Whether a criminal defendant meets the substantial rights prong of plain error review when sentence differences on separate counts would change absent the error but total consecutive sentence remains likely the same

QUESTION PRESENTED FOR REVIEW An error raised for the first time on appeal is reviewed for plain error. Under the plain error doctrine, “there must be error, the error must be plain, and the error must affect substantial rights.” United States v. Olano, 507 U.S. 725, 732-36 (1993)). If these three prongs are met, the court of appeals has the discretion to correct the error, and it should do so if that error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Olano, 507 U.S. at 736. In order to meet the third prong of the plain error analysis — that the error affected the defendant’s substantial rights — a defendant need only demonstrate a reasonable probability of a different outcome. See MolinaMartinez v. United States, 136 S. Ct. 1338, 1348-49 (2016). Mr. Robinson argued on appeal that the government breached the plea agreement when it requested sentences for count one and count two that were different than the agreed recommendations contained in the plea agreement. The two sentences were required to be imposed and served consecutively, and the total sentences for the consecutive sentences would have remained the same. Here, two things are clear: 1) the sentences imposed on Mr. Robinson on each of the two counts would have been different absent the error; and 2) the combination of the two consecutive sentences would likely have been the same. QUESTION PRESENTED When a criminal defendant demonstrates that, but for the plain error raised on appeal, his sentence as to each of two separate counts would be different, does he meet the requirement that the claimed error affects his substantial rights even where the combined sentence of the two consecutive sentences would likely remain the same? i INTERESTED PARTIES There are no