences on plain-error review, finding the fourth prong met over 70% of the time it is reached. See Appendix A. That is hardly “rare.” It is understandably tempting to say that if a defendant’s substantial rights were likely affected by an error at sentencing, the longer deprivation of liberty necessarily and seriously affects the fairness, integrity, or public reputation of judicial proceedings. But such a liberty “interest is always at stake in criminal cases,” Puckett, 556 U.S. at 142, 129 S.Ct. 1423, and an approach that collapses the third and fourth prongs essentially transforms plain-error review into harmless-error review with a shifted burden, “drain[ing] all content from the doctrine of plain error,” Ellis, 564 F.3d at 379. It “emasculates the plain-error standard of review,” making it “weakened to the point of toothlessness.” United States v. Mudekunye, 646 F.3d 281, 291 (5th Cir.2011) (Barksdale, J., dissenting). “[A] plain error affecting substantial rights does not, without more, satisfy the Atkinson standard, for otherwise the discretion afforded by Rule 52(b) would be illusory.” Olano, 507 U.S. at 737, 113 S.Ct. 1770 (emphasis added). What is more, “[t]he fourth prong is meant to be applied on a case-specific and fact-intensive basis,” so a “per se approach” in the sentencing, or any other, context “is flawed.” Puckett, 556 U.S. at 142, 129 S.Ct. 1423 (citation and internal quotation marks omitted). Sadly, time and again, this court has either given the fourth prong little analysis or has assumed it away altogether. Beyond all the injury this court’s approach does to the law and our system of justice, it adds a fair amount of insult as well. When