FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 4, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-1020 (D.C. No. 1:16-CR-00288-MSK-GPG-1) JOSEPH A. SMITH, (D. Colo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, SEYMOUR, and KELLY, Circuit Judges. _________________________________
Joseph Smith appeals his sentence, arguing the district court plainly erred in
stating an incorrect Guidelines range. We agree. Exercising jurisdiction under 18
U.S.C. § 3742(a) and 28 U.S.C. § 1291, we remand for resentencing.
I
Smith pled guilty to one count of transporting child pornography in violation
of 18 U.S.C. § 2252A(a)(1) and (b)(1). According to his Presentence Investigation
Report (“PSR”), Smith’s total offense level was 37 and his criminal history category
was II. Those figures ordinarily yield a Guidelines range of 235 to 293 months. See
U.S.S.G. Ch. 5 Part A, Sentencing Table. Because Smith’s offense carried a
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. statutory maximum of 20 years, however, his range would instead be 235 to 240
months. See 18 U.S.C. § 2252A(a)(1), (b)(1). The PSR noted that Smith’s criminal
history category might be overstated, and that the district court could consider a
downward departure on that basis. See U.S.S.G. § 4A1.3(b)(1). If Smith were
sentenced using a criminal history category of I, his Guidelines range would be 210
to 240 months.1 The probation office recommended a sentence of 210 months.
At Smith’s sentencing hearing, defense counsel requested a downward
variance to 120 months. The government requested a sentence of 240 months. After
considering the parties’ arguments, the district court concluded that Smith should be
treated as having a criminal history category of I and a total offense level of 37. It
stated that the recommended range was therefore 235 to 240 months. Neither party
objected. The district court found that a downward variance was appropriate and
imposed a sentence of 180 months. Smith timely appealed.
II
Smith argues the district court applied an incorrect Guidelines range. Because
he failed to object below, we review only for plain error. To prevail, Smith must
show: “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4)
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
1 The ordinary range for an offense level of 37 and a criminal history category of I is 210 to 262 months, but this range was also limited by the statutory maximum to 240 months. See 18 U.S.C. § 2252A(a)(1), (b)(1); U.S.S.G. Ch. 5 Part A, Sentencing Table. 2 United States v. Martinez-Torres, 795 F.3d 1233, 1236 (10th Cir. 2015) (quotation
omitted).
As the government concedes, the first two prongs are met. The district court
was plainly incorrect when it stated that the Guidelines range for a criminal history
category of I and a total offense level of 37 was 235 to 240 months. The correct
range is 210 to 262 months. U.S.S.G. Ch. 5 Part A, Sentencing Table. Because of
his statutory maximum, Smith’s range was therefore 210 to 240 months. See 18
U.S.C. § 2552A(a)(1), (b)(1).
To satisfy the third prong of plain error review, Smith must “show a
reasonable probability that, but for the error, the outcome of the proceeding would
have been different.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343
(2016) (quotation omitted). A plain error as to “the sentencing [G]uidelines will
usually satisfy” this test. United States v. Sabillon-Umana, 772 F.3d 1328, 1333
(10th Cir. 2014). “[B]ecause the Guidelines exert their force whenever a district
court complies with the federal sentencing scheme by first calculating the Guidelines
range, a miscalculation in the 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. Rosales-Miranda, 755 F.3d 1253, 1259 (10th
Cir. 2014) (emphasis omitted).
This is not to say that the third prong is automatically met. If the sentencing
“judge based the sentence he or she selected on factors independent of the
Guidelines,” then an improperly calculated Guidelines range might not have
3 prejudiced the defendant. Molina-Martinez, 136 S. Ct. at 1347. For example, in
United States v. Chavez-Morales, 894 F.3d 1206 (10th Cir. 2018), the defendant
argued that the district court plainly erred by ignoring a Guideline indicating that
supervised release was inappropriate. We concluded the third prong was not satisfied
because the district court repeatedly stressed “the need for deterrence was
particularly high” and “the imposition of a term of supervised release was likely to
have a strong deterrent effect.” Id. at 1218. However, in United States v. Archuleta,
865 F.3d 1280 (10th Cir. 2017), the district court stated a dispute as to criminal
history points “would not change my view.” Id. at 1291. We nevertheless held that
the court’s “statements are not sufficient to overcome Archuleta’s showing of
prejudice” because “[t]he sentencing judge did not indicate that the sentence was
imposed without regard to the calculated Guidelines range.” Id.
The government argues that the district court based Smith’s sentence on
factors independent of his Guidelines range, pointing to the district court’s statement
regarding the need to avoid unwarranted disparity with Smith’s co-conspirator. The
prosecutor noted that Smith’s co-conspirator had received a federal sentence of nine
years (adjusted for time served) and a consecutive eight-year sentence in state court,
but indicated that the state sentence could be calculated differently based on good
time credits. And the district court stated that Smith’s sentence needed to be
“adjusted in order to avoid unwarranted disparity” with his co-conspirator. We
conclude that these comments do not eliminate the reasonable probability that the
4 district court would have imposed a lesser sentence under the correct Guidelines
range.
In addition, the government suggests that the district court may have simply
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 4, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-1020 (D.C. No. 1:16-CR-00288-MSK-GPG-1) JOSEPH A. SMITH, (D. Colo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, SEYMOUR, and KELLY, Circuit Judges. _________________________________
Joseph Smith appeals his sentence, arguing the district court plainly erred in
stating an incorrect Guidelines range. We agree. Exercising jurisdiction under 18
U.S.C. § 3742(a) and 28 U.S.C. § 1291, we remand for resentencing.
