2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-6-2001

USA v. Knight

Precedential or Non-Precedential:

Docket 99-5642

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Recommended Citation

"USA v. Knight" (2001). 2001 Decisions. Paper 204.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/204
Filed 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 APPELLEE 
 Raymond 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 his 

sentence on non-includable offenses. We hold that under 

the plain error doctrine, application of an incorrect Federal 

Sentencing Guidelines range presumptively affects 

substantial rights, even if it results in a sentence that is 

also within the correct range. Accordingly, we hold that the 

District Court committed plain error when it selected 

Knight's sentence from within the wrong range and we 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 report 

concluded, inter alia, that Knight should be assigned to 

Criminal History Category VI based on either (a) his total of 

14 criminal history points or (b) his classification as a 

"career offender". This criminal history category produced a 

Guidelines sentencing range of 151 to 188 months. No 

objection was raised to the PSI in court. At the sentencing 

hearing, at which time sentence was rendered in 

accordance with the Guideline range which all parties 

believed to be correct, the District Court stated :"Due to 

the nature and severity of the defendant's prior criminal 

_________________________________________________________________ 

1. Our jurisdiction is pursuant to 28 U.S.C.S 1291 and 18 U.S.C. 

S 3742(a)(2). 

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

The District Court sentenced Knight to 162 months of 

imprisonment. 

The government now concedes that Knight's criminal 

history score was erroneously calculated as Category VI 

because that classification included (a) offenses which 

should properly have been excluded under U.S.S.G. 

S 4A1.2(d)(2)(B)3 and (b) a finding of "career offender" which 

was improperly premised on the inclusion of convictions for 

possession with intent to deliver cocaine and reckless 

endangerment, which are not includable.4 Because three of 

the criminal history points attributed to Knight should not 

have been, and because he should not have been classified 

as a career offender, Knight should have been sentenced 

based on Criminal History Category V, rather than Category 

VI. Thus, the correct Guideline range for Knight was 140 to 

175 months, rather than the range of 151 to 188 months 

applied by the District Court. 

II. 

As we explained above, Knight's sentence was selected 

from the wrong Guideline range, but it also falls within the 

correct Guideline range. Upon review, we are required 

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 range" but 

also whether it "was imposed as a result of an incorrect 

application of the sentencing guidelines". 18 U.S.C.A. 

S 3742(e)(2), (3). See Williams v. United States, 503 U.S. 

_________________________________________________________________ 

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 [defendant] . . . ." 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), neither of these 

convictions should have been considered for career offender purposes. 

 3 
193, 202 (1992) (holding that "the reviewing court is obliged 

to conduct two separate inquiries" corresponding to these 

separate grounds for review). Even though a sentence falls 

within the correct range, it nevertheless resulted from an 

incorrect application of the Guidelines if it was chosen from 

the incorrect range. See id. at 203 ("a sentence is imposed 

`as a result of ' an incorrect application of the Guidelines 

when the error results in the district court selecting 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 imposed 

. . . as a result of an incorrect application of the sentencing 

guidelines, the court shall remand the case for further 

sentencing proceedings with such instructions as the court 

considers appropriate." 18 U.S.C.A. S 3742(f)(1). See also 

Williams, 503 U.S. at 202 ("First, was the sentence imposed 

. . . as a result of an incorrect application of the 

Guidelines? If so, a remand is required under S 3742(f)(1)."). 

Notwithstanding this mandatory and unconditional 

statutory language, our sister Courts of Appeals have held 

that where a defendant has failed to object to a purported 

error before the sentencing court, our review on appeal is 

only to ensure that plain error was not committed. See Fed. 

Rule Crim. P. 52(b).5 Under this standard we must find that 

(1) an error was committed, (2) the error was plain, i.e., 

clear or obvious, and (3) the error affected the defendant's 

substantial rights. In addition, even where plain error 

exists, our discretionary authority to order correction is to 

be guided by whether the error seriously affects the 

fairness, integrity or public reputation of judicial 

proceedings. See, e.g., United States v. Nappi , 243 F.3d 

758, 732, 734 (3d Cir. 2001).6 

_________________________________________________________________ 

5. But see United States v. Young, 981 F.2d 180, 190 n.1 (5th Cir. 1993) 

(Justice, J., dissenting) (observing that "mandatory 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 Review of Sentences, 

88 Geo. L.J. 1637, 1643 (May 2000) ("If the defendant . . . fails to raise 

an alleged sentencing error at sentencing . . . the claim will only be 

reviewed on appeal for plain error. Even if the alleged sentencing error 

is plain error, an appellate court may still affirm the sentence on the 

ground that the error was harmless.") (citing cases). 

