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D ock e t 99-5642

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. e du/thir dc ir c uit_2001/204Filed September 6, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-5642

UNITED STATES OF AMERICA

v.

RANGI KNIGHT,

Appellant

Appeal from the United States District Court
for the District of Delaware (D.C. Crim. No. 99-cr-00010-2) District Judge: Honorable Joseph J. Longobardi

Submitted Under Third Circuit LAR 34.1(a) July 16, 2001

Before: MANSMANN, SCIRICA and RENDELL, Circuit Judges.

(Filed: September 6, 2001)

Carl Schnee, Esquire United States Attorney Richard G. Andrews, Esquire First Assistant U.S. Attorney Office of the United States Attorney

1201 Market Street P.O. Box 2046, Suite 1100 Wilmington, DE 19899-2046

COUNSEL FOR APPELLEERaymond M. Radulski, Esquire

1225 North King Street Legal Arts Building Wilmington, DE 19801

COUNSEL FOR APPELLANT

OPINION OF THE COURT

MANSMANN, Circuit Judge.

Rangi Knight appeals from his sentence as a career offender, asserting that the District Court based h is
sentence on non-includable offenses. We hold that u nder the plain error doctrine, application of an incorre ct Federal Sentencing Guidelines range presumptively affects substantial rights, even if it results in a sentenc e that is also within the correct range. Accordingly, we hold that the District Court committed plain error when it select ed Knight's sentence from within the wrong range and w e will vacate Knight's sentence and remand for sentencing so that the District Court may apply the correct Guidelines range in the first instance.1

I.

Knight's presentence investigation report contained a recommended sentence based on the Guidelines. The r eport concluded, inter alia, that Knight should be assign ed to Criminal History Category VI based on either (a) hi s total of 14 criminal history points or (b) his classificatio n as a "career offender". This criminal history category p roduced a Guidelines sentencing range of 151 to 188 months. N o objection was raised to the PSI in court. At the se ntencing hearing, at which time sentence was rendered in accordance with the Guideline range which all parti es believed to be correct, the District Court stated : "Due to the nature and severity of the defendant's prior cr iminal

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1. Our jurisdiction is pursuant to 28 U.S.C.S 1291 and 18 U.S.C. S 3742(a)(2).

2history, a sentence at the middle of the range is a ppropriate."2

The District Court sentenced Knight to 162 months o f imprisonment.

The government now concedes that Knight's criminal history score was erroneously calculated as Categor y VI because that classification included (a) offenses w hich should properly have been excluded under U.S.S.G. S 4A1.2(d)(2)(B)3 and (b) a finding of "career offe nder" which was improperly premised on the inclusion of convict ions for possession with intent to deliver cocaine and reckl ess endangerment, which are not includable.4 Because t hree of the criminal history points attributed to Knight sh ould not have been, and because he should not have been clas sified as a career offender, Knight should have been sente nced based on Criminal History Category V, rather than C ategory VI. Thus, the correct Guideline range for Knight wa s 140 to 175 months, rather than the range of 151 to 188 mon ths applied by the District Court.

II.

As we explained above, Knight's sentence was select ed from the wrong Guideline range, but it also falls w ithin the correct Guideline range. Upon review, we are requir ed under the Sentencing Reform Act of 1984, 18 U.S.C. SS 3551 et seq. (the "Act"), to determine not only whether the sentence "is outside the applicable guideline r ange" but also whether it "was imposed as a result of an inco rrect application of the sentencing guidelines". 18 U.S.C .A. S 3742(e)(2), (3). See Williams v. United States, 5 03 U.S.

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2. See District Court's July 27, 1999 Judgement and Commitment Order at 6. In addition, in sentencing Knight, the Court noted that "when a judge is confronted with a history of criminal like this . . . [he is]

stuck in the guidelines that have been placed on [defenda nt] . . . ." Appendix

at 64.

3. More specifically, the score included points for probationary sentence offenses committed while Knight was under 18 years of age and which occurred more than five years prior to the offenses for which Knight was being sentenced.

