United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 20, 2015 Decided March 25, 2016 

No. 14-3055 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

DWAYNE E. HEAD, 

APPELLANT

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:07-pt-00348-1) 

Robert S. Becker, appointed by the court, argued the 

cause and filed the briefs for appellant. 

Peter S. Smith, Assistant U.S. Attorney, argued the cause 

for appellee. With him on the brief were Vincent H. Cohen 

Jr., Acting U.S. Attorney, and Elizabeth Trosman and John P. 

Mannarino, Assistant U.S. Attorneys. 

Before: PILLARD, Circuit Judge, and SILBERMAN and 

SENTELLE, Senior Circuit Judges. 

 Opinion for the Court filed by Circuit Judge PILLARD. 
2 

 Dissenting opinion filed by Senior Circuit Judge

SENTELLE. 

PILLARD, Circuit Judge: While on supervised release 

following a prison term for a federal drug-dealing conviction, 

Dwayne Head re-offended, thereby violating a condition of 

his supervised release. The District of Columbia Superior 

Court sentenced Head to a four-year prison term for that new 

offense. A federal district judge then revoked Head’s term of 

supervised release and imposed a 30-month term of 

imprisonment that was to run consecutive to the four-year 

sentence for the D.C. offense. Head argues—and the 

government agrees—that, in imposing the revocation term as 

consecutive to rather than concurrent with the new sentence, 

the district court appears to have erroneously invoked the 

Sentencing Guidelines in effect at the time of sentencing, 

rather than the Guidelines in effect in 1988 when Head 

committed the underlying offense. Use of the wrong 

Guidelines, Head contends, was a violation of the Ex Post 

Facto Clause’s protection against the retroactive increase of 

punishment for a completed offense. The government 

counters that the apparent error made no difference. Because 

Head failed to present his ex post facto claim to the district 

court, we review that court’s decision only for plain error. 

The judge’s error in relying on post-offense Guidelines, in 

violation of the Ex Post Facto Clause, was plain, so we vacate 

Head’s post-revocation sentence and remand to the district 

court for sentencing under the applicable Guidelines. 

I. 

A. 

In response to criminal charges of drug dealing in 

September 1988, Head pled guilty on December 4, 1989, to 
3 

possession with intent to distribute thirty grams of cocaine 

base. See United States v. Head, 927 F.2d 1361, 1364, 1374 

(6th Cir. 1991). A federal judge in Ohio sentenced Head to 

235 months in prison and five years of supervised release. 

Head was released from prison and began serving his 

five-year term of supervised release on November 14, 2006. 

When Head moved to the District of Columbia in 2007, the 

district court here took jurisdiction over Head’s supervised 

release. Throughout 2008 and 2009, Head’s probation officer 

reported that Head had failed to comply with various 

conditions of his supervised release, but initially 

recommended that the court take no action, in part because 

Head was employed. On April 25, 2010, while on supervised 

release in the District, Head was arrested for assault with a 

dangerous weapon. He was prosecuted in District of 

Columbia Superior Court, convicted of the lesser charge of 

felony threats, and sentenced to 48 months in prison. 

Because of Head’s conviction in superior court, the 

supervised release relating to his decades-old federal 

conviction was subject to revocation. See 18 U.S.C. § 3583 

(d), (e)(3). At a January 2012 status conference, the federal 

district judge revoked Head’s supervised release with this 

explanation: 

Well, based upon the conviction, the Court revokes 

your period of supervised release in this case. The 

sentencing commission guidelines actually require 

that the sentence here—which I’ll give you the 

minimum under the guidelines, which is 30 months. 

But the guidelines do require that it be consecutive 

unless I find a basis for a departure. 
4 

Because of your really poor prior record, I can’t find a 

basis for departure, so the 30 months will be 

consecutive. 

App. 95. Head did not timely object to the determination that 

the Guidelines required that the sentence be consecutive 

rather than concurrent. 

B. 

