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Seventh Circuit Vacates Sentence Where District Court’s Rationale for Defendant’s Offense Level Unclear

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit vacated Darrell Loving’s sentence because the reasons given by the U.S. District Court for the District of Indiana for arriving at an offense level of 24 were unclear.

Loving pleaded guilty to possessing cocaine and heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). During the police chase that had resulted in his arrest, Loving dragged an Indiana State Police trooper several feet, and he sped through the scene of a recent accident, endangering the lives of other officers. The presentence investigation report (“PSR”) began with an offense level of 24 based on the quantity of drugs. With a two-level enhancement for reckless endangerment during flight, offset by a two-level reduction for acceptance of responsibility, the PSR arrived at a final offense level of 24 and a criminal history category of II, resulting in an advisory Guidelines range of 57 to 71 months in prison.

The prosecution argued that Loving should receive the third point of acceptance of responsibility under U.S.S.G. § 3E1.1(b), lowering his offense level to 23 with an advisory Guidelines range of 51 to 63 months. Loving concurred on that point.

The prosecution then argued that “from this [51 to 63-month] range, the government is seeking a one-level upward departure, pursuant to Guidelines Section 3C1.2, application note 6, for substantial risk of death or bodily injury to more than one person during reckless endangerment during flight. This one-level upward departure results in the equivalent of a range of 57 to 71 months.” Loving opposed that extra offense level regardless of whether it was an upward departure or an extra level added to the calculated range.

The district court adopted the findings from the PSR but failed to address either parties’ agreed upon third-point reduction for acceptance of responsibility or the prosecution’s proposed one-level upward departure. The district court stated “[t]he defendant’s total offense level is 24. His criminal history category is 2. That makes his advisory guidelines imprisonment range 57 to 71 months.” In the Statement of Reasons, the district court checked the box indicating it had adopted the Guidelines calculations in the PSR without change. Loving appealed.

The Seventh Circuit observed “[d]istrict courts must calculate a defendant’s total offense level in a manner that allows appellate review of the reasoning.” United States v. Titus, 821 F.3d 930 (7th Cir. 2016). In the instant case, it is unclear how the district court arrived at an offense level of 24. While there were two possible rationales or “pathways,” both were erroneous, according to the Court.

First, if the district court adopted the calculations from the PSR, then it erred by failing to explain why it declined to apply the agreed-upon one-level reduction under U.S.S.G. § 3E1.1(b). A sentencing court must explain a denial of the Government’s motion requesting this reduction. United States v. Vargas, 961 F.3d 566 (2d Cir. 2020).

But if the district court arrived at an initial offense level of 24 by accepting the Government’s argument for an upward one-level departure to Loving’s offense level based on application note 6 of § 3C1.2, it erred by using one of the departure provisions of the Sentencing Guidelines to calculate Loving’s advisory range, according to the Court. The first step in the sentencing process is to correctly calculate the applicable Guidelines range. Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018). It is not until the second optional step that the court may consider the advice in the Sentencing Guidelines about potential departures. U.S.S.G. § 1B1.1(b).

The Court concluded that the district court committed procedural error and “cannot deem harmless the apparent confusion between guideline range and upward departure.” It stated that the district court’s statements are compelling evidence that “the erroneously calculated guideline range influenced the court’s chosen sentence.” See Molina-Martinez v. United States, 578 U.S. 189 (2016). Additionally, the Court explained that it cannot infer that the district court “believed a 71-month prison sentence would be appropriate regardless of the correct guideline range.”

The Court stated that it expresses no opinion about whether 71 months in prison is an appropriate sentence for Loving. Should the district court, after considering the Government’s motion requesting the third point acceptance-of-responsibility reduction and calculating Loving’s correct Guidelines range then consider a possible upward departure, it is an acceptable path—but the district court’s reasoning must be clear.

Accordingly, the Court vacated Loving’s sentence and remanded for resentencing. See: United States v. Loving, 22 F.4th 630 (7th Cir. 2022). 

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Related legal cases

United States v. Loving

Molina-Martinez v. U.S.

578 U.S. ___; 136 S.Ct. 1338; 194 L.Ed.2d 444; 2016 U.S. LEXIS 2800


No. 14-8913.