4. Under a proper reading of U.S.S.G. S 4B1.2(3), n either of these
convictions should have been considered for career offender purposes.

3193, 202 (1992) (holding that "the reviewing court is obliged

to conduct two separate inquiries" corresponding to these separate grounds for review). Even though a sentenc e falls within the correct range, it nevertheless resulted from an incorrect application of the Guidelines if it was c hosen from the incorrect range. See id. at 203 ("a sentence is imposed `as a result of ' an incorrect application of the G uidelines
when the error results in the district court select ing a sentence from the wrong guideline range"). In such a case, remand for resentencing is mandated by the Act:"If the court of appeals determines that the sentence was i mposed . . . as a result of an incorrect application of th e sentencing guidelines, the court shall remand the case for fur ther sentencing proceedings with such instructions as th e court considers appropriate." 18 U.S.C.A. S 3742(f)(1). S ee also Williams, 503 U.S. at 202 ("First, was the sentence imposed . . . as a result of an incorrect application of th e Guidelines? If so, a remand is required under S 374 2(f)(1).").

Notwithstanding this mandatory and unconditional statutory language, our sister Courts of Appeals ha ve held that where a defendant has failed to object to a pu rported error before the sentencing court, our review on ap peal is only to ensure that plain error was not committed. See Fed. Rule Crim. P. 52(b).5 Under this standard we must f ind that (1) an error was committed, (2) the error was plain , i.e., clear or obvious, and (3) the error affected the de fendant's substantial rights. In addition, even where plain e rror exists, our discretionary authority to order correc tion is to be guided by whether the error seriously affects th e fairness, integrity or public reputation of judicia l proceedings. See, e.g., United States v. Nappi , 24 3 F.3d 758, 732, 734 (3d Cir. 2001).6

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5. But see United States v. Young, 981 F.2d 180, 19 0 n.1 (5th Cir. 1993) (Justice, J., dissenting) (observing that "mandator y nature of the Supreme Court's language in Williams would indicate " that the contemporaneous objection rule does not apply "in a case involving misapplication of the federal sentencing guidelines ").

6. See generally Michael O'Shaughnessy, Appellate R eview of Sentences, 88 Geo. L.J. 1637, 1643 (May 2000) ("If the defenda nt . . . fails to raise an alleged sentencing error at sentencing . . . the claim will only be reviewed on appeal for plain error. Even if the all eged sentencing error is plain error, an appellate court may still affirm the sentence on the ground that the error was harmless.") (citing cases ).

4There is no question that error was committed and t hat

it was plain because, under the Guidelines, Knight should have been charged with three fewer criminal history points
and should not have been classified as a "career of fender".
The Government concedes that the first two elements of our plain error test are met, and further, that if we d etermine that Knight's substantial rights were affected, it would not be appropriate to argue that we should not exercise our discretion to correct the error.7 Nonetheless, the government contends that remand is unnecessary beca use Knight cannot show that his sentence would have bee n different had the sentencing range been properly ca lculated. Thus, this appeal turns on whether application of a n incorrect guideline range resulting in a sentence t hat is also within the correct range affects substantial rights . We hold that it presumptively does.

Ordinarily, a defendant who failed to object to an error before the trial court must demonstrate prejudice b y showing that the outcome -- in this context, the se ntence -- was affected, in the sense that it likely would have been different but for the error. However, we have recog nized that in some circumstances, such prejudice may be presumed. As we recently explained:

Normally, in order for an error to "affect s ubstantial rights" under the third prong of the [plain error] test, the error must have been "prejudicial"--in o ther words, "[i]t must have affected the outcome of the district court proceedings." It is the defendant who bears the burden of persuasion with respect to prejudi ce. However, the Supreme Court has cautioned tha t some errors to which no objection was made should be

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7. The government's concession aside, we believe th at a sentence resulting from a plainly erroneous misapplication o f the Guidelines gives rise to at least a presumptively appropriate occasi on for exercise of our discretionary power to correct the error. Cf. Unite d States v. Ford, 88 F.3d 1350, 1356 (4th Cir. 1996) ("sentencing a defe ndant at the wrong guideline range seriously affects the fairness, int egrity and public reputation of the judicial proceedings."); United S tates v. Weaver, 161 F.3d 528, 530 (8th Cir. 1998) ("public's confidence in the judicial

process would be undermined if an inadvertent . . . error w ere to be allowed to influence the length of a criminal defendant's sent ence").

