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Table of Contents

850 – Appeal of Sentence (18 U.S.C. §3742)

850 – Appeal of Sentence (18 U.S.C. §3742)
  • 855 Waiver by Failure to Object
  • 860 Refusal to Depart Not Appealable
  • 865 Overlapping Ranges, Appealability of
  • 870 Standard of Review, Generally (See also substantive topics)

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§865 Overlapping Ranges, Appealability

First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
D.C. Circuit
Miscellaneous

6th Circuit holds robbery by intimidation was a crime of violence. (520)(865) Defendant signed a plea agree­ment after being charged with six counts of bank rob­bery, in violation of 18 U.S.C. §2113(a), (d). The agree­ment included an “understand[ing]” that defendant would be sentenced as a career offender because “he ha[d] at least two prior crime of violence convictions.” Defen­dant’s sentencing memo also agreed that defendant was a career offender. Nonetheless, defendant contested his career offender designation on appeal, arguing that in light of Johnson v. U.S., 135 S.Ct. 2551 (2015), §2113 was not a crime of violence. The Sixth Circuit found that defendant waived this argument, but because he could not have raised the Johnson argument below, the panel reviewed for plain error, and found none. Johnson invalidated the residual clause of the Armed Career Criminal Act, which the circuit held applied to the career offender guideline §4B1.2 as well. However, §2113 bank robbery qualified as a crime of violence through §4B1.2’s physical force clause. Bank robbery by “force and violence” plainly involved “the use, attempted use, or threatened use of physical force.” Bank robbery by intimidation also qualified, because the defendant must know that his actions would create the impression that resistance would be met by force. U.S. v. McBride, __ F.3d __ (7th Cir. June 10, 2016) No. 13-3863.

7th Circuit holds that defendant forfeited, rather than waived, criminal history challenge. (865) Defendant pled guilty to drug charges. He argued on appeal that the district court erred in determining his criminal history. The government argued that defendant waived his claim because he did not raise it prior to his appeal. The Seventh Circuit held that defendant forfeited, rather than waived his claim. The facts of the case were virtually indistinguishable from U.S. v. Jenkins, 772 F.3d 1092 (7th Cir. 2014), where the defendant challenged criminal history points that were based on an Illinois AUUW conviction which had been held facially unconstitutional at the time of his sentencing. As in Jenkins, the court rejected the government’s argument that defendant “knew about and intentionally chose not to raise the AUUW argument.” Without the extra criminal history points, defendant would have been in a lower criminal history category, which would have reduced his guidelines range. There was no reason why defendant would have intentionally relinquished an objection certain to result in a lower criminal history score and sentencing range. Therefore, defendant forfeited, rather than waived, his criminal history claim. The Seventh Circuit found the forfeited error was plain, and reversed. U.S. v. Gill, __ F.3d __ (7th Cir. May 31, 2016) No. 15-1779.

1st Circuit finds no plain error in calculating criminal history points where no change in category. (865) Defendant for the first time on appeal argued that the district court improperly included in his criminal history point an offense that was part of the instant offense, and incorrectly counted as a separate prior offense two state convictions that were related cases. The First Circuit found it unnecessary to address the merits of the alleged errors, because even if there was error, it was not plain. If defendant’s claims were correct, it would have reduced his criminal history points from six to four. However, this point reduction would not change his criminal history category, since Category III covers criminal history scores ranging from four to six points. As a result, since no other errors were alleged, the applicable guideline range of 121-151 months’ imprisonment would remain unchanged. Any error was not prejudicial because it did not affect defendant’s sentence. U.S. v. Albanese, 287 F.3d 226 (1st Cir. 2002).

 

1st Circuit finds sentence would still fall within range, despite double counting claim. (865) Defendant at­tempted to fraudulently obtain and de­posit corporate bank drafts. In one in­stance, he tried to obtain $150,000 from the accounts of 30 victims, but because the bank suspected fraud, he failed to obtain any funds. One month later, defendant attempted to obtain a total of $583,443 from the accounts of 80 different victims. Defendant argued for the first time on appeal that the district court double counted some of the loss since the second offense was partly to make up for the lack of suc­cess in the first offense. Of the 80 victims of the second fraud, 30 were victims from the first fraud. The First Circuit found no plain error. First, defendant’s actions in the second fraud increased the potential risk of loss to the 30 overlapping victims. Second, even if the loss from the second fraud were reduced by $150,000, his sentence still would fall within the new sentencing range. Thus, the error could not affect defendant’s substantial rights. U.S. v. Carrington, 96 F.3d 1 (1st Cir. 1996).

 

1st Circuit does not review enhancement where defendant still subject to mandatory life sentence. (865) Defendant challenged an obstruction of justice enhancement. The First Circuit refused to review the matter, since defendant would still be subject to a mandatory life sentence even without the enhancement. His offense with the enhancement was 45; without the enhancement it would be 43. Life imprisonment is mandatory at or above 43. U.S. v. Saccoccia, 58 F.3d 754 (1st Cir. 1995).

 

1st Circuit refuses to address enhancement where it would not change sentence. (865) Defendant received the statutory maximum 120-month sentence for his felon in possession conviction. The Second Circuit refused to address his challenge to an obstruction of justice enhancement since it would not change his sentence. Reducing defendant’s offense level by two would give him a guideline range of 120-150 months. Even if the enhancement were erroneous, the district court would be without power to give him a lower sentence than the 120-month term of imprisonment he actually received. U.S. v. Powell, 50 F.3d 94 (1st Cir. 1995).

 

1st Circuit declines to consider criminal history claim that would not change guideline range. (865) Defendant argued that the district court erroneously assessed one criminal history point for a conviction on which he received a diversionary disposition. The 1st Circuit declined to address the issue because it did not affect the length of defendant’s sentence. Defendant had six criminal history points, placing him in criminal history category III. To achieve a sentence reduction, defendant would need to lose three criminal history points from his criminal history score. U.S. v. Lewis, 40 F.3d 1325 (1st Cir. 1994).

 

1st Circuit finds no plain error in criminal history calculation where ultimate sentence was still below revised guideline range. (865) Defendant argued for the first time on appeal that the district court miscalculated his criminal history.  The 1st Circuit did not reach the merits of his claim because no plain error occurred.  Excluding the challenged conviction from defendant’s criminal history would reduce his guideline range to 41 to 51 months.  The sentence imposed, after the court departed downward, was only 36 months.  Because the sentence defendant received was still below the guideline range he advocated, there was no plain error.  U.S. v. Forbes, 16 F.3d 1294 (1st Cir. 1994).

 

1st Circuit does not conduct in-depth review where it would not change base offense level. (865) Defendant challenged the district court’s de­termination that he was responsible for 8.99 kilo­grams of cocaine.  The 1st Circuit found it unneces­sary to address in depth defendant’s claim since there was support in the record for ascribing at least five kilograms of cocaine to him.   One witness, who the district court found credible, testified that he bought between five and eight kilograms of cocaine from defendant.  Thus, defendant was clearly re­sponsible for between five and 15 kilograms of co­caine and his base offense level and guideline range were correct.  Since he received a sentence at the bot­tom of his range, even if his allegations were correct, his sentence would be unchanged.  U.S. v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993).

 

1st Circuit reviews enhancement notwith­standing upward departure. (865) Defen­dant was given an upward adjustment for ob­struction of justice, and additionally the dis­trict court departed upward from the guide­lines sentence.  Defendant challenged the ob­struction adjustment.  The 1st Circuit re­jected the government’s argument that the district court’s up­ward departure eliminated the need to review the propriety of the ad­justment.  Whether the adjustment was proper would determine the appropriate guide­lines range, a fact of significance in as­sessing the scope of the departure. U.S. v. Emery, 991 F.2d 907 (1st Cir. 1993).

 

1st Circuit refuses to consider challenge to en­hancements where due to grouping they did not affect his offense level. (865) De­fendant was convicted of numerous counts arising from his in­volvement in a conspiracy to rob an armored truck.  Defendant chal­lenged certain enhancements relating to the theft of certain cars.  The 1st Circuit refused to review the challenges since they did not af­fect defen­dant’s sentence.  Under section 3D1.4(c), the district court disregarded the stolen car counts and set de­fendant’s offense level solely on the basis of the grouped rob­bery counts.  Adjustments to the stolen car counts did not figure into defendant’s sen­tence. U.S. v. Chapdelaine, 989 F.2d 28 (1st Cir. 1993).

 

1st Circuit reverses sentence within cor­rected guidelines range because computa­tion of original range was incorrect. (865) The court deter­mined that defendant had a guideline range of 78 to 97 months and im­posed a 78-month sentence.  On ap­peal, the 1st Circuit reversed a two level en­hancement, which resulted in a guideline range of 63 to 78 months.  Although defendant’s sentence fell within his corrected guideline range, the 1st Circuit found that remand was necessary.  When the court appears to have chosen a sen­tence because it was at or near either polar extreme, the case should be re­manded for re­sentencing if any error is found within the calculation of the guideline range, even if the sen­tence falls within the correct  guideline range.  The sentence should be upheld only if the record makes it reasonably clear that the trial court would have im­posed the same sen­tence under either range.  Here, remand was required.  U.S. v. Ortiz, 966 F.2d 707 (1st Cir. 1992).

 

1st Circuit upholds sentence where possi­ble error in victim loss calculation would not change of­fense level. (865) The district court set the to­tal victim loss from defen­dant’s bank fraud at $721,000, which under section 2F1.1(b)(1) triggered an eight level enhancement.  Defendant argued that amounts which were misapplied by defendant but remained with the bank should not be in­cluded in the calculation because they were never “taken.”  The 1st Circuit declined to de­termine whether this argu­ment had merit since even if correct, the net victim loss would be still be over $522,000.  This would still justify the eight level enhancement under section 2F1.1. U.S. v. Shattuck, 961 F.2d 1012 (1st Cir. 1992).

 

1st Circuit finds no error in denial of mo­tion to con­tinue sentencing hearing. (865) De­fendants asserted that the trial court erred in denying their motion for a continuance at sen­tencing so that they could offer proof of the amount of the victim loss caused by their fraud.  De­fendants had ample oppor­tunity to present evidence to the court regarding val­uation of victim loss.  The sen­tencing judge made a determination that defen­dants were not entitled to an evidentiary hearing to pre­sent further proof of loss.  Further, defen­dants would have had to show that the dis­trict court’s valu­ation erred by $450,000 in order to reach the next lower level.  The only evidence cited in their briefs alleged an error of $79,000, well below the threshold neces­sary to change their offense level.  Moreover, even if defendants had prevailed and re­ceived the offense level reduction, their sentences still would fall within the present guideline range.  Thus any error in the calculation of loss was harmless.  U.S. v. Concemi, 957 F.2d 942 (1st Cir. 1992).

 

 

1st Circuit cannot review whether defendants’ sentences were imposed in retaliation for ex­ercising right to trial where sentences were within applicable guideline range. (865) De­fendants were convicted by a jury of aiding and abetting each other in the distribution of more than 5,000 grams of cocaine.  One was sen­tenced to 150 months and the other was sen­tenced to 84 months.  A codefendant who pled guilty received a downward de­parture based upon substantial assistance to the gov­ernment and received a sentence of 30 months.  Defen­dants argued that their sentences were im­posed in re­taliation for exercising their right to a jury trial.  Both sentences were within the applicable guidelines range, and the 1st Circuit held that it had no appellate jurisdic­tion to consider a sentence within the applicable guide­line range.  U.S. v. Vega-Encarnacion, 914 F.2d 20 (1st Cir. 1990).

 

2nd Circuit reviews despite court’s statement that it would impose same sentence regardless. (865) Defendant challenged the court’s imposition of four sentencing enhance­ments. The govern­ment argued that the appellate court did not need to decide whether the enhancements were proper because, during sentencing, the court said that “even if some of my rulings regarding the enhancements or the grouping are inaccurate, there is no question that I still would give the same sentence I am about to give under [18 U.S.C. § 3553(a)].” The Second Circuit ruled that the district court’s statement was not a “unam­bigu­­ous declar­ation” that the court would impose the same sentence even if its four challenged Guidelines deter­minations were overturned. The court referred, without specifi­city, to “some” of the enhance­ments, without stating which en­hance­ment—or which combination of enhance­ments—would not affect defendant’s sentence. An appellate court should not “lightly assume that eliminating enhancements from the Guidelines calculation would not affect the sentence.” A district court “generally should not try to answer the hypothetical question of whether or not it definitely would impose the same sentence on remand if [the appellate] court found particular enhancements erroneous.” U.S. v. Feldman, 647 F.3d 450 (2d Cir. 2011).