The Ex Post Facto Clause, U.S. CONST., Art. I, § 9, cl. 3, 

prohibits, among other things, the application of any law that 

“changes the punishment, and inflicts a greater punishment, 

than the law annexed to the crime, when committed,” Calder 

v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798), including changes in 

the law that sufficiently raise the risk of increased 

punishment, see Peugh v. United States, 133 S. Ct. 2072, 

2082 (2013); United States v. Turner, 548 F.3d 1094, 1100 

(D.C. Cir. 2008). Federal law generally requires district 

courts to use the Sentencing Guidelines “in effect on the date 

the defendant is sentenced,” 18 U.S.C. § 3553(a)(4)(A)(ii), 

unless doing so would increase punishment or sufficiently 

enhance the risk of an increase to amount to impermissible ex 

post facto law, see Peugh, 133 S. Ct. at 2081. A defendant 

does “not have to show definitively that he would have 

received a lesser sentence had the district court used the 

[correct] Guidelines.” Turner, 548 F.3d at 1100. 

The Sentencing Reform Act of 1984 authorizes a 

sentencing court to impose as “a part of the sentence a 

requirement that the defendant be placed on a term of 

supervised release after imprisonment.” 18 U.S.C. § 3583(a). 

During supervised release, the offender is required to abide by 

certain conditions, including that he not commit another 

federal, state, or local crime. Id. § 3583(d). If the court finds 

that an offender has violated a condition of his supervised 
5 

release, the court may “revoke” the term of supervised release 

and require the offender to serve all or part of that term in 

prison. Id. § 3583(e)(3). A sentence imposed upon 

revocation of supervised release is not punishment for the 

violation of the supervised-release condition, but “part of the 

penalty for the initial offense.” Johnson v. United States, 529 

U.S. 694, 700 (2000). 

The Sentencing Commission added section 7B1.3(f)—the 

policy statement at issue here—as part of a November 1, 

1990, revision that replaced in its entirety the chapter of the 

Guidelines that applies to violations of probation or 

supervised release. UNITED STATES SENTENCING 

COMMISSION, GUIDELINES MANUAL app. C, amend. 362 

(1990). Before 1990, the Sentencing Guidelines were silent 

as to whether a revocation term of imprisonment was to be 

served consecutive to, or concurrently with, any other 

sentence. See UNITED STATES SENTENCING COMMISSION,

GUIDELINES MANUAL ch.7 (October 1987, effective June 15, 

1988). As added in 1990, section 7B1.3(f) reads: 

Any term of imprisonment imposed upon the 

revocation of probation or supervised release shall be 

ordered to be served consecutively to any sentence of 

imprisonment that the defendant is serving, whether 

or not the sentence of imprisonment being served 

resulted from the conduct that is the basis of the 

revocation of probation or supervised release. 

USSG § 7B1.3(f) (1990). The revised Guidelines thus newly 

directed that a term of imprisonment imposed on revocation of 

supervised release be ordered to run consecutively to any 

other prison term. 
6 

II. 

We have jurisdiction over Head’s appeal of the district 

court’s sentencing order under 18 U.S.C. § 3742(a). Because 

Head did not raise an ex post facto claim before the district 

court, that challenge is forfeited, so subject to plain-error 

review. See Fed. R. Crim. P. 52(b); United States v. Olano, 

507 U.S. 725, 731-32 (1993). Under Olano’s four-pronged 

framework for assessing whether a court may correct an error 

not timely raised in the district court, we hold that the district 

court’s reliance on the incorrect Guidelines was (1) legal error 

that (2) was plain, (3) affected the defendant’s “substantial 

rights,” and (4) seriously affected the “fairness, integrity or 

public reputation of the judicial proceedings.” Id. at 732. We 

accordingly exercise our discretion to identify and correct the 

error. 

A. 

The government acknowledges that it “is a reasonable 

inference” that the judge who sentenced Head was referring to 

the then-current, 2011 Guidelines policy statement in section 

7B1.3(f). Gov’t Br. 16, n.10. At sentencing, the judge did 

not expressly cite a particular version or section of the 

Guidelines, but his reference to what the Guidelines “require” 