I
Smith pled guilty to one count of transporting child pornography in violation
of 18 U.S.C. § 2252A(a)(1) and (b)(1). According to his Presentence Investigation
Report (“PSR”), Smith’s total offense level was 37 and his criminal history category
was II. Those figures ordinarily yield a Guidelines range of 235 to 293 months. See
U.S.S.G. Ch. 5 Part A, Sentencing Table. Because Smith’s offense carried a
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. statutory maximum of 20 years, however, his range would instead be 235 to 240
months. See 18 U.S.C. § 2252A(a)(1), (b)(1). The PSR noted that Smith’s criminal
history category might be overstated, and that the district court could consider a
downward departure on that basis. See U.S.S.G. § 4A1.3(b)(1). If Smith were
sentenced using a criminal history category of I, his Guidelines range would be 210
to 240 months.1 The probation office recommended a sentence of 210 months.
At Smith’s sentencing hearing, defense counsel requested a downward
variance to 120 months. The government requested a sentence of 240 months. After
considering the parties’ arguments, the district court concluded that Smith should be
treated as having a criminal history category of I and a total offense level of 37. It
stated that the recommended range was therefore 235 to 240 months. Neither party
objected. The district court found that a downward variance was appropriate and
imposed a sentence of 180 months. Smith timely appealed.
II
Smith argues the district court applied an incorrect Guidelines range. Because
he failed to object below, we review only for plain error. To prevail, Smith must
show: “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4)
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
1 The ordinary range for an offense level of 37 and a criminal history category of I is 210 to 262 months, but this range was also limited by the statutory maximum to 240 months. See 18 U.S.C. § 2252A(a)(1), (b)(1); U.S.S.G. Ch. 5 Part A, Sentencing Table. 2 United States v. Martinez-Torres, 795 F.3d 1233, 1236 (10th Cir. 2015) (quotation
omitted).
As the government concedes, the first two prongs are met. The district court
was plainly incorrect when it stated that the Guidelines range for a criminal history
category of I and a total offense level of 37 was 235 to 240 months. The correct
range is 210 to 262 months. U.S.S.G. Ch. 5 Part A, Sentencing Table. Because of
his statutory maximum, Smith’s range was therefore 210 to 240 months. See 18
U.S.C. § 2552A(a)(1), (b)(1).
To satisfy the third prong of plain error review, Smith must “show a
reasonable probability that, but for the error, the outcome of the proceeding would
have been different.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343
(2016) (quotation omitted). A plain error as to “the sentencing [G]uidelines will
usually satisfy” this test. United States v. Sabillon-Umana, 772 F.3d 1328, 1333
(10th Cir. 2014). “[B]ecause the Guidelines exert their force whenever a district
court complies with the federal sentencing scheme by first calculating the Guidelines
range, a miscalculation in the 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. Rosales-Miranda, 755 F.3d 1253, 1259 (10th
Cir. 2014) (emphasis omitted).
This is not to say that the third prong is automatically met. If the sentencing
“judge based the sentence he or she selected on factors independent of the
Guidelines,” then an improperly calculated Guidelines range might not have
3 prejudiced the defendant. Molina-Martinez, 136 S. Ct. at 1347. For example, in
United States v. Chavez-Morales, 894 F.3d 1206 (10th Cir. 2018), the defendant
argued that the district court plainly erred by ignoring a Guideline indicating that
supervised release was inappropriate. We concluded the third prong was not satisfied
because the district court repeatedly stressed “the need for deterrence was
particularly high” and “the imposition of a term of supervised release was likely to
have a strong deterrent effect.” Id. at 1218. However, in United States v. Archuleta,
865 F.3d 1280 (10th Cir. 2017), the district court stated a dispute as to criminal
history points “would not change my view.” Id. at 1291. We nevertheless held that
the court’s “statements are not sufficient to overcome Archuleta’s showing of
prejudice” because “[t]he sentencing judge did not indicate that the sentence was
imposed without regard to the calculated Guidelines range.” Id.
The government argues that the district court based Smith’s sentence on
factors independent of his Guidelines range, pointing to the district court’s statement
regarding the need to avoid unwarranted disparity with Smith’s co-conspirator. The
prosecutor noted that Smith’s co-conspirator had received a federal sentence of nine
years (adjusted for time served) and a consecutive eight-year sentence in state court,
but indicated that the state sentence could be calculated differently based on good
time credits. And the district court stated that Smith’s sentence needed to be
“adjusted in order to avoid unwarranted disparity” with his co-conspirator. We
conclude that these comments do not eliminate the reasonable probability that the
4 district court would have imposed a lesser sentence under the correct Guidelines
range.
In addition, the government suggests that the district court may have simply
misspoken when it announced Smith’s range. That is certainly possible. Earlier in
the sentencing hearing, the district court asked defense counsel why a 120 month
sentence would be appropriate, “assuming that a range of 210 to 262 is the correct
guideline range.” But several potential ranges were discussed over the course of the
hearing, and there is at least a reasonable probability that the district court did not
misspeak.
We also conclude that Smith has satisfied the fourth prong. “In the ordinary
case, proof of a plain Guidelines error that affects the defendant’s substantial rights is
sufficient to meet that burden.” Rosales-Mireles v. United States, 138 S. Ct. 1897,
1909 n.4 (2018). Nothing in the present dispute convinces us to part from the usual
rule.
III
We REVERSE the district court’s sentencing order, and REMAND with
instructions to VACATE Smith’s sentence and resentence him consistent with this
order and judgment.
Entered for the Court
Carlos F. Lucero Circuit Judge