 

2nd Circuit finds failure to rule on objection was harmless where court would have imposed same sentence. (865) Defendant was convicted of producing child pornography. He argued that the district court violated Rule 32(i)(1) and (3) by failing to rule on his objection to the court’s conclusion that the 2004 version of the Guidelines would have provided a life sentence for defendant’s offense. The Second Circuit found that while the court’s failure to rule on his objection was at least a technical error, the error was harmless, since it was clear it did not affect the sentence imposed. The court’s conclusion that a 30-year sentence was reasonable turned on many factors besides its assessment of the 2004 Guidelines. The court discussed defendant’s additional criminal activity, the “degree or moral outrage, depravity and blatant wickedness the offense would spark in the mind of the average person,” and the particularly strong need to incapacitate defendant in light of his proclivity for disseminating information and advice to other pedophiles and sexual predators via the Internet. In addition, the judge concluded that he couldn’t recall ever having been so disturbed by a case. U.S. v. Gilmore, 599 F.3d 160 (2d Cir. 2010).

 

2nd Circuit refuses to review government’s challenge where same sentence would be imposed on remand. (865) The government appealed the court’s refusal to apply a four-level enhancement under § 2F1.1(b)(6)(B), which applies where a fraud offense “affected a financial institution and the defendant derived more than $1,000,000 in gross receipts from the offense.” The judge stated alternatively that if his view about this section was wrong and he had the discretion to make a downward departure because of defendant’s role in the offense, he would downwardly depart four levels. In addition, the court departed downward under § 5K2.0 based on the extraordinary family circumstances, charitable works, and age. The Second Circuit that the government’s challenge to the court’s refusal to apply the § 2F1.1(b)(6)(B) increase did not need to be adjudicated because it was clear from the sentencing judge’s alternative ruling that the same sentence would have been imposed on remand. Although the government argued that a four-level downward departure for role in the offense would not have been warranted, the judge sufficiently indicated that he would use his departure discretion, even if he started from a higher level, to end up with a 72-month sentence. U.S. v. Shuster, 331 F.3d 294 (2d Cir. 2003).

 

2nd Circuit holds that use of expired guideline constituted plain error despite overlap of ranges. (865) Between September and October 2000, defendant engaged in a mail fraud scheme. The district court believed that an ex post facto issue would result from the use of the 2001 guidelines, and sentenced defendant under the 1998 guidelines. As it turned out, use of the 2001 guidelines would not have raised any ex post facto issues – defendant’s offense level under the 1998 guidelines was 13, his offense level under the 2001 guidelines would have been 12. Because defendant did not object below, plain error review was applicable. The Second Circuit held that the use of the expired guideline constituted plain error warranting reversal. The govern­ment argued that the use of the wrong version of the guidelines did not warrant remand because defendant’s 15-month sentence fell within the ranges called for by both the expired 1998 guidelines (12 to 18 months) and the effective 2001 guidelines (10 to 16 months). See U.S. v. Diaz, 176 F.3d 52 (2d Cir. 1999). However, the facts of this case were more similar to U.S. v. Martinez-Rios, 143 F.3d 662 (2d Cir. 1998) than the cases cited by the government. Martinez-Rios found that a similar error affected the defendant’s “substantial rights” because the court was confident that the defendant would have received a different, shorter sentence absent the oversight. The judge’s comments here, like those of the court in Martinez-Rios, reflected her intent to choose a term of imprisonment based on where it fell within the applicable guideline range, rather than her decision to choose a sentence she had in mind before selecting the applicable guideline. Where the record permits the inference that a defendant would have received a different, shorter sentence absent the unobjected-to error, the defendant’s substantial rights have been affected within the meaning of Rule 52(b). U.S. v. Keigue, 318 F.3d 437 (2d Cir. 2003).

 

2nd Circuit refuses to reduce fraud loss by offsets. (865) The government argued that the loss from defendant’s fraud was between $10 and $20 million, resulting in an offense level of 27. Defendant argued that it was between $1.5 and $2.5 million, due mainly to a series of offsets that defendant argued should apply, resulting in an offense level of 25. The Second Circuit, relying on U.S. v. Carrozzella, 105 F.3d 796 (2d Cir. 1997), rejected defendant’s claim about the offsets, because they all involved money that was “necessary for the scheme to continue.” Loss in fraud cases includes the amount of property taken, even if all or part has been returned. Moreover, disputes about applicable guidelines need not be resolved where the sentence falls within either of two arguably applicable guideline ranges and the same sentence would have been imposed under either guideline range. The court indicated that defendant would have received the same sentence regardless of whether the offsets were included. U.S. v. Koh, 199 F.3d 632 (2d Cir. 1999).

 

2nd Circuit holds that arithmetic error in calculating tax loss was plain error. (865) In calculating tax loss, the district court found that 28 percent of $804,104.94 was $255,149.38 rather than $225,149.38. This error was significant because it put defendant just barely above the $1.5 million threshold for base offense level 18. The government argued that defendant waived his right to object by failing to bring the error to the lower court’s attention. Also, the sentence actually imposed was within the guideline ranges of both of the relevant adjusted offense levels. The Second Circuit held that the arithmetic error in calculating tax loss was plain error. The error was plain and obvious, and “affected substantial rights” under Rule 52 because it resulted in defendant’s receiving a longer sentence than the district court intended to give him. A court may affirm a sentence derived from an incorrect offense level only where the sentence also falls within the correct sentencing range, and the district court has said that it would have imposed the same sentence under either offense level. Here, the district court said that it “could not in good conscience impose any sentence above the minimum.” This clearly suggested that the court would have imposed a lower sentence if it could have done so. U.S. v. Martinez-Rios, 143 F.3d 662 (2d Cir. 1998).

 

2nd Circuit remands to correct criminal history category where offense level was 35, not 43. (865) Defendant was convicted of multiple crimes arising from his participation in a drug trafficking ring. He argued that all but one of his criminal history points were for conduct that was part of the present conspiracy offense. The government conceded that the district court erred in assigning a criminal history level of V. However, it claimed the error was immaterial since at offense level 43, the criminal history category did not affect the length of the sentence. The Second Circuit remanded for the limited purpose of determining and applying the correct criminal history category. The district court departed downward from level 43 to 35. At level 35, a reduction in criminal history category effects the length of the sentence. U.S. v. Walker, 142 F.3d 103 (2d Cir. 1998).

 

2nd Circuit refuses to review use of allegedly wrong guideline where sentence was within agreed range. (865) Defendant, a tugboat captain, pled guilty to involuntary manslaughter by criminal negligence in the drowning deaths of two crew members. In his plea agreement, defendant acknowledged that his conduct subjected him to a guideline range of 6-12 months. Defendant argued that the district court sentenced him under the “reckless” guideline rather than for being criminally negligent. The Second Circuit refused to review the matter because the 12-month sentence was within the range defendant agreed upon in his plea agreement. A sentencing judge should specify that the same sentence would have been imposed if the proper guideline had been applied. But here it was clear that the district court would have imposed the same 12-month sentence under the criminal negligence guideline. U.S. v. McHugh, 122 F.3d 153 (2d Cir. 1997).

 

2nd Circuit refuses to review drug quantity where court would still have imposed life sentence. (865) The district court found that defendant was responsible for 100 to 300 kilograms of heroin, which required a sentence of life imprisonment under the guidelines. Defendant argued that he was only responsible for 30 to 100 kilograms, which would have resulted in a guideline range of 360 months to life. The 2nd Circuit refused to review the court’s drug quantity determination because it was clear from the court’s comments that it would make no difference in the sentence imposed. Where the guidelines provide overlapping ranges of imprisonment, the sentence actually imposed is in the area of overlap, and the sentencing court has indicated that it would impose the same sentence whichever range applied, there is no basis for reversal on appeal. U.S. v. Rivera, 22 F.3d 430 (2nd Cir. 1994).

 

2nd Circuit reviews claim despite overlapping ranges. (865) Defendant originally had a guideline range of 97 to 121 months, but due to the application of a mandatory minimum 10 year term, the range was reduced to 120 to 121 months.  He received a 120-month sentence.  On defendant’s challenge to the application of the mandatory minimum, the government argued that the sentence was unreviewable because the court would have imposed the same sentence regardless of whether the minimum applied.  The 2nd Circuit reviewed defendant’s claim, finding that it was unclear whether the district court would have imposed the same sentence absent the mandatory minimum.  U.S. v. Lovell, 16 F.3d 494 (2nd Cir. 1994).

 

2nd Circuit declines challenge to armed career criminal status that did not affect guideline range. (865) The 2nd Circuit re­fused to consider de­fendant’s claim that he was improperly classified as an armed career criminal under guideline section 4B1.4, since it did not affect his guideline range.  Defen­dant also qualified as a career offender under section 4B1.1, which would have resulted in his re­ceiving the same offense level and criminal history category as he received un­der section 4B1.4.  U.S. v. Howard, 998 F.2d 42 (2nd Cir. 1993).

 

2nd Circuit refuses to reconsider criminal his­tory calcula­tion where sentence imposed fell within new guideline range. (865) Defendant argued for the first time on appeal that the district court improperly added points to his criminal history for various uncounseled con­victions.  The 2nd Circuit declined to consider whether uncounseled convictions can properly be con­sidered in calculating a defendant’s criminal history score.  Defendant received a 77 month sentence.  Even if the district court erred, the reduction of criminal history points would result in a guideline range of 63 to 78 months.  Since defendant could have received exactly the same sentence in the absence of the alleged error, the error could not have affected substantial rights.  U.S. v. Arigbodi, 924 F.2d 462 (2nd Cir. 1991).

 

2nd Circuit remands for clarification as to whether same sentence would have been im­posed for overlap­ping ranges. (865) Defendant argued that guideline § 4A1.2(c)(1) should be interpreted to exclude from the crimi­nal history calculation a nonfelony offense for which an in­definite term of probation was imposed.  The 2nd Circuit de­clined to rule on the issue because even if he prevailed, his guideline range would overlap the same sen­tence he re­ceived.  The court remanded the case to the trial court to determine whether the same sentence would have been im­posed in any case.  “[S]ince resolu­tion of the instant contro­versy may not affect [defendant’s] sen­tence, we decline to render a poten­tially advi­sory opinion broadening or narrow­ing the scope of § 4A1.2(c)(1).”  U.S. v. Rich, 900 F.2d 582 (2nd Cir. 1990).

 

2nd Circuit holds that where sentence would not be af­fected, failure to grant downward re­duction is not grounds for appeal. (865) De­fendant argued that the district court erred in failing to clas­sify him as a minor participant un­der § 3B1.2(b).  The Second Circuit affirmed the sentence and refused to consider the de­fendant’s con­tentions because the sen­tencing judge in­dicated that the defendant would have received an 18 month term even if he received the two level reduction.  “Where the sen­tencing court arrives at a sentence that is permissible for both the adjudicated level and a claimed reduced level, and the court in­dicates that a reduction in offense level would not affect the sentence determina­tion, an appel­late court need not ad­dress the merits of the claimed reduc­tions.” U.S. v. Colon, 884 F.2d 1550 (2nd Cir. 1989), abrogated on other grounds by U.S. v. Mickelson, 443 F.3d 1050 (8th Cir. 2006).

 

3rd Circuit says incorrect guidelines calculation typically requires remand after Booker. (865) The district court incorrectly calculated defendant’s criminal history, resulting in an incorrect sentencing range. The Third Circuit found that an incorrect Guidelines range will typically require reversal under 18 U.S.C. § 3742(f), even though the Guidelines are now advisory. The Supreme Court has made clear that sentencing courts are required to “consider” the Guidelines in crafting a sentence. The correct guideline calculation constitutes the “natural starting point” from which the sentencing court exercises its discretion under § 3553(a). Under certain circumstances, miscalculation of the Guidelines may be harmless. But the Third Circuit will remand unless it can “conclude on the record as a whole … that the error did not affect the district court’s selection of the sentence imposed.” An improperly calculated Guidelines range “can rarely be shown not to affect the sentence imposed.” An overlap of guideline ranges does not render an error harmless. Here, although the 46-month sentence was within the guideline range in either case, this was not that rare case where the court could be sure that the erroneous guideline calculation did not affect the sentencing process. U.S. v. Langford, 516 F.3d 205 (3d Cir. 2008).