5"presumed prejudicial" if the defendant cann ot make a

specific showing of prejudice.

United States v. Adams, 252 F.3d 276, 285 (3d Cir. 2001) (citations omitted), quoting United States v. Olano , 507 U.S. 725 (1993).

Our determination in Adams that denial of a crimina l defendant's right of allocution is presumptively pr ejudicial was predicated on two factors: First, allocution is supposed to affect sentencing, as the defendant may be his o wn "most persuasive and eloquent advocate" in a senten cing hearing. Adams, 252 F.3d at 288. See also Adams, 25 2 F.3d at 288 ("the right of allocution `is designed to temper punishment with mercy in appropriate cases, and to ensure that sentencing reflects individualized circumstanc es' ") (quoting United States v. Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994)). Second, although allocution ought to h ave an effect, "the impact of [its] omission on a . . . di scretionary [sentencing] decision is usually enormously difficu lt to ascertain." Id. at 287 (quoting Alba Pagan, 33 F.3d at 130).

Both of these factors also support our recognition of presumptive prejudice from application of the wrong Guidelines range. First, it is beyond cavil that th e Guidelines are intended to, and do, affect sentenci ng.8 Indeed, that is their very raison d'etre. Second, a bsent a fortuitous comment by the sentencing judge on the r ecord, it is very difficult to ascertain the impact of an erroneous Guidelines range. We therefore conclude that an err or in application of the Guidelines that results in use o f a higher sentencing range should be presumed to affect the defendant's substantial rights.

Although we have not previously had occasion to add ress the element of prejudice where a sentence falls wit hin both

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8. See, e.g., United States v. Thayer , 201 F.3d 21 4, 230 (3d Cir. 1999) (observing that although a sentencing court may"app roach the Guidelines with a `tentative view' of the sentence appropriate to the case . . . [it] may also select a sentence based on its position within the

range specified by the Guidelines"); United States v. Lav oie, 19 F.3d 1102, 1104 (6th Cir. 1994) (observing that "a district co urt's sentencing determination is impacted by its understanding of t he appropriate guideline range").

6the correct and incorrect Guidelines ranges, our ho lding

today is in keeping with our prior cases that have recognized the potentially prejudicial nature of Gu ideline calculation errors. See United States v. Pollen , 9 78 F.2d 78, 90 (3d Cir. 1992) ("The district court's improper c alculation . . . , resulting in a significantly higher Guideli ne sentencing range, certainly is an error that seriou sly affected [defendant]'s substantial rights and so am ounts to plain error."); United States v. Felton, 55 F.3d 86 1, 869 n.3 (3d Cir. 1995) ("This circuit and others have found that the miscalculation of a defendant's offense level `cert ainly is error that seriously affect[s] the defendant's righ ts, and so amounts to plain error.' ") (quoting Pollen, 978 F. 2d at 90).9

The practical effect of the presumption we recogniz e today is that a sentence based upon a plainly erron eous Guideline range will ordinarily be remanded so that the District Court may exercise its discretion to choos e an appropriate sentence based upon the correct range, unless

the record shows that the sentence was unaffected b y the error. This approach effectuates the intent of the Act that "it [be] the prerogative of the district court, not the court of appeals, to determine, in the first instance, the s entence that should be imposed in light of certain factors properly considered under the Guidelines." Williams , 503 U. S. at 205. We applied similiar reasoning in the plain err or context in Pollen, wherein we "decline[d] to engage in the type of speculation urged by the government concern ing whether the district court would have [imposed the same sentence] under a properly calculated Guideline sen tence range", noting that such speculation "is inappropri ate" in light of the inherently discretionary nature of the sentencing court's decision. Pollen, 978 F.2d at 89 -90.