tracked section 7B1.3(f)’s provision that a revocation 

sentence “shall be ordered to be served consecutively” to the 

sentence for the new criminal offense. See USSG § 7B1.3 

(1990); see also USSG § 7B1.3 (2011) (same). As noted 

above, the Guidelines in effect when Head committed the 

underlying offense included no requirement or presumption of 

consecutive prison terms upon revocation of supervised 

release. See USSG ch. 7 (1988). Unconstrained by section 

7B1.3(f), the district court had discretion under the 1988 

Guidelines and the general guidance offered by 18 U.S.C. §§ 
7 

3553(a), 3583(e), and 3584 to impose either a consecutive or 

concurrent sentence. See United States v. Ayers, 795 F.3d 

168, 172 (D.C. Cir. 2015); see also United States v. Dees, 467 

F.3d 847, 852 (3d Cir. 2006) (holding, in agreement with 

Fourth, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, 

that courts’ general sentencing discretion under 18 U.S.C. § 

3584 authorizes district courts revoking supervised release to 

impose consecutive or concurrent sentences). Reliance on 

section 7B1.3(f) here created at least a “substantial risk” that 

Head’s sentence was more severe than it would have been had 

the court sentenced him under the Guidelines in effect at the 

time of his offense. Turner, 548 F.3d at 1100; see Peugh, 133 

S. Ct. at 2084. 

We appreciate the possibility that, in referring to what the 

Guidelines “require,” the district judge simply spoke 

inartfully. The district judge commented on the lack of “basis 

for departure,” which the government reads to suggest that he 

appreciated he had some discretion. App. 95. And the judge 

noted Head’s “really poor prior record” in violation of the 

terms of supervised release, which might justify the same 

length of sentence in any event. Perhaps he assumed that he 

had authority to avoid the consecutiveness requirement, but 

decided not to. Id.

1

 

 

1

 The term “departure” typically refers to the imposition of a 

sentence outside the Guidelines’ numerical range. We need not 

decide here in what circumstances a district court might depart from 

section 7B1.3(f)’s requirement of consecutive sentencing, where 

that requirement applies. We go no further than to observe that, 

unlike a fully discretionary choice, a consecutiveness requirement 

subject to departure would seem to contain a default bias in favor of 

the requirement. As the Supreme Court has explained, grounds for 

departure are relatively narrow and “unavailable” in most cases 

because “the [Sentencing] Commission will have adequately taken 
8 

But it is also possible that the judge felt constrained by 

section 7B1.3(f) to give the longer sentence—at least in the 

absence of a departure-worthy reason. Had the judge 

appreciated the full scope of his discretion, he might have 

deemed a concurrent sentence “sufficient, but not greater than 

necessary.” 18 U.S.C. 3553(a). He might, for example, have 

chosen a concurrent sentence because, by the time of the 

revocation sentencing, Head had already served the entirety of 

his five-year term of supervised release.2

 

On the limited record, we cannot say with confidence that 

the district judge appreciated the full range of discretion the 

applicable law afforded. He did not mention “discretion,” nor 

did he explain how he might have taken into account the 

statutory factors that a judge must consider in exercising 

discretion in sentencing. See 18 U.S.C. §§ 3583(e); 3553(a). 

The government contends that there is no ex post facto

defect in Head’s sentence, or that any error was surely 

inconsequential, for two principal reasons. It characterizes 

the court as having made the requisite discretionary decision 

unaffected by its apparent invocation of the wrong 

Guidelines, and contends that the court would have reached 

the same sentence under the older Guidelines. 

 

all relevant factors into account, and no departure will be legally 

permissible.” United States v. Booker, 543 U.S. 220, 234 (2005); 

see Turner, 548 F.3d at 1099 (noting that “judges are more likely to 

sentence within the Guidelines in order to avoid the increased 

scrutiny that is likely to result from imposing a sentence outside the 

Guidelines”). 

2

 The fact that Head completed the term of supervised release did 

not moot the revocation because the violation triggering revocation 

occurred during the term of supervised release. In such 

circumstances, 18 U.S.C. § 3583(i) allows a court reasonable time 

to adjudicate the revocation of supervised release. 
9 

The government describes the court’s order as 

“ultimately driven by” a discretionary judicial determination 

that Head’s record merited a consecutive sentence. See Gov’t 

Br. 18. If the court in fact imposed the term of imprisonment 

consecutively as a matter of discretion not hemmed in by 

section 7B1.3(f)’s consecutiveness rule, the government 

argues, it acted consistently with the Guidelines in effect at 

the time of the offense—and thereby avoided ex post facto

application of the later Guidelines. See Gov’t Br. 17-18. 

True enough. 

Our difficulty is that we are constrained by the limited 

record statements of the court’s reasons for the sentence it 

imposed. Under our decision in Turner, we must consider 

how discretion is exercised “in practice” in the particular 

case; only in that way can we discern whether limits on the 

exercise of discretion “actually ‘create[] a significant risk of 

prolonging [an inmate’s] incarceration.’” 548 F.3d at 1100 

(quoting Fletcher v. Reilly, 433 F.3d 867, 876-77 (D.C. Cir. 