 

3rd Circuit holds that sophisticated means increase violated ex post facto clause. (865) Defendant argued for the first time on appeal that the district court violated the ex post facto clause by applying a two-level sentence enhancement for the commission of fraud by “sophisticated means” under § 2F1.1(b)(5)(C). The sophisticate means enhancement did not become effective until November 1, 1998, more than a year after the last conduct charged in the indictment. The government conceded that the district court plainly erred by applying the enhancement. However, it contended that defendant’s sub­stantial rights were not prejudiced by the error because the range of possible sentences under the correct sentencing level (level 19 and a range of 30-37 months) overlapped with the range of sentences under the erroneous sentencing level (level 21 and a range of 37-46 months). However, in U.S. v. Knight, 266 F.3d 203 (3d Cir. 2001), a Third Circuit panel held that under plain error review, “an error in application of the Guidelines that results in use of a higher sentencing range should be presumed to affect the defendant’s substantial rights.” Here, the Third Circuit ruled that the government failed to rebut the presumption of prejudice. The error “too seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings” to be left uncorrected. U.S. v. Syme, 276 F.3d 131 (3d Cir. 2002).

 

3rd Circuit presumes incorrect guideline range affects substantial rights, even if sentence is within correct range. (865) The district court found that defendant was a career offender, resulting in a guideline range of 151-188 months, and a 162-month sentence. The government conceded on appeal that defendant was not a career offender and that his proper guideline range was 140-175 months. However, it argued that remand was not necessary because defendant could not show that his sentence would have been different had the sentencing range been properly calculated. The Third Circuit held that under the plain error doctrine, application of an incorrect guideline range presumptively affects substantial rights, even it if results in a sentence that is also within the correct range. Ordinarily, a defendant who fails to object to an error before the trial court must demonstrate prejudice by showing that the outcome was affected. However, prejudice may be presumed in certain circumstances. Here, the guidelines are intended to, and do, affect sentencing. In addition, absent a fortuitous comment by the sentencing judge on the record, it is very difficult to ascertain the impact of an erroneous guideline range. Cases that have found sentencing errors not affecting substantial rights because the sentence fell within both the right and wrong guideline range “provide too little protection for the substantial right at issue.” U.S. v. Knight, 266 F.3d 203 (3d Cir. 2001).

 

3rd Circuit refuses to assume error was harmless despite large downward departure. (865) Defendant’s offense level was 19, and the district court departed downward six levels to offense level 13, resulting in a range of 18-24 months. Relying on cases holding certain guideline errors harmless where the defendant also received a substantial downward departure, the govern­ment contended that the district court’s improper applica­tion of a two-level enhancement was harmless error. It contended that remand was unnecessary because defendant could not demonstrate that the district court would grant another six-level departure, rather than merely departing downward by four and placing defendant in offense level 13 again. The Third Circuit rejected this interpretation, which appeared to assign to defendants the burden of rebutting assumptions of harmless error. Under U.S. v. Williams, 503 U.S. 193 (1992), an appellate court should remand “unless [it concludes,] on the record as a whole, that … the error did not affect the district court’s selection of the sentence imposed,” a standard the government could not meet here. U.S. v. Thayer, 201 F.3d 214 (3d Cir. 1999).

 

4th Circuit holds that any error in drug quantity was immaterial. (865) Defendant argued that the district court erred in calculating the quantity of cocaine attribut­able to him for sentencing purposes. The Fourth Circuit found that any error in the drug quantity was immaterial. Defendant was sentenced as a career offender; thus his offense level was based on the statutory maximum penalty for the counts of conviction. It was undisputed that defen­dant was found with 187 grams of cocaine base at his arrest, which subjected him to a maximum penalty of life imprisonment. See 21 U.S.C. § 841(b)(1)(a) (offenses involving 50 or more grams of cocaine base require imprisonment of 10 years to life). Defendant’s offense level was therefore calculated as 37, with a criminal history category of VI. Because defendant was sentenced within the resulting imprisonment range of 360 months to life, any error in drug quantity was immaterial. U.S. v. Rolle, 204 F.3d 133 (4th Cir. 2000).

 

4th Circuit holds that possible two-level error in offense level was harmless. (865) Defendant argued that a two-level obstruction of justice enhancement was improper because he was attempting to procure an unsworn false state­ment, not a sworn false statement. The Fourth Circuit ruled that any error was harmless. Defendant was sentenced to life imprisonment based on an adjusted offense level of 47. An adjusted offense level of 43 or over requires a life sentence. Thus, even if the enhancement were in error, defendant’s sentence would not change. U.S. v. Lipford, 203 F.3d 259 (4th Cir. 2000).

 

4th Circuit finds that sentence enhancement may not be re­viewable if resulting sentence is within guideline range. (865) The 168-month sentence imposed upon defendant was at the bottom of the sentencing range for level 34, and at the high end of the sentencing range for level 32, which would have applied had the district court not added two points to defen­dant’s offense level for being an organizer.  The 4th Circuit noted that if the district court had stated that the sentence would have been the same regardless of which sentencing range ap­plied, then the sentence enhancement would not be subject to appellate review.  U.S. v. Smith, 914 F.2d 565 (4th Cir. 1990).

 

4th Circuit holds that when guideline ranges overlap the district court must find that the sentence would be the same under either of the ranges. (865) Defendant argued for a range of 72-87 months.  The government ar­gued for a range of 87-108 months. The court found it unnecessary to determine which guideline range was ap­plicable because it found that the overlap made this de­termination unnecessary.  He therefore sentenced the de­fendant to 87 months in custody. Defendant ap­pealed, and the 4th Circuit reversed.  The overlapping guidelines doctrine states that dis­putes as to ap­plicable sentencing guidelines ranges need not be resolved when the sentence imposed would be the same under either of the potentially applicable ranges.  However, a judge could not properly impose a sentence within an overlap unless he states that the sentence would have been the same under the alternative range.  Here, this was not the case and the sen­tence was remanded.  U.S. v. Willard, 909 F.2d 780 (4th Cir. 1990).

 

4th Circuit holds guideline sentence within sentencing range may not be reviewable. (865) The district court’s sentence was both at the low end of the enhanced level and the high end of the unenhanced range.  The Fourth Circuit stated that the sentence would not have been subject to review if the judge had stated that the sen­tence would have been the same under either range.  U.S. v. White, 875 F.2d 427 (4th Cir. 1989).

 

5th Circuit says error in criminal history points did not affect substantial rights. (865) The dis­trict court added two points to defendant’s criminal history under § 4A1.1(d) because he committed the offense while under an active revocation of probation bench warrant. For the first time on appeal, he argued that the bench warrant was not for an otherwise countable conviction. § 4A1.2(m) and (e)(2). Because the prior sentence was over 21 years old, the Fifth Circuit agreed that it was not countable, and thus the district court erred in assessing two criminal history points. However, the error did not affect defendant’s substantial rights. The 85-month sentence imposed fell inside both the correct and incorrect guideline range. In such a situation, courts “have shown considerable reluctance in finding a reasonable probability that the district court would have settled on a lower sentence.” Moreover, the district court rejected the defen­dant’s request for a downward departure, and did not sentence him at the low end of the incorrect guideline range, making it unlikely that the district court would have imposed a lower sentence had it used the proper guideline range. U.S. v. Blocker, 612 F.3d 413 (5th Cir. 2010).

 

5th Circuit holds that sentence was entitled to presumption of reasonableness even though imposed under miscalculated guideline range. (865) The district court improperly assessed a two-level enhance­ment, which increased defen­dant’s guideline range from 30-37 months to a range of 37-46 months. Defendant’s 37 month sentence, although imposed with refer­ence to an improperly calculated guideline range, nonethe­less fell within the correct guideline range. Under Fifth Circuit caselaw, a sentence within a properly calculated guideline range is presump­tively reasonable. See U.S. v. Alonzo, 435 F.3d 551 (5th Cir. 2006). The Fifth Circuit held that in situations such as this, in which the district court miscalculates the guide­line range yet imposes a sentence that falls within a properly calculated guideline range, the sentence enjoys a presumption of reasonable­ness. Defendant’s sen­tence remained presump­tively reasonable, and since defendant did not articulate any factors that suggested the sentence was not reasonable, the sentence was affirmed. U.S. v. Medina-Argueta, 454 F.3d 479 (5th Cir. 2006).

 

5th Circuit says sentence within proper guideline range was not plain error. (865) The district court erroneously refused to grant defendant a one point acceptance of responsibility reduction. With the reduction, his sentence range would have been 18 to 24 months. The 21-month sentence he received fell within this new range. The error was not harmless because there was no evidence or argument that the court would have imposed the same sentence regardless of the sentencing range. However, defendant’s objection to the PSR’s recommendations was untimely, not raising it until the day before his sentencing hearing, which was well beyond the prescribed 14-day period. Therefore, the Fifth Circuit reviewed defendant’s challenge to the denial of the one-point reduction only for plain error. Plain error review differs from the harmless error analysis because the question is not whether the district court would have chosen the same sentence absent the error, but whether it could have done so. Because the sentence imposed by the district court was within the proper sentencing range and could be reinstated on remand, the panel refused to correct the court’s error. U.S. v. Wheeler, 322 F.3d 823 (5th Cir. 2003).

 

5th Circuit holds failure to apply 2-level safety valve was plain error but did not affect substantial rights. (865) Defendant pled guilty to drug conspir­acy charges. He had an offense level of 33 and a criminal history category of I, but was subject to a ten-year mandatory minimum sentence. The district court granted the government’s motion for a one-level departure under § 5K1.1and an additional one-level “safety valve” departure under 18 U.S.C. § 3553(f). The court sentenced defendant to 108 months. For the first time on appeal, defendant argued that the district court should also have reduced his sentence by two levels for the separate “safety valve” in § 2D1.1(b)(4). This would have reduced his offense level to 30 with a guideline range of 97-121 months. The Fifth Circuit held that the district court plainly erred in not granting defendant the § 2D1.1(b)(4) “safety valve” reduction, because it is mandatory, not discretionary. However, the error did not affect his substantial rights because his 108-month sentence was within the 97-121 month range he would have received with the reduction. U.S. v. Leonard, 157 F.3d 343 (5th Cir. 1998).

 

5th Circuit holds reliance on PSR without supporting documents was harmless error. (865) Defendant was convicted of marijuana conspiracy. His PSR held him responsible for 10,074 kilograms of marijuana, based primarily on information in various debriefings, recorded meetings and telephone calls, and on the amount of marijuana seized in the different arrests of co-conspirators. Defendant challenged the drug quantity finding, since the debriefings, recorded meetings and telephone calls upon which the probation officer relied were not attached to the PSR. The Fifth Circuit held that any error in relying on the PSR was harmless, because even if the sentence were based only on amounts proven at trial, it would not change. Defendant conceded that the government proved he was responsible for 4,802 kilograms at trial. This would result in an offense level of 38, which when added to an obstruction of justice enhancement, would result in a sentencing range of 292-365 months. Defendant’s 360-month sentence fell within this range. U.S. v. Narviz-Guerra, 148 F.3d 530 (5th Cir. 1998).

 

5th Circuit remands to clarify if court would have imposed same sentence absent miscalculation. (865) The district court found that defendant fell within criminal history category IV, resulting in a guideline range of 188-235 months. The court imposed a 192-month sentence. Defendant should have been placed in criminal history III, with a guideline range of 168-210 months. The government argued that the error was harmless given the overlap in ranges. The Fifth Circuit held remand was required since the government did not meet its burden of demonstrating that the district court would have imposed the same sentence absent the erroneous factor. Mere speculation as to the sentencing judge’s motive does not meet the burden imposed on the government. The government must point to evidence in the record that the district court had a particular sentence in mind and would have imposed it, notwithstanding the error in determining defendant’s guideline range. U.S. v. Huskey, 137 F.3d 283 (5th Cir. 1998).

 

5th Circuit finds any error in offense levels was harmless due to grouping rules. (470) Defendant was convicted of mail fraud and other crimes for submitting false medical claims to insurers and the government. He challenged the court’s finding that his obstruction of justice conviction involved a threat of physical injury and that the financial transaction offenses involved an obstruction of justice. The Fifth Circuit found that any error was harmless due to the grouping rules. The district court grouped defendant’s crimes into (1) a mail fraud group, (2) an obstruction of justice group and (3) a financial transaction group. Under § 3D1.4, the combined offense level was the offense level of the highest group, increased by “points” for the other two groups. The mail fraud group had the highest level of 30. Any addition would have resulted in a guideline range higher than the highest of the statutory maximums. Thus, the combined offense level was effectively limited to 30 by the statutory maximum, and the base offense levels for the obstruction of justice and financial transactions groups played no role in determining defendant’s guideline range. U.S. v. Sidhu, 130 F.3d 644 (5th Cir. 1997).