January 12, 2016, Argued

April 20, 2016, Decided


The LEXIS pagination of this document is subject to change pending release of the final published version.

United States v. Molina-Martinez, 588 Fed. Appx. 333, 2014 U.S. App. LEXIS 23760 (5th Cir. Tex., 2014)

COUNSEL: Timothy Crooks argued the cause for petitioner.

Scott A.C. Meisler argued the cause for respondent.

JUDGES: KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined.


JUSTICE KENNEDY delivered the opinion of the Court.

This case involves the Federal Sentencing Guidelines. In sentencing petitioner, the District Court applied a Guidelines range higher than the applicable one. The error went unnoticed by the court and the parties, so no timely objection was entered. The error was first noted when, during briefing to the Court of Appeals for the Fifth Circuit, petitioner himself raised the mistake. The Court of Appeals refused to correct the error because, in [*6] its view, petitioner could not establish a reasonable probability that but for the error he would have received a different sentence. Under that court’s decisions, if a defendant’s ultimate sentence falls within what would have been the correct Guidelines range, the defendant, on appeal, must identify “additional evidence” to show that use of the incorrect Guidelines range did in fact affect his sentence. Absent that evidence, in the Court of Appeals’ view, a defendant who is sentenced under an incorrect range but whose sentence is also within what would have been the correct range cannot demonstrate he has been prejudiced by the error.

Most Courts of Appeals have not adopted so rigid a standard. Instead, in recognition of the Guidelines’ central role in sentencing, other Courts of Appeals have concluded that a district court’s application of an incorrect Guidelines range can itself serve as evidence of an effect on substantial rights. See, e.g., United States v. Sabillon-Umana, 772 F. 3d 1328, 1333 (CA10 2014) (application of an erroneous Guidelines range “‘runs the risk of affecting the ultimate sentence regardless of whether the court ultimately imposes a sentence within or outside’” that range); United States v. Vargem, 747 F. 3d 724, 728-729 (CA9 2014); United States v. Story, 503 F. 3d 436, 440 (CA6 2007). These courts recognize that, in most cases, [*7] when a district court adopts an incorrect Guidelines range, there is a reasonable probability that the defendant’s sentence would be different absent the error. This Court granted certiorari to reconcile the difference in approaches.



The Sentencing Guidelines provide the framework for the tens of thousands of federal sentencing proceedings that occur each year. Congress directed the United States Sentencing Commission (USSC or Commission) to establish the Guidelines. 28 U. S. C. §994(a)(1). The goal was to achieve “‘uniformity in sentencing . . . imposed by different federal courts for similar criminal conduct,’ as well as ‘proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of different severity.’” Rita v. United States, 551 U. S. 338, 349, 127 S. Ct. 2456, 168 L. Ed. 2d 203 (2007). To those ends, the Commission engaged in “a deliberative and dynamic process” to create Guidelines that account for a variety of offenses and circumstances. USSC, Guidelines Manual §2 ch. 1, pt. A, intro. comment., p. 14 (Nov. 2015) (USSG),. As part of that process, the Commission considered the objectives of federal sentencing identified in the Sentencing Reform Act of 1984—the same objectives that federal judges must consider when sentencing defendants. Compare 28 U. S. C. §991(b) with [*8] 18 U. S. C. §3553(a). The result is a set of elaborate, detailed Guidelines that aim to embody federal sentencing objectives “both in principle and in practice.” Rita, supra, at 350, 127 S. Ct. 2456, 168 L. Ed. 2d 20.

Uniformity and proportionality in sentencing are achieved, in part, by the Guidelines’ significant role in sentencing. See Peugh v. United States, 569 U. S. ___, ___, 133 S. Ct. 2072, 186 L.E.2d 84 (2013) (slip op., at 10). The Guidelines enter the sentencing process long before the district court imposes the sentence. The United States Probation Office first prepares a presentence report which includes a calculation of the advisory Guidelines range it considers to be applicable. Fed. Rules Crim. Proc. 32(d)(1)(A)-(C); see generally 18 U. S. C. §3552(a). The applicable Guidelines range is based on the seriousness of a defendant’s offense (indicated by his “offense level”) and his criminal history (indicated by his “criminal history category”). Rules 32(d)(1)(B)-(C). The presentence report explains the basis for the Probation Office’s calculations and sets out the sentencing options under the applicable statutes and Guidelines. Rule 32(d)(1). It also contains detailed information about the defendant’s criminal history and personal characteristics, such as education and employment history. Rule 32(d)(2).

