United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2012 Decided October 19, 2012 

No. 07-3054 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

GREGORY TERRELL, 

APPELLANT

Appeal from the United States District Court 

for the District of Columbia 

(No. 03cr00207-01) 

Sandra G. Roland, Assistant Federal Public Defender, 

argued the cause for appellant. With her on the briefs was 

A.J. Kramer, Federal Public Defender. Neil H. Jaffee and 

Lisa B. Wright, Assistant Federal Public Defenders, entered 

appearances. 

Katherine M. Kelley, Assistant U.S. Attorney, argued the 

cause for appellee. With her on the brief were Ronald C. 

Machen Jr., U.S. Attorney, and Roy W. McLeese III and Mary 

B. McCord, Assistant U.S. Attorneys. Elizabeth Trosman, 

Assistant U.S. Attorney, entered an appearance.
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Before: SENTELLE, Chief Judge, GRIFFITH, Circuit Judge, 

and WILLIAMS, Senior Circuit Judge. 

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

WILLIAMS, Senior Circuit Judge: Appellant Gregory 

Terrell pleaded guilty to unlawful possession with intent to 

distribute five grams or more of cocaine base in violation of 

21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). On April 24, 2007, 

the district court sentenced him to 210 months of 

imprisonment, five years of supervised release, and a $100 

special assessment. Terrell challenges that sentence on two 

primary grounds. First, he argues that it violates the ex post 

facto clause of the Constitution because the United States 

Sentencing Guidelines Manual applied by the district court 

was promulgated after he committed the offense of conviction 

and may have resulted in a harsher sentence than the one 

yielded by the Manual in effect at the time of offense. 

Second, he contends that the district court had an erroneously 

limited view of its discretion to impose a below-Guidelines 

sentence following the Supreme Court’s decision in United 

States v. Booker, 543 U.S. 220 (2005). 

Although we reject Terrell’s ex post facto argument, we 

are persuaded by his claim as to the district court’s concept of 

its discretion, and therefore vacate the sentence and remand 

for resentencing. 

* * * 

 Because Terrell failed to raise either of his arguments 

before the district court, we review his claims for plain error. 

Of the canonical statement’s four requirements for plain error, 

the first two are that there be error and that it be “plain.” 

United States v. Olano, 507 U.S. 725, 732 (1993). In its role 
3

as the second requirement, “plain” simply means “clear.” 

United States v. Williams-Davis, 90 F.3d 490, 507 (D.C. Cir. 

1996). A ruling’s error is clear if, at the time it was made, a 

clear precedent in the Supreme Court or this circuit 

established its erroneous character. See, e.g., United States v. 

Mouling, 557 F.3d 658, 664 (D.C. Cir. 2009). 

Ex post facto claim. This contention is fatally 

undermined by the absence of any clear precedent at the time 

of sentencing. At all times relevant to this appeal, the 

Sentencing Guidelines directed courts generally to “use the 

Guidelines Manual in effect on the date that the defendant is 

sentenced.” USSG § 1B1.11(a). But if application of that 

mandate would violate the ex post facto clause, a court must 

apply the Guidelines Manual that was “in effect on the date 

that the offense of conviction was committed.” Id.

§ 1B1.11(b)(1). Application of a post-offense Guidelines 

Manual violates the ex post facto clause if there is a 

substantial risk that it will result in a more severe sentence 

than the defendant would have received under the Manual that 

was in effect when he committed the offense. See United 

States v. Turner, 548 F.3d 1094, 1100 (D.C. Cir. 2008). 

Terrell committed his offense in April 2003, when the 

2002 Guidelines Manual was in effect. At the sentencing in 

2007, the district court started its analytical process with the 

pre-sentence report, which had been drafted under the 2005 

Guidelines Manual. (By the time of sentencing, the 2006 

Guidelines had become applicable, but on the issue in 

question there was no difference between the 2005 and 2006 

versions.) Terrell argues that there is a substantial risk that he 

received a harsher sentence under the 2005 Manual than he 

would have received under the 2002 version. 

His contention is based on an amendment to § 3E1.1, the 

Guidelines provision that governs adjustments in offense level 
4

for acceptance of responsibility. At all relevant times, 

§ 3E1.1(a) directed a sentencing court to reduce a defendant’s 

offense level by two levels if he “clearly demonstrates 

acceptance of responsibility for his offense.” But the second 

part of the provision—§ 3E1.1(b)—was amended after Terrell 

committed the offense. At the time of offense, § 3E1.1(b) 

directed the district court to reduce a defendant’s offense level 

by one additional level—that is, to award a “third point” for 

acceptance of responsibility—if the initial offense level was 

16 or higher and the defendant “assisted authorities in the 

investigation or prosecution of his own misconduct” either by 

timely providing complete information regarding his 

involvement or by timely notifying authorities of his intention 

to plead guilty. With the amendment, which went into effect 

on April 30, 2003, § 3E1.1(b)’s “third point” became 

available only “upon motion of the government.” 