 

5th Circuit approves loss equal to full amount of loan obtained by fraudulent statement. (865) Defendant’s PSR calculated the loss from his offense as $89,000, the full amount of the loan he obtained using a false statement. After auctioning the property, HUD actually incurred a loss of only $35,000. Defendant argued that his counsel’s failure to object to the PSR’s use of the higher amount constituted ineffective assistance. The Fifth Circuit disagreed, finding no prejudice resulted. Under note 7(b) to § 2F1.1, the loss is the greater of the actual or intended loss to the victim. It is proper to calculate loss based on the risk engendered by the defendant’s criminal conduct, even where the actual loss is lower. Even if defense counsel had objected to use of the full loan amount, it would have been within the district court’s discretion to use the full amount as loss. Moreover, even if the court had accepted the objection, the failure to make the objection did not prejudice defendant. Defendant’s 30-month sentence fell within the range that would have been applicable even if the court had reduced the loss as suggested by defendant. U.S. v. Brewer, 60 F.3d 1142 (5th Cir. 1995).

 

5th Circuit refuses to review where sentence fell in middle of proposed guideline range. (865) Defendant challenged the court’s imposition of an obstruction of justice enhancement and its failure to award him an acceptance of responsibility reduction. The Fifth Circuit refused to review the matter since defendant’s 12-month sentence (the statutory maximum) fell within the middle of the 8-14 month range that would have applied if the district court had made both findings favorable to defendant. Defendant could not demonstrate that these issues would have resulted in his receiving a lesser sentence. U.S. v. Huckaby, 43 F.3d 135 (5th Cir. 1995).

 

5th Circuit remands where no “persuasive evidence” that court would have imposed same sentence under corrected guideline range. (865) Defendant received an 188 month sentence for drug charges. The district court made insufficient findings to support its enhancement for obstruction of justice. The government argued that resentencing was unnecessary, since without the enhancement, defendant would have a guideline range of 151 to 188 months. The 5th Circuit remanded, since there was no “persuasive evidence” to suggest that the district court, which imposed the lowest sentence available under the incorrect guideline, would have imposed the maximum sentence under the correct range. U.S. v. Cabral-Castillo, 35 F.3d 182 (5th Cir. 1994).

 

5th Circuit refuses to hear claim that would not change criminal history category. (865) Defendant claimed a 1978 auto theft conviction should not be included in his criminal history. The 5th Circuit refused to review the issue, since it would not affect his sentence. Even if defendant were correct, his criminal history score would only be reduced from 12 to 10, leaving him in the same criminal history category. U.S. v. Jackson, 22 F.3d 583 (5th Cir. 1994).

 

5th Circuit refuses to consider claim that would not affect defendant’s offense level. (865) Defendant argued that the district court should only have considered the equivalent of 174,000 kilograms of marijuana in setting his offense level.  The 5th Circuit refused to consider defendant’s claim, since it would not affect the calculation of his offense level.  Under the 1987 version of the guidelines, any quantity over 10,000 kilograms of marijuana would result in the highest offense level at the time (36).  U.S. v. Martinez-Moncivais, 14 F.3d 1030 (5th Cir. 1994).

 

5th Circuit rejects claims where they would not change sentence. (865) Defendant was sentenced to life imprisonment for his participation in a conspir­acy involving 13,600 kilograms of cocaine.  Defen­dant argued he could not be held responsible for the entire 13,600 kilograms, and that his criminal his­tory was calculated incorrectly.  The 5th Circuit found that even if he were correct, it would not change his sentence.  Evidence at trial established that six shipments of cocaine, each consisting of 600 to 650 kilograms, were delivered to defendant.  If defendant were only held accountable for 3,600 kilo­grams, his base offense level under § 2D1.1 would still be 42.  With a four level addition under § 2D1.5 for his 21 U.S.C. § 848 conviction, defendant would still have an offense level of 46.  The maximum under the guidelines is 43, resulting in a sentence of life imprisonment, whether his criminal history category was I, as urged by defendant, or II, as determined by the district court.  U.S. v. Gonzalez-Balderas, 11 F.3d 1218 (5th Cir. 1994).

 

5th Circuit adopts rule for overlapping guideline ranges. (865) The district court incorrectly determined defendant’s guideline range was 51 to 63 months, and sentenced him to 57 months.  In fact, his guideline range was 46 to 57 months.  The 5th Circuit held that when a sentence is a result of an incorrect application of the guidelines, but the sentence is still within the proper guideline range, remand is necessary, unless the appellate court is persuaded that the district court would have imposed the same sentence absent the erroneous factor.  Here, remand was necessary, since it was not clear from the record that the court would impose the same sentence.  U.S. v. Tello, 9 F.3d 1119 (5th Cir. 1993).

 

5th Circuit modifies sentence where court intended to sentence at top of range. (865) The district court erroneously refused to grant defendant an additional one level reduction for acceptance of responsibility, thus increasing his guideline range from 24 to 30 months to a range of 27 to 33 months.  Defendant received a 33-month sentence.  The 5th Circuit did not remand the case, but instead modified the sentence to a term of 30 months, since it was apparent that the sentencing court wanted to incarcerate defendant for the maximum term permitted under the applicable guideline range without an upward departure.  U.S. v. Mills, 9 F.3d 1132 (5th Cir. 1993).

 

5th Circuit refuses to address drug quan­tity claim where sentence would be un­changed. (865) The 5th Circuit refused to address defendant’s challenge to the amount of drugs for which he was held accountable, since even if correct, it would only reduce de­fendant’s offense level from 44 (one level above the highest level in the sentencing table) to 43.  The guidelines sentence for a defendant with a total offense level of 43 and a criminal history category of II is life impris­onment.  Therefore, any error was harmless. U.S. v. Montoya-Ortiz, 7 F.3d 1171 (5th Cir. 1993).

 

5th Circuit holds mistake in criminal his­tory score was harmless. (865) The district court awarded three criminal history points to a prior con­viction that should have yielded only two points.  The 5th Circuit held the er­ror to be harmless.  It did not change defen­dant’s criminal history category, and the dis­trict court’s sentence already was the lowest one within the applicable guidelines range.  U.S. v. Bryant, 991 F.2d 171 (5th Cir. 1993).

 

5th Circuit finds error was harmless where magis­trate would have imposed same sen­tence. (865) Defendant contended that she was entitled to a downward adjustment under section 2K1.5(b)(3).  The 5th Circuit found any error to be harmless since the magistrate stated that he would have imposed the same sentence even if he thought defendant was enti­tled to the reduction.  U.S. v. Garrett, 984 F.2d 1402 (5th Cir. 1993).

 

5th Circuit remands where it was un­clear whether court would have de­parted to same sen­tence. (865) The district court in­correctly calculated de­fendant’s criminal his­tory score as 36 rather than 21.  Either score placed him in criminal history cate­gory VI.  This re­sulted in a guideline range of 24 to 30 months.  Because defen­dant had more than dou­ble the number of points neces­sary to place him in criminal history category VI, the district court de­parted upward by doubling the imprisonment range of 24 to 30 months to a range of 48 to 60 months.  The court then im­posed a 48-month sentence.  The 5th Circuit remanded because it was unclear whether the court would have departed up­ward to the same extent if it had cor­rectly calculated defendant’s crimi­nal history score as 21.  U.S. v. Corley, 978 F.2d 185 (5th Cir. 1992).

 

5th Circuit remands even though same sentence might be imposed. (865) De­fendant originally had a guide­line range of 30 to 37 months, and received a 30-month sen­tence.  On appeal, the 5th Circuit re­versed an enhancement for ob­struction of justice, which re­duced de­fendant’s guideline range to 24 to 30 months.  The government contended that no re­mand was necessary because the dis­trict court would have imposed the same sen­tence even without the im­proper enhance­ment.  The 5th Circuit remanded be­cause it was not convinced the district court would have imposed the same sentence.  Although the dis­trict court asked to be reminded what sen­tence it gave to a co-defendant, and all three conspirators re­ceived 30-month sen­tences, this was not sufficient to con­clude that defendant’s sentence would have been the same without the im­proper enhancement.  U.S. v. Surasky, 974 F.2d 19 (5th Cir. 1992).

 

5th Circuit refuses to remand where pos­sible error in criminal history did not change criminal history category. (865) The district court may have erro­neously added three points to defendant’s criminal history rather than one for three related prior convictions.  Nonetheless, the 5th Circuit re­fused to remand for resentencing because it concluded that the district court would still impose the same sen­tence.  Even if defen­dant’s criminal history points were reduced from 12 to ten, he still would fall within criminal history category V and thus the al­leged error had no effect on defendant’s guideline range.  The district court’s written statement of rea­sons did not suggest that the district court’s choice of a sentence within de­fendant’s guideline range was in­fluenced by his criminal history points. The district court was not under any factual misapprehension concerning the prior convictions, and it was undis­puted that such offenses could properly be consid­ered in determining defendant’s sentence within his guideline range.  U.S. v. Johnson, 961 F.2d 1188 (5th Cir. 1992).

 

6th Circuit affirms where challenged drugs did not change offense level. (865) Defendant pled guilty to two counts of possessing over 500 grams of metham­phetamine. He argued that the certain drugs found during a search of his truck should have been suppressed, and therefore should not have been used in his sentencing calculation. The Sixth Circuit found the issue without merit since it had already upheld the validity of the search. Moreover, deleting the meth found in defendant’s truck would not have changed his offense level. Even without the 500 plus grams recovered from his truck, defendant was still responsible for over 18 kilograms of methamphetamine. His offense level of 36 applies in cases involving at least 10 kilograms but less than 30 kilograms of meth. U.S. v. Lumpkin, 159 F.3d 983 (6th Cir. 1998).

 

6th Circuit says any error in drug quantity calculation was harmless where sentencing range would not change. (865) Defendant challenged the district court’s finding that he was responsible for between 152 to 243 grams of crack cocaine. Defendant argued that he only possessed between 74.69 and 133.69 grams. The Sixth Circuit held that any error in the drug quantity calculation was harmless because it would not change defendant’s sentencing range. The district court found that defendant qualified as a career offender. The government only needed to prove that defendant possessed 50 grams of cocaine base and qualified as a career offender to justify his 420-month sentence. U.S. v. Charles, 138 F.3d 257 (6th Cir. 1998).

 

6th Circuit finds any error in offense levels was harmless due to grouping rules. (865) Defendant was convicted of mail fraud and other crimes for submitting false medical claims to insurers and the government. He challenged the court’s finding that his obstruction of justice conviction involved a threat of physical injury and that the financial transaction offenses involved an obstruction of justice. The Sixth Circuit found that any error was harmless due to the grouping rules. The district court grouped defendant’s crimes into (1) a mail fraud group, (2) an obstruction of justice group and (3) a financial transaction group. Under § 3D1.4, the combined offense level was the offense level of the highest group, increased by “points” for the other two groups. The mail fraud group had the highest level of 30. Any addition would have resulted in a guideline range higher than the highest of the statutory maximums. Thus, the combined offense level was effectively limited to 30 by the statutory maximum, and the base offense levels for the obstruction of justice and financial transactions groups played no role in determining defendant’s guideline range. U.S. v. Sidhu, 130 F.3d 644 (5th Cir. 1997).

 

6th Circuit upholds its jurisdiction even where defendant’s sentence is within proposed new guideline range. (865) The district court calculated defendant’s sentencing range at 6 to 12 months, and imposed a six month sentence.  Defendant argued that his offense level was incorrectly calculated.  The resulting guideline range, using his proposed offense level, would be zero to six months.  The 6th Circuit held that it has jurisdiction over a defendant’s appeal when the defendant identifies a specific legal error in the sentence, and alleges that the guidelines have been incorrectly applied, even though the sentence is within the guideline range proposed by the defendant.  A district court’s sentencing determination is impacted by its understanding of the appropriate guideline range.  The actual sentence imposed in such a case is not material because it is the district court’s application of the guidelines to arrive at the sentencing range that is at issue, not that court’s discretionary choice of a sentence within that range.  U.S. v. Lavoie, 19 F.3d 1102 (6th Cir. 1994).