2006)) (alterations in original). In apparent erroneous 

reference to section 7B1.3(f), the judge said that the 

guidelines “require” consecutive sentences. App. 95. It is not 

evident on the record that the judge’s decision making was 

equivalent for ex post facto purposes to the discretionary 

choice between consecutive and concurrent sentencing, 

guided by the full range of sentencing factors made relevant 

by 18 U.S.C. 3553(a). 

A misapplication of revised Sentencing Guidelines would 

not necessarily violate the Ex Post Facto Clause or require 

resentencing if the record were clear that “the District Court 

would have imposed the same sentence under the older, more 

lenient Guidelines that it imposed under the newer, more 

punitive ones,” Peugh, 133 S. Ct. at 2088 n.8; see Gov’t Br. 

16-19. But, for the reasons just discussed, the record here 
10 

does not make that clear. Instead, as the government 

acknowledges, the district judge appears to have been under 

the misconception that he was constrained by section 

7B1.3(f). See App. 95. An erroneous belief that a harsher 

sentencing requirement displaced an otherwise broadly 

discretionary choice creates the kind of risk of increased 

punishment against which the Ex Post Facto Clause protects. 

See Peugh, 133 S. Ct at 2082. We remand for resentencing so 

as not to pretermit the trial judge’s role in exercising the full 

discretion the law provides. 

B. 

The three other Olano factors also support vacatur and 

remand for resentencing here: The ex post facto violation was 

plain, it affected Head’s substantial rights, and it impaired the 

integrity of the sentencing proceeding. 507 U.S. at 732. 

The district court’s error was “plain.” Olano, 507 U.S. at 

734. In this circuit, one circumstance in which an error may 

be plain is “if, at the time it was made, a clear precedent in the 

Supreme Court or this circuit established its erroneous 

character.” United States v. Terrell, 696 F.3d 1257, 1260 

(D.C. Cir. 2012); see In re Sealed Case, 573 F.3d 844, 851 

(D.C. Cir. 2009) (holding that an error can be plain even in 

the absence of binding case law where it violates an 

“absolutely clear” legal norm). In January 2012, when the 

district court revoked Head’s supervised release and ordered 

him imprisoned, precedent from this circuit established that 

sentencing a defendant under Guidelines other than those in 

effect at the time of the offense that “created a substantial risk 

that [the] sentence [would be] more severe” was a violation of 

the Ex Post Facto Clause. See Turner, 548 F.3d at 1100. 

Application of the wrong Guidelines affected Head’s 

“substantial rights.” Olano, 507 U.S. at 734 (quoting Fed. R. 
11 

Crim. P. 52(b)). In the sentencing context, an error affects a 

defendant’s substantial rights where there is “a reasonable 

likelihood that the sentencing court’s obvious errors affected 

his sentence.” United States v. Saro, 24 F.3d 283, 288 (D.C. 

Cir. 1994). The circuit courts are in broad agreement that, 

even under plain-error review, the use of the wrong 

Guidelines, resulting in the risk of an increased sentence, 

“should be presumed to affect the defendant’s substantial 

rights.” See United States v. Syme, 276 F.3d 131, 158 (3d Cir. 

2002) (quoting United States v. Knight, 266 F.3d 203, 207 

(3d. Cir. 2001); see also, e.g., United States v. Davis, 397 

F.3d 340, 349-50 (6th Cir. 2005) (collecting cases from the 

Second, Seventh, Eighth, Ninth, and Tenth Circuits). To the 

extent that the district judge may have understood the 2011 

Guidelines to require consecutive sentencing here, that 

created a risk of a longer term of incarceration than Head 

would have received under the 1988 Guidelines—a risk 

sufficient to violate the Ex Post Facto Clause, see Peugh, 133 

S. Ct. at 2084, and impair Head’s substantial rights, Saro, 24 

F.3d at 288. 