In Pollen we considered remand necessary despite th e government's assertion that the district court had

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9. Although the errors at issue in Pollen and Felto n involved
miscalculation of the offense level rather than of the criminal history,

we can see no reason to treat one type of misapplicati on of the Guidelines differently from another. Choosing a sentence from the wrong range has the same propensity to affect a defendant's substan tial right to receive a
fair sentence no matter what the source or nature o f the error.

7"intimated" that it would have imposed the same sen tence

under a lower Guideline range. 978 F.2d at 89-90. I n the present case, the District Court did not intimate t hat the
sentence would have been the same if the correct ra nge were applied. On the contrary, the Court stated tha t it was selecting a sentence "at the middle of the range", and that its decision was predicated on the defendant's inco rrectly assessed prior criminal history. Under these circum stances, even if we were inclined to disregard our admonitio n in Pollen not to speculate, we would be unable to conc lude that it is even reasonably likely that the same sen tence would have been imposed if the correct range and hi story were considered. Because the record does not permit us to find that the same sentence would have been imposed , we hold that Knight was prejudiced by the incorrect application of the Guidelines, and we therefore rem and to allow the District Court to impose a sentence based upon a correct application of the Guidelines.

Our holding today is in accord with decisions of se veral of our sister Courts of Appeals, which effectively (albeit not explicitly) apply a similar presumption. For exampl e, the
Seventh Circuit has held:

Because it . . . sentenced [defendant] on th e basis of the wrong Guidelines range, the district cou rt committed plain error. . . . . Although the sentence that
the district court selected in this case is within the
correct as well as the incorrect Guidelines range, we must remand unless we have reason to believe that the
error did not affect the district court's se lection of a particular sentence.

United States v. Wallace, 32 F.3d 1171, 1174-75 (7t h Cir. 1994). Similarly, the Sixth Circuit has explained t hat:

If the range the court used resulted from an incorrect application of the guidelines, an after-the- fact determination that the sentence actually imp osed happened to be within the proper range does not cure the court's error. The actual sentence impos ed in such
a case is not material because it is the dis trict court's application of the guidelines to arrive at t he sentencing range that is at issue, not that court's dis cretionary choice of sentence within that range.

8United States v. Lavoie, 19 F.3d 1102, 1104 (6th Ci r. 1994).

See also, e.g., United States v. Plaza-Garcia, 914 F.2d 345, 347-48 (1st Cir. 1990) (remanding sentence within b oth erroneously applied and correct Guideline ranges un der plain error doctrine, because sentence "may well ha ve been influenced by the [erroneous] sentencing recommenda tion"); United States v. Martinez-Rios, 143 F.3d 662 (2d Ci r. 1998) (although it was unclear whether correcting error w ould have any effect on sentencing level, remand was req uired under plain error analysis);10United States v. Ford , 88 F.3d 1350, 1356 (4th Cir. 1996) (holding, where court miscalculated criminal history points, that "[t]he error clearly affected [defendant]'s substantial rights b ecause the extra points caused [defendant] to be sentenced at a more severe guideline range"); United States v. Spears, 159 F.3d 1081, 1088 (7th Cir. 1998) (remanding where juvenil e offenses were wrongly included, resulting in wrong criminal history category: "The district court looked at the wrong sentencing range when determining [defendant]'s sen tence. We have determined this to constitute plain error." ); United States v. Robinson, 20 F.3d 270, 273 (7th Cir. 1994 ) ("A sentence based on an incorrect guideline range cons titutes an error affecting substantial rights and can thus constitute plain error."); United States v. Weaver, 161 F.3d 528, 530 (8th Cir. 1998) (rejecting government's as sertion that "error did not affect [defendant's] substantia l rights
because . . . sentence he received fell within the Guidelines range . . . which would have applied absent the err or");11