During Terrell’s sentencing proceedings, the judge 

expressed a desire to award the third point. He asked the 

attorneys and the probation officer who attended the hearing 

whether he had discretion to do so sua sponte. Tr. 3/27/07, at 

20:2-4. Based on their responses, he concluded that he did 

not, id. at 22:13-16, which was correct under the amended 

version of § 3E1.1(b) but not under the version in the 2002 

Manual. The district court then asked the government to 

move for the third point, explaining that “188 months is just 

as serious as 210 months. I mean, there’s a numerical 

difference, but in the scheme of things in the real world 

there’s not a heck of a lot of difference.” Id. at 23:11-15. 

Counsel for the government refused to move for the third 

point, arguing that Terrell had not provided authorities with 

the requisite assistance. Id. at 25:7-10. Because the district 

court believed it could not award the third point 

independently, Terrell received only a two-point reduction in 

his offense level for acceptance of responsibility. The district 
5

court sentenced him at the low end of the resulting Guidelines 

range.

Terrell argues that the ex post facto clause required the 

district court to apply the 2002 Guidelines Manual. Under it, 

the judge had full discretion to award (and, Terrell contends, 

likely would have awarded) the third point. That would have 

reduced Terrell’s offense level by an additional step, 

decreasing his Guidelines range. But assuming the soundness 

of that claim, we believe that any error in non-application of 

the 2002 Manual was not a clear error. (For that reason, we 

need not reach the government’s arguments that Terrell’s plea 

agreement bars his claim and that application of the 2005 

Manual didn’t violate the ex post facto clause.) 

After Booker rendered the Guidelines advisory in 2005, 

courts disagreed about whether applying a post-offense 

Guidelines Manual that yielded a higher sentencing range 

would continue to violate the ex post facto clause. Compare, 

e.g., United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 

2006) (holding that the ex post facto clause “should apply 

only to laws and regulations that bind rather than advise”), 

with, e.g., United States v. Carter, 490 F.3d 641, 643 (8th Cir. 

2007) (holding that after Booker the ex post facto clause 

continued to apply to adverse Guidelines changes). Neither 

this court nor the Supreme Court had decided the issue when 

Terrell was sentenced. See United States v. Andrews, 532 

F.3d 900, 909 (D.C. Cir. 2008) (noting—more than a year 

after Terrell’s sentencing—that “[t]his circuit has not yet 

determined whether, after Booker, application of a later (than 

the date-of-offense) Guidelines Manual that yields a higher 

sentence continues to raise an ex post facto problem”). The 

issue remained unresolved until our decision in Turner, 548 

F.3d at 1099-1100, holding that the ex post facto clause would 

apply notwithstanding Booker. 
6

Because the law was unsettled when Terrell was 

sentenced, the district court’s failure to apply the 2002 

Manual did not constitute plain error, assuming it was error at 

all. See Mouling, 557 F.3d at 664. Booker had unsettled the 

law, and neither the Supreme Court nor this court had yet 

resettled it. 

Scope of sentencing discretion. On February 13, 2007, 

less than three months before Terrell was sentenced, we 

rejected the idea that the Guideline range should be 

considered presumptively reasonable. United States v. 

Pickett, 475 F.3d 1347, 1353 (D.C. Cir. 2007). We held in 

Pickett that “[a] sentencing judge cannot simply presume that 

a Guidelines sentence is the correct sentence.” Id. Instead, 

we said that with respect to each individual defendant, the 

court must “evaluate how well the applicable Guideline 

effectuates the purposes of sentencing enumerated in [18 

U.S.C.] § 3553(a).” Id. The Supreme Court endorsed the 

same rule shortly after Terrell was sentenced. See Rita v. 

United States, 551 U.S. 338, 351 (2007) (holding that a 

“sentencing court does not enjoy the benefit of a legal 

presumption that the Guidelines sentence should apply,” 

although a within-Guidelines sentence may be presumed 

reasonable on appeal); Gall v. United States, 552 U.S. 38, 49-

50 (2007) (reiterating Rita’s holding that a sentencing judge 

“may not presume that the Guidelines range is reasonable”). 