 4 
There is no question that error was committed and that 

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 offender". 

The Government concedes that the first two elements of our 

plain error test are met, and further, that if we determine 

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 because 

Knight cannot show that his sentence would have been 

different had the sentencing range been properly calculated. 

Thus, this appeal turns on whether application of an 

incorrect guideline range resulting in a sentence that 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 by 

showing that the outcome -- in this context, the sentence 

-- was affected, in the sense that it likely would have been 

different but for the error. However, we have recognized 

that in some circumstances, such prejudice may be 

presumed. As we recently explained: 

 Normally, in order for an error to "affect substantial 

 rights" under the third prong of the [plain error] test, 

 the error must have been "prejudicial"--in other 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 prejudice. 

 However, the Supreme Court has cautioned that some 

 errors to which no objection was made should be 

_________________________________________________________________ 

7. The government's concession aside, we believe that a sentence 

resulting from a plainly erroneous misapplication of the Guidelines gives 

rise to at least a presumptively appropriate occasion for exercise of our 

discretionary power to correct the error. Cf. United States v. Ford, 88 

F.3d 1350, 1356 (4th Cir. 1996) ("sentencing a defendant at the wrong 

guideline range seriously affects the fairness, integrity and public 

reputation of the judicial proceedings."); United States v. Weaver, 161 

F.3d 528, 530 (8th Cir. 1998) ("public's confidence in the judicial 

process 

would be undermined if an inadvertent . . . error were to be allowed to 

influence the length of a criminal defendant's sentence"). 

 5 
 "presumed prejudicial" if the defendant cannot 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 criminal 

defendant's right of allocution is presumptively prejudicial 

was predicated on two factors: First, allocution is supposed 

to affect sentencing, as the defendant may be his own 

"most persuasive and eloquent advocate" in a sentencing 

hearing. Adams, 252 F.3d at 288. See also Adams, 252 

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 circumstances' ") 

(quoting United States v. Alba Pagan, 33 F.3d 125, 129 (1st 

Cir. 1994)). Second, although allocution ought to have an 

effect, "the impact of [its] omission on a . . . discretionary 

[sentencing] decision is usually enormously difficult 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 the 

Guidelines are intended to, and do, affect sentencing.8 

Indeed, that is their very raison d'etre. Second, absent a 

fortuitous comment by the sentencing judge on the record, 

it is very difficult to ascertain the impact of an erroneous 

Guidelines range. We therefore conclude that 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. 

Although we have not previously had occasion to address 

the element of prejudice where a sentence falls within both 

_________________________________________________________________ 

8. See, e.g., United States v. Thayer , 201 F.3d 214, 230 (3d Cir. 1999) 

(observing that although a sentencing court may"approach 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. Lavoie, 19 F.3d 1102, 

1104 (6th Cir. 1994) (observing that "a district court's sentencing 

determination is impacted by its understanding of the appropriate 

guideline range"). 

 6 
the correct and incorrect Guidelines ranges, our holding 

today is in keeping with our prior cases that have 

recognized the potentially prejudicial nature of Guideline 

calculation errors. See United States v. Pollen , 978 F.2d 78, 

90 (3d Cir. 1992) ("The district court's improper calculation 

. . . , resulting in a significantly higher Guideline 

sentencing range, certainly is an error that seriously 

affected [defendant]'s substantial rights and so amounts to 

plain error."); United States v. Felton, 55 F.3d 861, 869 n.3 

(3d Cir. 1995) ("This circuit and others have found that the 

miscalculation of a defendant's offense level `certainly is 

error that seriously affect[s] the defendant's rights, and so 

amounts to plain error.' ") (quoting Pollen, 978 F.2d at 90).9 

The practical effect of the presumption we recognize 

today is that a sentence based upon a plainly erroneous 

Guideline range will ordinarily be remanded so that the 

District Court may exercise its discretion to choose an 

appropriate sentence based upon the correct range, unless 

the record shows that the sentence was unaffected by 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 sentence 

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 error 

context in Pollen, wherein we "decline[d] to engage in the 

type of speculation urged by the government concerning 

whether the district court would have [imposed the same 

sentence] under a properly calculated Guideline sentence 

range", noting that such speculation "is inappropriate" 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 the 

government's assertion that the district court had 

_________________________________________________________________ 

9. Although the errors at issue in Pollen and Felton involved 

miscalculation of the offense level rather than of the criminal history, 

we 

can see no reason to treat one type of misapplication of the Guidelines 

differently from another. Choosing a sentence from the wrong range has 

the same propensity to affect a defendant's substantial right to receive a 

fair sentence no matter what the source or nature of the error. 