 

6th Circuit upholds same sentence im­posed after remand where it fell within new guideline range. (865) Defendants originally re­ceived sentences at the bottom of their guideline ranges.  At the initial sen­tencing, the district court said that there was “absolutely nothing to indicate to this court that the minimum of the applicable guideline range is inap­propriate for sentencing pur­poses.”  On defendants’ first appeal, the 6th Circuit reversed a two level en­hancement for obstruction of justice, and remanded for re­sentencing.  At resentencing, the court im­posed the same sentences for both defen­dants, which were now at the top of their newly-calculated guideline ranges.  The 6th Cir­cuit affirmed, ruling that two 2nd Circuit cases relied upon by defendants did not re­quire a sentence at the bottom of the new guideline range.  The judge was obviously satisfied that the earlier sentences were ap­propriate regardless of where they fell within the re­computed range.  The defendants’ sen­tences are not otherwise appealable under 18 U.S.C. section 3742(a).  U.S. v. Sanchez, 960 F.2d 610 (6th Cir. 1992).

 

7th Circuit orders limited remand based on error in converting pounds to kilo­grams. (865) When converting the cash found at defendant’s house to mari­juana, defendant’s PSR treated one pound as equivalent to 2.2 kilograms, which was backwards: one kilogram is 2.2 pounds. The error, which no one noticed, increased defendant’s relevant conduct from 370 kilograms of mari­juana to 490, and his offense level from 23 to 25. The PSR calculated a guideline range of 70-87 months; the correct range was 57-71 months. Defendant received a 70-month sentence, which fell within both ranges. The Seventh Circuit ordered a limited remand so that the judge could explain whether the error in converting pounds to kilograms affected its exercise of discretion in sentencing. If it did, then the court will remand for a full sentencing; if it did not, the panel will affirm defendant’s sentence. U.S. v. Billian, 600 F.3d 791 (7th Cir. 2010).

 

7th Circuit holds that any error in crack conversion was harmless. (865) The district court attributed 1.5 kilograms of crack cocaine to defendant, which mandated a base offense level of 38, and resulted in a guideline range of 360 months to life. The district court sentenced defendant to 360 months. The court did not make any specific findings about the cocaine quantity it attributed to defendant. The government offered two arguments supporting the court’s drug quantity attribution. The first was that defendant converted to crack much of the 30 kilograms of powder cocaine provided to him by Bonner. The second was that Bonner provided to defendant some cocaine that was already in crack form. The Seventh Circuit ruled that the government’s failure provide evidence of a conversion ratio precluded it from attributing to defendant any specific amount of crack. Although Bonner testified that defendant converted to crack some of the cocaine that Bonner provided to him, there was no reliable evidence indicating the amount of cocaine defendant converted to crack. However, Bonner also testified that after October he began to cook cocaine into crack on his own before delivering it to defendant. The total amount of crack attributable from this testimony was 903 grams. The base offense level for offenses involving at least 500 grams of crack but less than 1.5 kilograms is 36, which would also result in a range of 360 months to life. Since defendant received a 360-month sentence, the Seventh Circuit ruled that any error by the district court was harmless. U.S. v. Stott, 245 F.3d 890 (7th Cir. 2001).

 

7th Circuit refuses to decide whether tax loss can be reduced by unclaimed deductions. (865) Defendant failed to report the revenues from illegal video poker games on his income tax returns. The district court calculated the tax loss as $120,769.09. At sentencing, defendant’s accountant testified that he would have depreciated the video poker machines had he known of them, resulting in a deduction of more than necessary to drop the tax loss to a lower offense level. See U.S. v. Martinez-Rios, 143 F.3d 662 (2d Cir. 1998). The Seventh Circuit found it unnecessary to decide whether unclaimed deductions may be considered in calculating tax loss, since it would not have changed defendant’s sentence. The sentencing court indicated that if it had accepted defendant’s argument and reduced his offense level by one, it would have sentenced him to the high end of the range for that level, which was 41 months. Because the maximum sentence for defendant’s offense was three years and the district court refused to impose consecutive sentences, the court would still have imposed a 36-month sentence. Moreover, the district court found as a matter of fact that defendant had not established that he would have taken the deductions. U.S. v. Utecht, 238 F.3d 882 (7th Cir. 2001).

 

7th Circuit holds that defendant used sophisticated means in tax evasion scheme. (865) Defendant failed to report the revenues from illegal video poker games on his income tax returns. The district court imposed a two-level increase under § 2T1.1(b)(2) for sophis­ticated conceal­ment. The Seventh Circuit affirmed, since at least some of the conduct relied on by the district court was sufficiently above the standard tax fraud case to warrant the enhancement. These activities included hiding the existence of the video poker machines and proceeds from his accountants, fabricating receipts to account for the proceeds from the video poker machines and including these in the corporate records, generating false 1099s that did not include the payments to bar owners from the revenues of these machines, causing these owners to file false personal property tax returns, and generating false personal property tax returns. U.S. v. Utecht, 238 F.3d 882 (7th Cir. 2001).

 

7th Circuit holds that improper criminal history point may have affected court’s departure decision. (865) The district court improperly assessed a crimi­nal history point. The point did not affect defendant’s criminal history category because his other convictions already had placed him in Category II. Defendant challenged the district court’s refusal to depart downward. Although such claims are ordinarily not reviewable on appeal, the Seventh Circuit found that the erroneous assessment may have affected the district court’s departure decision. Because it could not be certain that the error that led to the assessment of the extra point did not also affect the court’s departure decision, the panel vacated and remanded for resentencing. U.S. v. Vargas, 230 F.3d 328 (7th Cir. 2000).

 

7th Circuit holds that challenge to gun enhancement was moot given receipt of statutory minimum sentence. (865) Defendant challenged his receipt of a two-point enhancement under § 2D1.1(b)(1) for possession of a gun. The Seventh Circuit found the challenge moot, since defendant received the statutory minimum sentence for a person with a prior felony drug conviction who is subsequently convicted of an offense involved more than 50 grams of crack. Defendant did not dispute that he was eligible for this statutory minimum or that he in fact received the statutory minimum. U.S. v. Williams, 216 F.3d 611 (7th Cir. 2000).

 

7th Circuit holds that miscalculation of criminal history not plain error. (865) Defendant argued for the first time on appeal that his 1992 sentence was not a “prior sentence” that should have been included in his criminal history, but part of the current offense. The Seventh Circuit held that miscalculation of defendant’s criminal history did not survive the plain error test. In U.S. v. Dillon, 905 F.2d 1034 (7th Cir. 1990), the court held that where two Guidelines ranges overlap and the sentence imposed would have been the same regardless of which range was applied, the technical dispute over which range to apply may be left unresolved. Because defendant’s base offense level was 43, which carries a life sentence, his criminal history category was irrelevant. U.S. v. Frazier, 213 F.3d 409 (7th Cir. 2000).

 

7th Circuit says any error in criminal history score was harmless error. (865) The district court calculated defendant’s criminal history score to be 13, which placed him in category VI. He challenged on appeal the use of three prior convictions, which if excluded, would have given him a score of nine and a criminal history category of IV. The Seventh Circuit found any error harmless, because with defendant’s base offense level of 38, the guideline range for criminal history category IV was the same as for criminal history category VI, 360 months to life. Defendant was sentenced to 360 months’ imprison­ment, the bottom of this range. U.S. v. Turner, 203 F.3d 1010 (7th Cir. 2000).

 

7th Circuit finds judge would have imposed same sentence regardless of criminal history. (865) Defendant argued that the district court should not have added a point to his criminal history score for a violation of his parole that he committed after the current offense but before sentencing. Without that extra point, defendant would have been placed in criminal history category II, rather than III. The Seventh Circuit found it unnecessary to resolve this dispute, since the sentencing judge made it clear that he would have imposed the same 30-month sentence regardless of which criminal history category applied. Category II would have subjected defendant to 24-30 months’ imprisonment. Category III resulted in a range of 27-33 months. Where two guidelines ranges overlap and the sentence imposed would have been the same regardless of which range was applied, the technical dispute over which range to apply may be left unresolved. U.S. v. Dillon, 905 F.2d 1034 (7th Cir. 1990). In the present case, the judge specifically said that he would have sentenced defendant to the high end of the lower range, and in imposing a sentence of 30 months, told defendant “[i]n effect, you’re not being penalized for this odd circumstance of the revocation occurring after the trial in this case, and in fact, after the original sentencing hearing in this case.” U.S. v. Howard, 179 F.3d 539 (7th Cir. 1999).

 

7th Circuit directs resentencing for ministerial error in applying firearm enhance­ment. (865) The district court mistaken­ly increased defendant’s offense level by three rather than two for the number of firearms involved in his crime. The offense involved seven firearms, and under § 2K2.1(b)(1)(B), that number of weapons warrants only a two-level increase. The 37-month sentence imposed was in the middle of defendant’s old guideline range and at the top of defendant’s new guideline range of 30-37 months. The Seventh Circuit remanded since the error, although possible a ministerial one, was one of clear consequence. U.S. v. Wilson, 169 F.3d 418 (7th Cir. 1999).

 

7th Circuit vacates despite overlapping ranges where criminal history included convictions more than 10 years old. (865) Defendant argued, for the first time on appeal, that the district court erroneously included in his criminal history theft convictions that were imposed more than 10 years before the instant offense. The 7th Circuit agreed that including the thefts in defendant’s criminal history was plain error. Defendant only had a criminal history score of III and a sentencing range of 151 to 188, rather than a score of IV and a range of 168 to 210 months. A sentence based on an incorrect guideline range is an error affecting substantial rights and can constitute plain error. Although defendant’s 168-month sentence fell within his corrected guideline range, the court still remanded since there was no reason to believe that the error did not affect the district court’s sentence selection. U.S. v. Wallace, 32 F.3d 1171 (7th Cir. 1994).

 

7th Circuit says Illinois supervision order was not a prior sentence because no adjudication of guilt. (865) The district court imposed one criminal history point under section 4A1.1(c) for a prior sentence of supervision and two additional points under section 4A1.1(d) because he committed his instant offense while under that sentence.  This placed defendant in criminal history category II.  The 7th Circuit reversed, holding that the Illinois order of supervision was not a “prior sentence” under section 4A1.2(a)(1) because there was no adjudication of guilt.  A stipulation to facts supporting the charge did not equate with an adjudication of guilt.  The order counted as a diversion from the judicial process without a finding of guilt under section 4A1.2(f).  However, remand was unnecessary, because even if defendant fell within category I, due to the application of a mandatory minimum 60-month sentence, the district court would not be able to reduce his sentence below the 60-month sentence he received.  U.S. v. Kozinski, 16 F.3d 795 (7th Cir. 1994).

 

7th Circuit reviews possible sentenc­ing er­rors even though sentence fell within cor­rected guide­line range. (865) The district court determined that defendant had an of­fense level of nine with a guide­line range of six to 12 months.  The court imposed a six-month sentence.  Defendant argued that his ad­justed offense level was four and his guide­line range was zero to six months.  The 7th Circuit rejected the government’s claim that the choice of offense levels was irrelevant since the sentence chosen by the dis­trict court fell within both guideline ranges.  An ap­pellate court may be confident that the choice of range did not affect the sen­tence when the district judge says so.  But here, the judge said nothing on this issue, and the ap­pellate court doubted that the offense level had no effect on the sentence, since six months was the floor of the range the court used and the pin­nacle of the range defendant proposed. U.S. v. Mount, 966 F.2d 262 (7th Cir. 1992).

 

7th Circuit affirms upward departure even though it should have been a criminal his­tory departure. (865) De­fendant was con­victed of bank fraud after submitting two fraudulent loan applica­tions to two dif­ferent lenders.  The 7th Circuit af­firmed the district court’s two level up­ward departure in offense level based on defendant’s ex­tensive his­tory of similar fraud­ulent conduct.  Defendant had es­caped the conse­quences of much of this fraud by persuad­ing his par­ents and friends to pay his debts.  De­fendant had a pat­tern of seeking to acquire expen­sive goods and ser­vices by fraudulent means and without any means to pay for them.  Although the court should have more properly in­creased defen­dant’s criminal history rather than of­fense level, the appellate court did not re­mand for re­sentencing be­cause the sentence imposed was within the range that would have applied had defendant’s criminal history been prop­erly increased.  U.S. v. De Felippis, 950 F.2d 444 (7th Cir. 1991).