At the outset of the sentencing proceedings, the district court must determine the applicable Guidelines range. Peugh, supra, at ___, 133 S. Ct. 2072, 2080, 186 L.E.2d 84, 95. To do so, the court [*9] considers the presentence report as well as any objections the parties might have. The court then entertains the parties’ arguments regarding an appropriate sentence, including whether the sentence should be within the Guidelines range or not. Although the district court has discretion to depart from the Guidelines, the court “must consult those Guidelines and take them into account when sentencing.” United States v. Booker, 543 U. S. 220, 264, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).


The Guidelines are complex, and so there will be instances when a district court’s sentencing of a defendant within the framework of an incorrect Guidelines range goes unnoticed. In that circumstance, because the defendant failed to object to the miscalculation, appellate review of the error is governed by Federal Rule of Criminal Procedure 52(b).

Rule 52, in both its parts, is brief. It states:
“(a) HARMLESS ERROR. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

“(b) PLAIN ERROR. A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”

The starting point for interpreting and applying paragraph (b) of the Rule, upon which this case turns, is the Court’s decision in United States v. Olano, 507 U. S. 725, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). Olano instructs that a court of appeals has discretion to remedy [*10] a forfeited error provided certain conditions are met. First, there must be an error that has not been intentionally relinquished or abandoned. Id., at 732-733, 113 S. Ct. 1770, 123 L. Ed. 2d 508. Second, the error must be plain—that is to say, clear or obvious. Id., at 734, 113 S. Ct. 1770, 123 L. Ed. 2d 508. Third, the error must have affected the defendant’s substantial rights, ibid., which in the ordinary case means he or she must “show a reasonable probability that, but for the error,” the outcome of the proceeding would have been different, United States v. Dominguez Benitez, 542 U. S. 74, 76, 82, 124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004). Once these three conditions have been met, the court of appeals should exercise its discretion to correct the forfeited error if the error “‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’” Olano, supra, at 736, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (brackets omitted).


The petitioner here, Saul Molina-Martinez, pleaded guilty to being unlawfully present in the United States after having been deported following an aggravated felony conviction, in violation of 8 U. S. C. §§1326(a) and (b). As required, the Probation Office prepared a presentence report that related Molina-Martinez’s offense of conviction, his criminal history, his personal characteristics, and the available sentencing options. The report also included the Probation Office’s calculation of what [*11] it believed to be Molina-Martinez’s Guidelines range. The Probation Office calculated Molina-Martinez’s total offense level as 21. It concluded that Molina-Martinez’s criminal history warranted 18 points, which included 11 points for five aggravated burglary convictions from 2011. Those 18 criminal history points resulted in a criminal history category of VI. That category, combined with an offense level of 21, resulted in a Guidelines range of 77 to 96 months.

At the sentencing hearing Molina-Martinez’s counsel and the Government addressed the court. The Government acknowledged that the Probation Office had “recommended the low end on this case, 77 months.” App. 30. But, the prosecution told the court, it “disagree[d] with that recommendation,” and was “asking for a high end sentence of 96 months”—the top of the Guidelines range. Ibid. Like the Probation Office, counsel for Molina-Martinez urged the court to enter a sentence at the bottom of the Guidelines range. Counsel asserted that “77 months is a severe sentence” and that “after the 77 months, he’ll be deported with probably a special release term.” Id., at 32. A sentence of 77 months, counsel continued, “is more than adequate to ensure he doesn’t [*12] come back again.” Ibid.

After hearing from the parties, the court stated it was adopting the presentence report’s factual findings and Guidelines calculations. It then ordered Molina-Martinez’s sentence:
“It’s the judgment of the Court that the defendant, Saul Molina-Martinez, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 77 months. Upon release from imprisonment, Defendant shall be placed on supervised release for a term of three years without supervision.” Id., at 33.

The court provided no further explanation for the sentence.