 7 
"intimated" that it would have imposed the same sentence 

under a lower Guideline range. 978 F.2d at 89-90. In the 

present case, the District Court did not intimate that the 

sentence would have been the same if the correct range 

were applied. On the contrary, the Court stated that it was 

selecting a sentence "at the middle of the range", and that 

its decision was predicated on the defendant's incorrectly 

assessed prior criminal history. Under these circumstances, 

even if we were inclined to disregard our admonition in 

Pollen not to speculate, we would be unable to conclude 

that it is even reasonably likely that the same sentence 

would have been imposed if the correct range and history 

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 remand 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 several 

of our sister Courts of Appeals, which effectively (albeit not 

explicitly) apply a similar presumption. For example, the 

Seventh Circuit has held: 

 Because it . . . sentenced [defendant] on the basis of 

 the wrong Guidelines range, the district court 

 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 selection of a 

 particular sentence. 

United States v. Wallace, 32 F.3d 1171, 1174-75 (7th Cir. 

1994). Similarly, the Sixth Circuit has explained that: 

 If the range the court used resulted from an incorrect 

 application of the guidelines, an after-the-fact 

 determination that the sentence actually imposed 

 happened to be within the proper range does not cure 

 the court's error. 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 sentence within that range. 

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

See also, e.g., United States v. Plaza-Garcia, 914 F.2d 345, 

347-48 (1st Cir. 1990) (remanding sentence within both 

erroneously applied and correct Guideline ranges under 

plain error doctrine, because sentence "may well have been 

influenced by the [erroneous] sentencing recommendation"); 

United States v. Martinez-Rios, 143 F.3d 662 (2d Cir. 1998) 

(although it was unclear whether correcting error would 

have any effect on sentencing level, remand was required 

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 because 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 juvenile 

offenses were wrongly included, resulting in wrong criminal 

history category: "The district court looked at the wrong 

sentencing range when determining [defendant]'s sentence. 

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 constitutes 

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 assertion 

that "error did not affect [defendant's] substantial rights 

because . . . sentence he received fell within the Guidelines 

range . . . which would have applied absent the error");11 

_________________________________________________________________ 

10. The Second Circuit expressly rejected the government'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 ranges for both [the 

correct and incorrect levels]." 143 F.3d at 675. The Court noted that 

"Bermingham permits this Court to affirm a sentence derived from an 

incorrect offense level only where the sentence also falls within the 

sentencing range for the correct offense level, and the District Court has 

indicated that it would have imposed the same sentence under either 

offense level." Id. at 676 (emphasis in original). In contrast, the record 

here "suggest[ed]" that the District Court would have imposed a lesser 

sentence. Id. 

11. In Weaver, the Eighth Circuit noted the District Court's indication at 

sentencing that it would sentence the defendant"at the bottom" of the 

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

1999) (holding where correction of error "alters[defendant]'s 

sentence range from 51-63 months to 46-57 months . .. . 

[t]he fact that the guideline ranges overlap does not 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 imposed 

without error. See, e.g. United States v. Leonard, 157 F.3d 

343 (5th Cir. 1998) (upholding sentence imposed where it 

could be reinstated on remand). We believe that these cases 

provide too little protection for the substantial right at 

issue, and that the rule which we follow today better 

effectuates the Guidelines' purpose to institute fair and 

uniform sentencing.12 A defendant has a right to a sentence 

that not only falls within a legally permissible range, but 

that was imposed pursuant to correctly applied law. 13 See 

United States v. Urrego-Linares, 879 F.23 1234, 12390 (4th 

Cir. 1989) (observing that defendant is entitled to have "his 

sentence determined in accordance with the applicable 

_________________________________________________________________ 

applicable range, and observed that because "the court 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 sentences in section 

3742 

are designed to reduce materially any remaining unwarranted disparities 

by giving the right to appeal a sentence outside the guidelines and by 

providing a mechanism to assure that sentences inside 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 1984's primary goal of 

insuring correct application of the guidelines"). 

13. The Act recognizes these distinct rights in providing separately for 

correction of sentences "outside the applicable guideline range" and 

sentences "imposed as a result of an incorrect application of the 

sentencing guidelines". 18 U.S.C.A. S 3742(e)(2), (3). 

 10 
law") (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 establish that his 

separate right to receive a sentence within the applicable 

guideline range was also impaired. 

III. 

For the foregoing reasons, we will vacate the District 

Court's judgment and order of sentence and remand with 

instructions for the District Court to resentence Knight 

within the correct Guidelines range. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 11