 

7th Circuit holds that overlapping guideline ranges made resentencing unnecessary. (865) Although it found that the sentencing court had erroneously calcu­lated the defendant’s criminal history level, the 7th Cir­cuit ruled that because the sentence actually imposed fell within the correct range there was no need to re­mand the case for resentencing.  The court relied upon the Guidelines, Chapter One, Part A, Introduc­tion 4(h), which stated that the overlapping of the ranges was in­tended to “discourage unnecessary litigation.”  The court found that it was unnecessary to resolve dis­putes as to which offense level would be cor­rect as long as it was reasonable to conclude that the same sentence would have been im­posed irrespective of the outcome of the dis­pute.  The court found that in this case, it was reason­able to assume that the sen­tence im­posed would have been the same under either of the two ranges.  U.S. v. Dillon, 905 F.2d 1034 (7th Cir. 1990).

 

8th Circuit says any error in applying use of minor enhancement was harmless. (865) Defendant participated in an extensive drug conspiracy to distribute cocaine base in Cedar Rapids, Iowa. He challenged a two-level enhance­ment for use of a minor. The Eighth Circuit found it unnecessary to address the challenge because any potential error would have been harmless. As defendant conceded, even if he were successful on this issue, his guideline range would remain unchanged at 360 months to life. U.S. v. Bolden, 622 F.3d 988 (8th Cir. 2010).

 

8th Circuit finds any error in increase for sadistic material was harmless. (865) Defen­dant pled guilty to conspiracy and production of child porno­graphy. He argued for the first time on appeal that the district court erred in imposing a § 2G2.1(b)(4) increase for sadistic or masochistic or violent material because the child pornography he produced was not sadistic or violent. He contended that the possession of sadistic images produced by others was not relevant conduct for his produc­tion offenses. The Eighth Circuit found it unnecessary to resolve this difficult question, ruling that any error in applying the sadistic material enhancement was harmless. At sentenc­ing, the district court explicitly stated that “the ultimate sentence of 470 months would be the same even without the four-level increase for … sadistic images and other depictions of violence.” The district court’s explicit statement rendered harmless any pro­cedural error in applying § 2G2.1(b)(4). U.S. v. Shuler, 598 F.3d 444 (8th Cir. 2010).

 

8th Circuit finds any error in calculating criminal history harmless where court would have imposed same sentence. (865) Defendant received four criminal history points for several underage convictions for possession of alcohol, committed when he was 18-21 years old. He argued that the convictions were “similar to” juvenile status offenses and thus should be excluded from his criminal history under §4A1.2(c)(2). The Eighth Circuit found it unnecessary to decide this issue, finding that any error was harmless. Without these four criminal history points, defendant’s guideline range would have been 97-121 months. This range overlapped with the 120-month sentence actually imposed by the district court. The district court indicated that it would have imposed the same 120-month sentence under either calculation of the guideline range, and thoroughly set forth the reasons for selecting a sentence of 120 months. U.S. v. Johnston, 533 F.3d 972 (8th Cir. 2008).

 

8th Circuit holds that court could not include counterfeit securities involved in scheme before defendant realized it was fraudulent. (865) On March 6, customs officer intercepted a package mailed to defendant from a nation in West Africa that contained 56 fraudulent securities. On March 24, defendant received a Fed Ex package containing nine pre-addressed envelopes. He was arrested after he mailed them and authorities discovered that the envelopes contained counterfeit money orders with a face value of $52,320. The Eighth Circuit held that it was error for the district court to include the March 6 fraudulent securities in defendant’s loss calculation, since there was no evidence that defendant knew he was involved in a fraudulent scheme. Although there was evidence that defendant was expecting to receive a package in early March, there was no evidence that defendant knew that the package contained counterfeit securities. On March 26, he received an email advising him that the money orders were fake. Thus, the district court should not have included the money orders seized on March 6 in the total amount of loss. U.S. v. Onwumere, 530 F.3d 651 (8th Cir. 2008).

 

8th Circuit holds that sentence within overlap of two ranges was not reversible error. (865) Defendant argued that he should have received a three-level acceptance of responsibility reduction instead of the two-level one he received. See U.S.S.G. § 3E1.1.(b). The Eighth Circuit found that even if defendant was correct, his sentence would not change. If it is clear that the sen­tencing court would have imposed the same sentence regardless of whether a defendant’s argument ultimately prevailed, there is no reversible error. Here, the government requested a sentence that would be proper “regardless of whether the Defendant should have received [the] third level of acceptance.” It was clear the district court honored this request. When the government attorney commented that the 188-month sentence imposed was within the overlap between the two possible ranges, the court responded that it was “intentional,” and that it intended to sentence defendant to a higher sentence, but it took into consideration the government’s arguments. U.S. v. Harris, 390 F.3d 572 (8th Cir. 2004).

 

8th Circuit declines to review where one less criminal history point would not change category. (865) Defendant argued that the district court erred in adding one point to his criminal history score for driving a motorcycle without being authorized to do so. However, with or without the excluded point, defendant’s criminal history placed him in category VI. Thus, the applicable guideline range urged by defendant was no different than that used by the district court. Defendant argued that the issue was reviewable because the district court did not expressly state that it would have imposed the same sentence if incorrect about the disputed point. The Eighth Circuit disagreed. If this case involved two overlapping guideline range, defendant’s argument would be more persuasive. However, the guideline range urged by defendant was exactly the same as that used by the district court in determining his sentence. As such, there was no real concern that his sentence would have been different absent the alleged mistake. Also, statements made by the district court suggested that defendant’s sentence would have been the same had the disputed point been excluded. U.S. v. Tiger, 223 F.3d 811 (8th Cir. 2000).

 

8th Circuit says substantial rights affected by error even though sentence was within true guideline range. (865) Although the PSR noted that defendant had a base offense level of 22, the probation officer placed “26” in the numerical column corresponding to defendant’s of­fense level. Defendant’s total offense level should have only been 25. Defendant did not object to the error in the PSR. The government argued that the error did not affect defendant’s substantial rights because the 120-month sentence he received fell within the guideline range of 110-137 months which would have applied absent the error. Given that the district court stated that it was sentencing defendant at the bottom of the applicable guideline range, the Eighth Circuit was unwilling to find that defendant’s substantial rights were not affected by the error. All of the reasons given by the district court for imposing a sentence at the bottom of the sentencing range (defendant’s coopera­tion, health, and criminal history) were present whether defendant’s range was 120-150 months or 110-137 months. U.S. v. Weaver, 161 F.3d 528 (8th Cir. 1998).

 

8th Circuit refuses to review enhancements where career offender’s sentence would not change. (865) Defendant was convicted of methamphetamine conspir­acy charges. He challenged several sentence enhance­ments which resulted in a total offense level of 42 and a guideline range of 360 months to life. The Eighth Circuit refused to review the validity of the enhancements because defendant’s sentence would be the same regard­less of the enhancements. As a career offender, defen­dant’s offense level was 37 and his criminal history category was VI. His appropriate sentencing range was 360 months to life, even without the enhancements. U.S. v. Maggard, 156 F.3d 843 (8th Cir. 1998).

 

8th Circuit refuses to hear acceptance of responsibility claim where sentence was already less. (865) Defendant argued that the district court erred in denying him a three-level reduction for acceptance of responsibility. The Eighth Circuit found it unnecessary to consider his claim because defendant’s 76-month sentence was less than the guideline range of 77-96 months that would have applied if he had received the reduction. U.S. v. Alaniz, 148 F.3d 929 (8th Cir. 1998).

 

8th Circuit reviews sentence even though it was within the range sought by defendant. (865) Defendant received a 21-month sentence for her part in a fraud conspiracy. She challenged a managerial role enhancement. The government claimed the enhancement was not reviewable because the 21-month sentence would still be within the guideline range defendant sought. The Eighth Circuit held that the enhancement was reviewable because the record as a whole did not suggest with sufficient certainty that the district court would have imposed the same sentence under the lower range. U.S. v. Mayer, 130 F.3d 338 (8th Cir. 1997).

 

8th Circuit refuses to review enhancement where court would have imposed same sentence without it. (865) The district court found defendant’s offense level was 20, which included an abuse of trust enhancement. The resulting sentencing range was 37-46 months. At sentencing, he had already served 16 months of a 37-month sentence on related charges. The district court departed downward and sentenced defendant to 25 months in prison to run concurrently with the 21 months remaining on his existing sentence. The Eighth Circuit held that any error in applying the abuse of trust enhancement was harmless since the district court would have imposed the same sentence even under defendant’s proposed offense level. When the court went through the mechanics of applying § 5G1.3, the abuse of trust enhancement in effect dropped out of the court’s sentencing calculations. U.S. v. Johnson, 117 F.3d 1010 (8th Cir. 1997).

 

8th Circuit has no authority where correction would not affect sentence. (865) Defendant challenged the district court’s refusal to grant him either a § 3E1.1 reduction or a § 3B1.2 reduction. The Eighth Circuit refused to review the matter because even if the court had granted both reductions, it would not affect defendant’s sentence. A mandatory minimum sentence of 10 years overrode the 78-98 month guideline range applicable without the corrections. There is no need to address an allegedly erroneous computation where a correction will not affect a defendant’s sentence. U.S. v. Guerrero-Cortez, 110 F.3d 647 (8th Cir. 1997).

 

8th Circuit says sentence within overlapping ranges not reviewable. (865) Defendant chal­lenged the district court’s finding that two of his prior convictions were not related under § 4A1.2. If the convictions were found to be related, defendant would have a criminal his­tory category of V instead of VI. The Eighth Circuit found that the issue was not reviewable since defendant’s sentence fell within the range urged by defendant and it was clear from the transcript that the judge would have imposed the same sentence regardless of whether defen­dant’s argument prevailed. The district court noted that its sentence was within the appro­priate guideline range regardless of whether defendant had a criminal history of V or VI. U.S. v. Williams, 74 F.3d 872 (8th Cir. 1996).

 

8th Circuit says error in granting one level acceptance reduction was harmless. (865) Under defendant’s plea agreement, the government agreed that defendant should receive a three-level reduction for acceptance of responsibility. Prior to sentencing, the government asserted that defendant was no longer entitled to the reduction because he had resumed his fraud activities while on release awaiting sentence. The district court granted a one-level reduction for acceptance of responsibility. Defendant argued that the one level reduction was error because § 3E1.1 only provides for a two or three level reduction. The Eighth Circuit found that remand was unnecessary, since the sentence imposed was within the correct range regardless of the one-point credit and the court was convinced that the district court would consider the same factors upon resentencing as it did at the original sentencing. Thus, any error was harmless. U.S. v. Cron, 71 F.3d 312 (8th Cir. 1995).

 

8th Circuit refuses to review criminal history score where defendant still subject to 240-month mandatory mini­mum. (865) Defendant argued that he should have been placed in criminal history category III, which would have resulted in a guideline range of 33-41 months, rather than category IV, which resulted in a range of 210-262 months. The Eighth Circuit refused to review the issue, since regardless of the criminal history category, defendant would still be subject to a mandatory minimum 240-month sentence. In either case, the district court would be required to impose, at the very least, a 240-month sentence, which it did. U.S. v. Jackson, 64 F.3d 1213 (8th Cir. 1995).

 

8th Circuit reviews sentence where court refused to say it would impose same sentence if calculation was wrong. (865) Defendant chal­lenged his criminal history calculation. The government argued that the sentence was unreviewable because defendant’s 135-month sentence fell within the guideline range that would be applicable if defendant prevailed. The Eighth Circuit held that the sentence was reviewable, since the district court refused to state on the record that it would impose the same sen­tence if defendant’s arguments concerning his criminal history later prevailed. A sentence that falls within two arguable guideline ranges is unreviewable only where it is clear that the sentencing court would have imposed the same sentence regardless of whether defendant’s argument for a lower guideline range ultimately prevailed. U.S. v. Johnson, 43 F.3d 1211 (8th Cir. 1995).

 

8th Circuit says criminal history challenge was mooted by downward departure. (865) Defendant argued that he was incorrectly placed in criminal history category II, rather than category I.  The government argued that the claim was moot, since with an offense level of 42, the applicable guideline range for all criminal history categories is 360 months to life.  The 8th Circuit refused to consider defendant’s claim, since the 330-month sentence imposed represented a downward departure from the applicable guideline range, regardless of defendant’s criminal history category.  Since the extent of the downward departure was not reviewable, defendant’s sentence was not reviewable.  U.S. v. Patterson, 20 F.3d 801 (8th Cir. 1994).