On appeal, Molina-Martinez’s attorney submitted a brief pursuant to Anders v. California, 386 U. S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). The attorney explained that, in his opinion, there were no nonfrivolous grounds for appeal. Molina-Martinez, however, submitted a pro se response to his attorney’s Anders brief. In it he identified for the first time what he believed to be an error in the calculation of his criminal history points under the Guidelines. The Court of Appeals concluded that Molina-Martinez’s argument did not appear frivolous. It directed his lawyer to file either a supplemental Anders brief or a brief on the merits of the Guidelines issue.

Molina-Martinez, through his attorney, [*13] filed a merits brief arguing that the Probation Office and the District Court erred in calculating his criminal history points, resulting in the application of a higher Guidelines range. The error, Molina-Martinez explained, occurred because the Probation Office failed to apply §4A1.2(a)(2) of the Guidelines. See USSG §4A1.2(a)(2) (Nov. 2012). That provision addresses how multiple sentences imposed on the same day are to be counted for purposes of determining a defendant’s criminal history. It instructs that, when prior sentences were imposed on the same day, they should be counted as a single sentence unless the offenses “were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense).” Ibid.

Molina-Martinez’s presentence report included five aggravated burglary convictions for which he had been sentenced on the same day. The Probation Office counted each sentence separately, which resulted in the imposition of 11 criminal history points. Molina-Martinez contended this was error because none of the offenses were separated by an intervening arrest and because he had been sentenced for all five burglaries on the same day. Under a correct calculation, in his view, [*14] the burglaries should have resulted in 5 criminal history points instead of 11. That would have lowered his criminal history category from VI to V. The correct criminal history category, in turn, would have resulted in a Guidelines range of 70 to 87 months rather than 77 to 96 months. Had the correct range been used, Molina-Martinez’s 77-month sentence would have been in the middle of the range, not at the bottom.

Molina-Martinez acknowledged that, because he did not object in the District Court, he was entitled to relief only if he could satisfy Rule 52(b)’s requirements. He nevertheless maintained relief was warranted because the error was plain, affected his substantial rights, and impugned the fairness, integrity, and public reputation of judicial proceedings.

The Court of Appeals disagreed. It held that Molina-Martinez had not established that the District Court’s application of an incorrect Guidelines range affected his substantial rights. It reasoned that, when a correct sentencing range overlaps with an incorrect range, the reviewing court “‘do[es] not assume, in the absence of additional evidence, that the sentence [imposed] affects a defendant’s substantial rights.’” 588 Fed. Appx. 333, 335 (CA5 2014) (per curiam); see also [*15] United States v. Blocker, 612 F. 3d 413, 416 (CA5 2010). Molina-Martinez, the court ruled, had not put forth the additional evidence necessary to show that the error affected his substantial rights. “The mere fact that the court sentenced Molina-Martinez to a low-end sentence,” the Court of Appeals reasoned, “is insufficient on its own to show that Molina-Martinez would have received a similar low-end sentence had the district court used the correct Guidelines range.” 588 Fed. Appx., at 335. Instead, Molina-Martinez needed to identify “‘additional evidence’” in the record showing that the Guidelines had an effect on the District Court’s selection of his sentence. Ibid. The court noted that “the district court made no explicit statement suggesting that the Guidelines range was a primary factor in sentencing.” Ibid. And the court did not view as probative “the parties’ anchoring of their sentencing arguments in the Guidelines” or “the district court’s refusal to grant the government’s request for a high-end sentence of 96 months.” Ibid.

This Court granted certiorari to resolve the disagreement among Courts of Appeals over how to determine whether the application of an incorrect Guidelines range at sentencing affected the defendant’s substantial rights. See 576 U. S. ___, 136 S. Ct. 26, 192 L. Ed. 2d 998 (2015).

III [*16]

The Court of Appeals for the Fifth Circuit stands generally apart from other Courts of Appeals with respect to its consideration of unpreserved Guidelines errors. This Court now holds that its approach is incorrect.

Nothing in the text of Rule 52(b), its rationale, or the Court’s precedents supports a requirement that a defendant seeking appellate review of an unpreserved Guidelines error make some further showing of prejudice beyond the fact that the erroneous, and higher, Guidelines range set the wrong framework for the sentencing proceedings. This is so even if the ultimate sentence falls within both the correct and incorrect range. When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.


Today’s holding follows from the essential framework the Guidelines establish for sentencing pro



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