On plain-error review, a court of appeals should remedy 

any error that “seriously affect[s] the fairness, integrity or 

public reputation of judicial proceedings.” Puckett v. United 

States, 556 U.S. 129, 135 (2009) (quoting Olano, 507 U.S. at 

736). We exercise that discretion here because, as a practical 

matter, the district court’s error may have extended Head’s 

incarceration by nearly three years. Application of the wrong 

Guidelines, apparently resulting in a substantially increased 

sentence, warrants vacation of the sentence. See, e.g., United 

States v. John, 597 F.3d 263, 285-86 (5th Cir. 2010); United 

States v. Davis, 397 F.3d 340, 349 (6th Cir. 2005). Our 

decision accords with that of several courts conducting plainerror review that have found similar sentencing increases, or 

risks of increases, to be sufficiently significant to call for 
12 

reversal. See, e.g., United States v. Myers, 772 F.3d 213, 219 

(5th Cir. 2014); United States v. Woodard, 744 F.3d 488, 497 

(7th Cir. 2014); United States v. John, 597 F.3d 263, 286 (5th 

Cir. 2010); Davis, 397 F.3d at 345-49; United States v. 

Comstock, 154 F.3d 845, 850 (8th Cir. 1998); United States v. 

Orr, 68 F.3d 1247, 1252 (10th Cir. 1995). We hold that there 

is on this limited record the “requisite degree of risk,” Peugh, 

133 S. Ct. at 2082, that the district court’s decision stemmed 

from ex post facto application of a Guideline adopted after 

Head committed the offense to require resentencing. 

* * * 

We have carefully considered Head’s several other 

claims and find no further error. Pursuant to 18 U.S.C. 

§ 3742(f), we vacate the district court’s January 20, 2012, 

order and remand with instructions to re-sentence Head in 

light of the Sentencing Guidelines in effect at the time of his 

offense. 

So ordered. 
SENTELLE, Senior Circuit Judge, dissenting: While I

recognize that the majority correctly demonstrates that the

district court technically erred in the wording supporting its

sentence, I cannot join an opinion that vacates and remands the

trial court’s decision ostensibly under plain error review. 

Indeed, I fear that this circuit is drifting toward a jurisprudence

in which there is no distinction between reviewing for “plain

error” and simply reviewing to determine whether the district

court erred. See United States v. Brown, 808 F.3d 865 (D.C. Cir.

2015).

The majority acknowledges that appellant “failed to

present” his ex post facto “argument to the district court.” Maj.

Op. at 2. It further acknowledges that we will therefore review

the court’s “decision only for plain error.” I would note the

context of that review arises from a sentencing proceeding in

which the district court stated:

Well, based upon the conviction, the Court revokes your

period of supervised release in this case. The [S]entencing

[C]ommission guidelines actually require that the sentence

here—which I’ll give you the minimum under the

guidelines, which is 30 months. But the guidelines do

require that it be consecutive unless I find a basis for

departure.

Because of your really poor prior record, I can’t find a basis

for departure, so the 30 months will be consecutive.

App. 95.

If we are in fact reviewing this proceeding under the plain

error standard, then we affirm unless we conclude that the

district court committed (1) legal error that (2) was plain, (3)

affected the defendant’s “substantial rights,” and (4) seriously
2

affected the “fairness, integrity or public reputation of the

judicial proceedings.” United States v. Olano, 507 U.S. 725,

731–32 (1993) (quoted at Maj. Op. 8).

The legal error element is no different than legal error under

review other than plain error, except that we do not notice it

unless it meets the total criteria applicable under the plain error

standard. The majority, after a thorough scholarly plunge into

the history of the applicable guidelines, concludes that while the

sentencing judge correctly stated the requirements of the current

guidelines as to consecutive or concurrent sentencing, the

version in effect in 1988 at the time of the defendant’s

commission of his first offense (for which the current revocation

is punishment), unlike the guidelines in effect at the time of the

revocation, gave the district judge discretion to sentence

concurrently rather than consecutively. While I am not at all

certain that this error satisfies any common definition of “plain,”

I acknowledge that it is error. However, when the judge’s

record recitation goes on to make plain that he knew that he

could depart and enter a concurrent sentence but was unwilling

to do so because of the seriousness of the defendant’s record, the

chances that this error (whether or not plain) affected the

defendant’s substantial rights seem to me exceeding small and,

at best, theoretical. Likewise, the entry of a sentence that by the

majority’s acknowledgment could be entered based on the

judge’s discretion even under the old guidelines, and would be

required to be entered under the current guidelines, hardlyseems

to me to seriously affect the “fairness, integrity or public

reputation of the judicial proceedings.”

Therefore, Irespectfully dissent from what appears to me to

be a conclusion not warranted under plain error review.