 

8th Circuit remands although invalid con­viction would not affect guideline range. (865) Defendant was convicted of multiple drug counts, but the 8th Circuit held one of the convictions invalid for failure to establish venue.  Although the invalidity of the convic­tion did not change defendant’s guidelines range, the court nevertheless remanded for resen­tencing since it was “not impossible that the trial court might have sentenced [defendant] at a different point in the applica­ble range had it not considered the convic­tion.”  U.S. v. Greene, 995 F.2d 793 (8th Cir. 1993).

 

8th Circuit rules that possible error in drug quan­tity determination was harmless. (865) De­fendant argued that his base offense level (BOL) was incorrectly based on 2,313.5 grams of cocaine in­stead of the 2,085.9 grams to which the parties stip­ulated.  He as­serted that this would have lowered his BOL from 32 to 30.  The 8th Circuit found that even if there was error, it was harmless.  First, the trial judge in fact used a BOL of 30, because after ad­justing the BOL upward by five levels, he arrived at an adjusted offense level of 35.  Second, it was plain the judge would have sentenced defendant to the same sentence even if the lower guideline range were used. U.S. v. Buchanan, 985 F.2d 1372 (8th Cir. 1993).

 

8th Circuit reviews adjustment even though sen­tence would be within new guideline range. (865) The government con­tended that the district court’s refusal to grant a reduction for acceptance of respon­sibility was not reviewable on appeal because defen­dant’s sentence would still be within the guideline range that would be applicable if de­fendant received the reduction.  Defendant received a 21 month sen­tence, and if he had received the acceptance of re­sponsibility re­duction his guideline range would have been 15 to 21 months.  The 8th Circuit found the is­sue was appealable because there was no certainty that the trial judge would have im­posed the same sentence if defendant had re­ceived the reduction. U.S. v. Kloor, 961 F.2d 1393 (8th Cir. 1992).

 

8th Circuit considers merits of appeal de­spite over­lapping ranges. (865) Defendant challenged the addi­tion of two criminal his­tory points which pushed him from criminal history category II to III.  Under category III, he had a guideline range of 292 to 365 months, while under category II, his guideline range would have been 262 to 327 months.  He received a sentence of 292 months.  De­spite the overlapping ranges, the 8th Circuit found that defendant’s claim was properly be­fore it, since if defendant prevailed and the case was remanded to the district court, he could get a lesser sentence.  U.S. v. Bailey, 955 F.2d 28 (8th Cir. 1992).

 

8th Circuit rules district court would have im­posed the same sentence regardless of criminal history er­ror. (865) Defendant was incorrectly placed in criminal history category IV, rather than category III.  His sen­tence of 360 months fell within the applicable guide­line range for both category III and IV.  The 8th Circuit re­fused to remand for resen­tencing, because it found that the district court would have imposed the same sen­tence regardless of the er­ror.  The district court had discussed defendant’s challenge to his criminal history calculation, and said it was questionable whether he should be placed in the higher category.  The court then noted that the 360-month sentence would be at the low end of the category IV range and at the high end of the category III range.  Therefore, it was clear that the dis­trict court selected a sentence it considered appropriate regardless of the ultimate disposition of defendant’s ob­jection.  U.S. v. Simpkins, 953 F.2d 443 (8th Cir. 1992).

 

8th Circuit rules enhancement not appealable where sen­tence would be within new guideline range. (865) Defendant challenged a two-level enhancement in his offense level for obstruc­tion of justice.  The enhance­ment increased guideline from 18-24 months to 24-30 months.  Defendant received a 24-month sentence.  The 8th Circuit found the enhancement was not appealable, since defendant’s sentence was within both guideline ranges.  U.S. v. ABC, Inc., 952 F.2d 155 (8th Cir. 1991).

 

8th Circuit refuses to address drug quan­tity issue which would not change base of­fense level. (865) De­fendant contended that it was improper to include in his base of­fense level 7.5 grams of cocaine base seized from people lo­cated in the basement of a house which defendant was en­tering when he was ar­rested.  The 8th Circuit re­fused to ad­dress this ar­gument, since it would not change his base of­fense level.  Defendant received an of­fense level of 32, for possessing between 50 and 150 grams of cocaine base.  The gov­ernment proved that defendant had 54.63 grams of co­caine base in his possession at the time of his arrest. U.S. v. Sparks, 949 F.2d 1023 (8th Cir. 1991).

 

8th Circuit refuses to review sentencing challenge where two guideline ranges overlap. (865) The 8th Cir­cuit refused to consider defendant’ claim that he was erro­neously given a two-point enhancement for being a leader.  The sentencing ranges with and without the two-point en­hancement over­lapped at the exact point of defendant’s sen­tence.  The dis­trict court explicitly noted that it would sen­tence defendant to the same sen­tence even without the challenged enhance­ment. U.S. v. Rias­cos, 944 F.2d 442 (8th Cir. 1991).

 

8th Circuit refuses to review for error where de­fendant’s sentence would not change. (865) Defendant con­tended that the district court in­correctly determined that he belonged in criminal history category II rather than I.  The 8th Circuit refused to review the merits of de­fendant’s argu­ment since it would not change his sen­tence.  His offense level would re­main unchanged at 40, resulting in an applica­ble guideline range of 292 to 365 months.  Defen­dant had re­ceived a sen­tence of 240 months, the statutory maximum.  U.S. v. Nash, 929 F.2d 356 (8th Cir. 1991).

 

8th Circuit refuses to review gov­ernment’s ap­peal be­cause defendant’s overall sentence would not change. (865) De­fendant was con­victed of several drug and firearms charges.  Defendant received a 70-month sen­tence on the drug charges, to run concurrently to the mandatory 15-year sen­tence he received on the firearms charge.  The government appealed the district court’s calcu­lation of defendant’s of­fense level for the drug charges and criminal history calcula­tion.  The 8th Circuit refused to re­view the issues.  Even if the government were successful, this would only increase de­fendant’s maximum guideline sen­tence for the drug charges to 115 months.  The 180-month sentence defendant actually re­ceived was more than this.  U.S. v. Gibson, 928 F.2d 250 (8th Cir. 1991).

 

8th Circuit determines it need not decide issue where result would not change applicable guideline range. (865) Defen­dant contended that it was improper for the district court to set his base level at 36 rather than 34 based upon an addi­tional 460 grams of cocaine for which he was not charged.  The 8th Circuit refused to consider the issue.  De­fendant’s offense level, after adjustments for obstruction of justice and his leadership role, would result in an offense level of either 42 or 40.  Combined with his criminal history score, both of­fense levels would result in a guideline range 360 months to life.  Defen­dant had received a 360 month sentence.  There­fore, it was unnecessary to consider defen­dant’s claim.  U.S. v. Yerks, 918 F.2d 1371 (8th Cir. 1990).

 

8th Circuit refuses to consider firearm en­hancement where finding would not directly affect defendant’s sen­tence. (865) Defendant argued that the district court im­properly con­cluded that he used a firearm in the course of a conspiracy to grow and distribute marijuana.  De­fendant conceded that because of the man­ner in which the district court grouped his money laundering convic­tion and his conspir­acy conviction for sentencing pur­poses, the district court’s conclusion as to the firearm did not directly affect his sentence.  Therefore, the 8th Cir­cuit refused to address the issue.  U.S. v. Engle­brecht, 917 F.2d 376 (8th Cir. 1990).

 

8th Circuit dismisses appeal where error in criminal history calculation would not affect sentence. (865) Defendant con­tended that it was improper to include in the calculation of his criminal history misdemeanor con­victions for assault and petty theft.  The misdemeanor convictions raised his criminal history from category II, with a guideline range of 87 to 108 months, to category III, with a guideline range of 97 to 121 months.  Since defendant’s sen­tence of 100 months was within both guideline ranges, his claim was not appealable.  U.S. v. Hoelscher, 914 F.2d 1527 (8th Cir. 1990).

 

8th Circuit refuses to consider arguments that would not af­fect defendant’s sentence. (865) Defendant pled guilty to aiding and assisting her husband in escaping from federal custody, which carried a total offense level of 21, and which yielded a guideline range of 37 to 46 months.  The district court departed downward and im­posed a 20 month sentence.  Defendant appealed on three grounds: that she should have been given a four point reduction for be­ing a minimal par­ticipant, that she should have been given a two point reduc­tion for accep­tance of responsibility and that it was improper to give her a three point enhancement because the crime in­volved an official victim.  The 8th Circuit determined that defendant could not prevail unless she won all three argu­ments, and since she was not entitled to the reduc­tion for ac­ceptance of responsibility, the court did not review her other claims.  U.S. v. Dugan, 912 F.2d 942 (8th Cir. 1990).

 

8th Circuit holds that alternative sentencing rendered ap­pellate issue moot. (865)  A drug defendant received an up­ward adjustment of two points for his role as an orga­nizer/leader and appealed.  The 8th Circuit found the issue moot.  The defendant was sentenced to a 57 months term, which fell within both the ad­justed or un­adjusted range.  Be­cause the sen­tence fell within a range subject to the court’s discretion the issue was moot.  U.S. v. O’Meara, 895 F.2d 1216 (8th Cir. 1990).

 

8th Circuit holds that error in calculating sen­tencing range required remand for resen­tencing. (865) Even though the defendant’s actual sentence was within the corrected range, the 8th Circuit held that remand was re­quired because the district court had sentenced at the bottom of what it thought was the applicable guideline range, “The district court might well have sentenced de­fendant to fewer months imprison­ment had it known that it could sen­tence him to the statutory minimum of 240 months.”  Thus remand for resentencing was appro­priate.  U.S. v. Luster, 889 F.2d 1523 (6th Cir. 1989).

 

9th Circuit finds no Blakely error when sentence after enhancement was in range for sentence without enhancement. (865) At defendant’s sentencing on drug charges, the court applied a two-level enhancement under § 2D1.1 because defendant possessed a firearm during the offense, even though that fact had not been found by the jury. The court sentenced defendant to 262 months. Defendant’s sentencing range with­out the enhancement was 210-262 months. The Ninth Circuit found that defendant’s sentence did not violate the rule announced in Blakely v. Washington, 124 S.Ct. 2531 (2004), because defendant could have received the 262-month sentence without the enhancement for possessing a firearm. U.S. v. Mayfield, 418 F.3d 1017 (9th Cir. 2004).

 

9th Circuit remands for resentencing even though correct sentence range overlapped mistaken sentence. (865) The district court erred in computing the sentence in this case. The correct guideline range, 108 to 135 months, overlapped with the mistaken guideline range, 121-151 months. Although the district judge could have given the defendant the same 120-month sentence, the Ninth Circuit said, “we cannot tell whether he would have.” The judge’s remarks at sentencing suggested the possibility that he might have exercised his discretion to sentence defendant at the bottom of the guideline range, whatever it turned out to be. Accordingly, the Ninth Circuit said it did not know whether the computation error was harmless—it might have added 13 months to his sentence. To enable the judge to exercise his discretion in correcting the computation, the case was remanded for resentencing. U.S. v. Calozza, 125 F.3d 687 (9th Cir. 1997).

 

9th Circuit remands even though district court could impose the same sentence on remand. (865) At sentencing, the district court rejected defendant’s argument for an offense level of 10, pointing out that even if it adopted defendant’s position, it would still have the ability to incarcerate him. On appeal, the Ninth Circuit agreed with the defendant that the offense level should have been 10, and remanded for resentencing despite the district court’s indication that it would impose the same sentence. Under U.S.S.G. § 5B1.1 the defendant could serve his jail time in community confinement or home detention. U.S. v. Allison, 86 F.3d 940 (9th Cir. 1996).

 

9th Circuit reverses despite overlapping ranges. (865) If the District Court had correctly valued the stolen items, defendants sentencing range would have been 18-24 months, instead of 21-27 months. The government argued that because defendant’s sentence of 24 months fell within the overlap of the two ranges, any sentencing error was harmless. The 9th Circuit disagreed, finding that it was unclear from the record whether the judge would have imposed a “midrange” sentence regardless of what that sentence was, or whether he felt a 24 month sentence was appropriate under any circumstance. Since there was no clear indication one way or the other, the government failed to carry its burden of persuading the court that the error was harmless. U.S. v. Robinson, 63 F.3d 889 (9th Cir. 1995).