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10. The Second Circuit expressly rejected the gover nment's reliance on United States v. Bermingham, 855 F.2d 925 (2d Cir. 1988) for the proposition that the "sentence [could] be sustained because the sentence actually imposed . . . was within the Guidelines ra nges for both [the correct and incorrect levels]." 143 F.3d at 675. Th e Court noted that "Bermingham permits this Court to affirm a sentence derived from an incorrect offense level only where the sentence als o falls within the sentencing range for the correct offense level, and the District Court has indicated that it would have imposed the same sente nce under either offense level." Id. at 676 (emphasis in original). In contrast, the record here "suggest[ed]" that the District Court would ha ve imposed a lesser

sentence. Id.

11. In Weaver, the Eighth Circuit noted the Distric t Court's indication at sentencing that it would sentence the defendant"at the bottom" of the

9United States v. Osuna, 189 F.3d 1289, 1295 (10th C ir.

1999) (holding where correction of error "alters[de fendant]'s sentence range from 51-63 months to 46-57 months .

.. . [t]he fact that the guideline ranges overlap does n ot make a plain error harmless.").

We recognize that other courts have found that sentencing errors do not affect a substantial right where, because the sentence fell within both the right and the wrong range, the same sentence could have been impo sed without error. See, e.g. United States v. Leonard, 157 F.3d 343 (5th Cir. 1998) (upholding sentence imposed whe re it could be reinstated on remand). We believe that the se cases provide too little protection for the substantial r ight at issue, and that the rule which we follow today bett er effectuates the Guidelines' purpose to institute fa ir and uniform sentencing.12 A defendant has a right to a sentence that not only falls within a legally permissible ra nge, but that was imposed pursuant to correctly applied law. 13 See United States v. Urrego-Linares, 879 F.23 1234, 123 90 (4th Cir. 1989) (observing that defendant is entitled to have "his sentence determined in accordance with the applicab le

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applicable range, and observed that because "the co urt might well have
sentenced [defendant] to a lesser term . . . under the range that [should] have been applied", it was "unwilling to say that [ defendant]'s
substantial rights were not affected". 161 F.3d at 530 (citing with approval United States v. Wallace, 32 F.3d 1171, 1174-75 (7th Cir. 1994)). 12. See S. Report 86, U.S. Code Cong. & Admin. News 1984, p. 3269 ("The provisions for appellate judicial review of s entences in section

3742 are designed to reduce materially any remaining unw arranted disparities by giving the right to appeal a sentence outside th e guidelines and by providing a mechanism to assure that sentences insi de the guidelines are based on correct application of the guidelines.") ( emphasis added). See also, e.g., United States v. Knobloch, 131 F.3d 366 , 373 (3d Cir. 1997) (recognizing that "the Guidelines were designed to promote fair and consistent treatment of offenders"); United States v. Lavoie, 19 F.3d 1102, 1103 (6th Cir. 1994) (noting that "appellate review of sentences is intended to further the Sentencing Reform Act of 19 84's primary goal of insuring correct application of the guidelines").

13. The Act recognizes these distinct rights in pro viding separately for correction of sentences "outside the applicable gui deline range" and sentences "imposed as a result of an incorrect appl ication of the sentencing guidelines". 18 U.S.C.A. S 3742(e)(2), ( 3).

10law") (citing Townsend v. Burke, 334 U.S. 736 (1948 )).

Because imposition of a sentence selected from the wrong range is likely to impair a defendant's right to a fair sentence, we believe it is appropriate under plain error analysis to remand for sentencing under the correct range notwithstanding a defendant's inability to establis h that his separate right to receive a sentence within the app licable guideline range was also impaired.

III.

For the foregoing reasons, we will vacate the Distr ict Court's judgment and order of sentence and remand w ith
instructions for the District Court to resentence K night within the correct Guidelines range.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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