 

9th Circuit finds error harmless where criminal history point would not change sentence. (865) The district court may have improperly included a second juvenile adjudication in defendant’s criminal history. However, the 9th Circuit found the error harmless because subtracting one point from defendant’s criminal history would not have changed defendant’s criminal history category, and he was sentenced to the minimum under the guidelines. Thus any error was harmless, and remand was unnecessary. U.S. v. Sanders, 41 F.3d 480 (9th Cir. 1994).

 

9th Circuit holds that selection of sen­tence within range is not reviewable on appeal. (865) Defendant challenged his 41 month robbery sentence.  Because he failed to ask the district court to depart down­ward, the 9th Circuit construed his challenge as an attack on the court’s discretionary selection of a sen­tence within a properly calculated range.  The court held that it lacked jurisdic­tion to hear such appeals.  U.S. v. Dixon, 952 F.2d 260 (9th Cir. 1991).

 

9th Circuit refuses to review dispute that would not af­fect sentence. (865) Defendant ar­gued that he should have been given a two level reduction for acceptance of responsibility and that the court incorrectly calculated his criminal history.  However, even if the district court had accepted defendant’s arguments, the sentencing range would have been above the actual sentence, be­cause the judge departed downward.  Therefore, since the disputes raised by the defendant would not impact his sentence, the court declined to address them.  U.S. v. Fuentes, 925 F.2d 1191 (9th Cir. 1991).

 

9th Circuit reverses sentence where it was un­clear whether the same sentence would have been imposed but for the er­ror. (865) The district court erred in giving the defendant credit for acceptance of responsibility, but sentenced him at the top of the guideline range.  The 9th Circuit reversed and remanded for a new sentencing hearing even though the same sentence could have been imposed if the judge had not given the defendant credit for acceptance of responsibility.  The court found rever­sal appropriate because it was not clear that the district court would have given the same sen­tence absent the er­ror.  U.S. v. Skill­man, 913 F.2d 1477 (9th Cir. 1990) amended, 922 F.2d 1370 (9th Cir. 1991).

 

9th Circuit declines to consider criminal his­tory argu­ment where it would not affect sen­tence. (865) Defen­dant ar­gued that the district court improperly added one criminal history point for a previous conviction.  How­ever, he failed to object in the district court, and the 9th Circuit declined to re­solve the question be­cause even if he were successful, “it would not affect the sentence.”  “If one point were sub­tracted from his criminal history score, [defendant] would still fall within criminal his­tory category II.”  There­fore, even if the district court erred, there was no “plain er­ror.”  U.S. v. Lopez-Cavasos, 915 F.2d 474 (9th Cir. 1990).

 

9th Circuit declines to review argument where judge would have imposed same sentence re­gardless. (865) In finding that the defendant obstructed justice, the district court stated that even if the two level increase for ob­struction of justice were not made, he would impose the same sentence within the guidelines.  Accord­ingly, the 9th Circuit ruled that review of the issue would be “purely advisory.”  Following prior Cir­cuit authority, the court declined to review defendant’s alle­gations of error.  U.S. v. Cooper, 912 F.2d 344 (9th Cir. 1990).

 

10th Circuit finds it unnecessary to address argument that would not change the ultimate sentence. (865) The guideline range calculated by the district court, 77-96 months, exceeded the 36-month statutory maximum penalty under 18 U.S.C. § 111(a), so the district court imposed a 36-month term. On appeal, defendant argued that the district court improperly increased his sentence for reckless endangerment during flight, so that his actual guideline range should only have been 63-78 months. The Tenth Circuit found that this reduction could not benefit defendant because the range still exceeded the 36-month statutory maximum. Thus, a remand for resentencing would produce the same result. See Williams v. U.S., 503 U.S. 193, 203 (1992) (concluding that remand for resentencing where the district court misapplies a guideline is not required if “the error did not affect the district court’s selection of the sentence imposed”); U.S. v. Bermingham, 855 F.2d 925, 931 (2d Cir. 1988) (concluding that dispute about applicable guideline need not be resolved where the sentence falls within either of two arguably applicable guideline ranges and the same sentence would have been imposed under either guideline range). Thus, the Tenth Circuit declined to consider this argument. U.S. v. Sherwin, 271 F.3d 1231 (10th Cir. 2001).

 

10th Circuit will not review enhancement where low end of new guideline range was above statutory maximum. (865) The district court found defendant had a base offense level of 31, which, given criminal history category I, resulted in a sentencing range of 108-135 months. Defendant challenged a four-level enhancement. The Tenth Circuit would not review the matter since even without the enhancement, the low end of the new guideline range (70-87 months) would still be higher than the statutory maximum sentence of 60 months. Under § 5G1.1(a), since the statutory maximum was less than the minimum of either guideline range, the statutorily authorized maximum controlled. U.S. v. Wilkinson, 169 F.3d 1236 (10th Cir. 1999).

 

10th Circuit reverses where perjury finding did not cover all requisite factual predicates. (865) The Tenth Circuit reversed an obstruc­tion of justice enhancement where the district court’s finding of perjury did not encompass all of the requisite factual predicates. The court’s findings adequately identified defendant’s perjurious testi­mony. However, the court did not find, even generally, that defendant was untruthful about a material matter or that he willfully intended to provide false testimony. Nonetheless, the error was harmless because the district court made it clear at sentencing that defendant’s sentence would be the same regardless of the enhancement for obstruc­tion of justice. U.S. v. Medina‑Estrada, 81 F.3d 981 (10th Cir. 1996).

 

10th Circuit refuses to consider criminal history challenge where it would not affect category. (865) Defendant argued that an uncounseled misdemeanor conviction was improperly included in his criminal history. The Tenth Circuit declined to consider the issue since it would not change defendant’s criminal history category. To qualify for category IV, a de­­fendant must have a criminal history score of at least seven points. Even if the point attri­but­ed to the uncounseled misdemeanor convic­tion were not included, defendant’s criminal his­tory score would be seven points, within cate­gory IV. U.S. v. Ortiz, 63 F.3d 952 (10th Cir. 1995).

 

10th Circuit vacates where district court relied on wrong guideline range in impos­ing sentence. (865) The transcript indicated that in imposing a 41-month sentence, the district judge incorrectly stated that the guideline range was 33 to 46 months, when in fact it was 33 to 41 months. The 10th Circuit vacated for resentencing, even though the 41-month sentence was within the correct guide­line range.  Basing a sen­tence on a wrong guideline range constitutes a fun­damental er­ror affecting substantial rights.  The ap­pellate court could not be certain that the 41-month sentence selected was in reference to the cor­rect range or the incorrect range.  U.S. v. Avalos-Zarate, 986 F.2d 378 (10th Cir. 1993).

 

10th Circuit refused to review propriety of criminal his­tory calculation where it would not change criminal his­tory cate­gory. (865) Defendant contended that the dis­trict court improperly assessed him one criminal history point for a conviction which took place over ten years ago.  The 10th Circuit refused to con­sider the issue.  Even if defendant were cor­rect, this would only reduce his total criminal history points from five to four.  Since criminal history category III includes those with four to six criminal history points, any er­ror made was harmless.  U.S. v. Williams, 919 F.2d 1451 (10th Cir. 1990).

 

11th Circuit finds no plain error where sentence fell within range sought by defendant. (865) Defen­dant was convicted of perjury in connection with his testimony in a 1989 civil suit.  He had a guideline range of 15-21 months and the court sentenced him to 15 months. Defendant argued for the first time on appeal that the district court should have applied the 1989 guidelines in effect at the time of his offense instead of the 1997 version. He claimed the 1989 version would have resulted in a range of 10-16 months. The Eleventh Circuit upheld the use of the 1997 guidelines. The district court gave defendant every opportunity to raise the issue below, so the issue was reviewable on appeal only if the failure to do so would result in manifest injustice. There was no manifest injustice because defendant’s 15-month sentence fell within the 10-16 month range that defendant claimed applied to him. U.S. v. Kersey, 130 F.3d 1463 (11th Cir. 1997).

 

11th Circuit refuses to consider drug quantity challenge where it would not change defendant’s sentence. (865) Defendant pled guilty to a marijuana conspiracy, and was sentenced as a career offender to 292 months’ imprisonment. He argued that the district court erred in holding him accountable for 1800 pounds of marijuana. The Eleventh Circuit found it unnecessary to consider the challenge since it would not affect defendant’s sentence. Defendant did not object at sentencing to the inclusion of 300 pounds of marijuana that he bought from an undercover agent, and therefore this quantity must remain in the calculation. The sentence for the 300 pounds of marijuana alone would have resulted in an offense level of 35 and a sentencing range of 292 to 365 months. Because the district court imposed the minimum sentence within this guideline range, a reduction in the amount of drugs involved could not have reduced defendant’s sentence. U.S. v. Lipsey, 40 F.3d 1200 (11th Cir. 1994).

 

11th Circuit remands even though sen­tence was within corrected guideline range. (865) The district court incorrectly assigned defendant an offense level of 26, rather than 24.  This increased his guideline range from 92 to 115 months to a range of 110 to 137 months.  Defendant received a 110-month sen­tence.  The 11th Circuit re­manded even though his 110-month sentence was within the new sentence range.  Courts must correctly perceive the range of their dis­cretion before deciding how to exercise it.  U.S. v. Koonce, 991 F.2d 693 (11th Cir. 1993).

 

11th Circuit refuses to review sentenc­ing chal­lenge because same sentence would have been im­posed under new range. (865) Defendant had a guideline range of 51 to 63 months, but claimed that she should have been sentenced under a lower but over­lapping range.  The 11th Circuit refused to con­sider her claim because it was satisfied that the same 60-month sentence would have been imposed under either guideline range.  The district judge stated that “60 months is fair whatever side you take.”  He fur­ther stated that although defen­dant might have been a candidate for a 51 month sentence he would not have given it to her.  Thus, the record re­flected that defen­dant would have re­ceived a 60 month sentence re­gardless of which range applied. U.S. v. Mil­ton, 979 F.2d 839 (11th Cir. 1992).

 

11th Circuit refuses to consider which base of­fense level was applicable where sentencing ranges over­lapped. (865) Al­though the district court im­posed a two level enhancement challenged by defen­dant, the court stated that it would impose the same sentence re­gardless of the offense level.  The 11th Circuit refused to consider defendant’s appeal, since the guideline ranges for the two offense levels over­lapped, and the district court made it clear that it would impose the same sentence under both offense levels.  U.S. v. De La Torre, 949 F.2d 1121 (11th Cir. 1992).

 

11th Circuit holds defendant may appeal a sentence im­posed within the guide­line range he advocated. (865) The district judge im­posed a sentence at the low end of the range advo­cated by the government, which would have been in the higher end of the guideline range advo­cated by the defendant.  The Eleventh Circuit held that the sentence was never­theless ap­pealable under 18 U.S.C. § 3742 be­cause the defendant was alleging that the guidelines had been incorrectly applied, even though the guideline ranges ad­vocated by each of the parties overlapped.  U.S. v. Fuente-Kol­benschlag, 878 F.2d 1377 (11th Cir. 1989).

 

D.C. Circuit holds overlap of applicable guidelines may require appellate re­view if dis­trict court fails to state that sentence would be same under either range. (865) Relying upon decisions from other circuits, the D.C. Cir­cuit held that when a sentence “falls within either of two arguably applicable guidelines and it is clear that the same sentence would have been imposed under either guideline range,” an ap­pellate court need not resolve the dispute.  Where it appears however, that the dis­trict court chose a sentence because it was at the low end of the ap­plicable range, the case must be remanded for resen­tencing.  Here, the latter situation existed.  The court was required to review the propriety of the sen­tence.  U.S. v. Williams, 891 F.2d 921 (D.C. Cir. 1989), superseded on other grounds by guideline as stated in U.S. v. Caballero, 936 F.2d 1292 (D.C. Cir. 1991).

Browse Contents

  • 100 Pre-Guidelines Sentencing, Generally
  • 110 Guidelines Sentencing, Generally
  • 150 Application Principles, Generally
  • 200 Offense Conduct, Generally
  • 400 Adjustments, Generally
  • 500 Criminal History, Generally
  • 550 Determining the Sentence
  • 700 Departures, Generally
  • 750 Sentencing Hearing, Generally
  • 780 Plea Agreements, Generally
  • 800 Violations of Probation and Supervised Release
  • 840 Sentencing of Organizations
  • 850 Appeal of Sentence (18 U.S.C. §3742)
  • 880 Habeas Corpus / 28 U.S.C. 2255 Motions
  • 900 – Forfeitures, Generally

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