(In United States v. Anderson, 632 F.3d 1264, 1269 (D.C. Cir. 

2011), we noted that the Supreme Court made this rule clear 

in Rita, but we said nothing about Pickett. Whether the rule 

for our circuit was first clearly established in Rita or Pickett

was of no consequence in Anderson, but it is here. Pickett

first established this rule in our circuit.) 

Statements that the district court made in this case 

suggest that, notwithstanding Pickett, the court took too 

narrow a view of its authority to deviate from the Guidelines. 
7

Throughout the proceedings, the court stated that it would 

sentence Terrell below the applicable Guidelines range only if 

it found “compelling reasons” to do so. See, e.g., Tr. 6/27/06, 

at 4:6-14 (“There would have to be compelling reasons for the 

Court not [to] impose an advisory guideline sentence.”); id. at 

7:8, 7:18-20 (“Now, I’m not so sure compelling reasons exist 

here. . . . [I]f you think there’s a basis for the Court to impose 

something other than an advisory guideline sentence it’s going 

to have to be for compelling reasons.”); see also Tr. 8/4/05, at 

4:16-18 (“In all likelihood, I’m going to follow the guidelines 

even though they’re advisory. In all likelihood I’m going to 

do that.”). The court explained that it had found “compelling 

reasons” to deviate from the Guidelines in only two prior 

sentencings. Tr. 6/27/06, at 4:6-14. Even after we issued our 

decision in Pickett, the court indicated that it was continuing 

to apply its “compelling reasons” approach. See Tr. 3/27/07, 

at 10:2-3 (“The question becomes why shouldn’t the Court 

impose a [within-Guidelines] sentence of 210 months? . . . I 

just can’t think of any compelling reasons why I should not 

impose a sentence of 210 months.”). 

The district court’s “compelling reasons” rule is 

functionally equivalent to a presumption that the Guidelines 

range is reasonable, blocking a non-Guidelines sentence in the 

absence of special, “compelling” circumstances. See, e.g., 

United States v. Alexander, 556 F.3d 890, 893 (8th Cir. 2009); 

United States v. King, 541 F.3d 1143, 1145 (5th Cir. 2008). 

Pickett had clearly forbidden that approach prior to Terrell’s 

sentencing. 

The government argues nonetheless that the district court 

committed no error. As the government notes, the district 

court stated repeatedly that the Guidelines were merely 

advisory and that it would refer to the § 3553 factors in 

determining Terrell’s sentence. See, e.g., Tr. 6/27/06, at 3:8-

10; Tr. 4/24/07, at 15:14, 18:12-14. Moreover, it was clearly 
8

aware of Terrell’s individual circumstances and took those 

circumstances into account in crafting his sentence. But 

neither of these observations defeats Terrell’s claim. A judge 

might well recognize that he is not bound by the Guidelines 

but nonetheless believe (erroneously) that the Guidelines are 

presumptively reasonable. Likewise, a judge might have a 

deep understanding of a defendant’s background but 

nonetheless believe (again erroneously) that he must pick out 

some especially “compelling” circumstance from that 

background in order to deviate from the Guidelines range. 

The district court’s approach in this case plainly contravened 

Pickett, and the government’s arguments do not convince us 

otherwise. 

Having determined that the district court committed an 

error that was clear at the time of sentencing, we must 

consider whether Terrell has shown the other two elements 

that are required for him to prevail—the requirements that the 

error affects “substantial rights” and “seriously affects the 

fairness, integrity or public reputation of judicial 

proceedings.” Olano, 507 U.S. at 732 (citations, internal 

quotation marks, and brackets omitted). To show that an error 

affected substantial rights, a defendant must demonstrate “a 

reasonable likelihood” that the error affected the outcome, 

United States v. Gomez, 431 F.3d 818, 822 (D.C. Cir. 2005), 

and in the sentencing context that probabilistic showing is 

“slightly less exacting” than that required for trial errors, 

United States v. Saro, 24 F.3d 283, 287-88 (D.C. Cir. 1994). 

Finally, as to the fourth element, we have held that because 

“keeping [a] defendant in prison longer for improper reasons” 

affects the fairness, integrity, and public reputation of judicial 

proceedings, we should ordinarily exercise our discretion to 

correct a clear error that causes such a result. In re Sealed 

Case, 573 F.3d 844, 852-53 (D.C. Cir. 2009). 
9

We think the defendant has shown a reasonable 

likelihood that he would have received a shorter sentence but 

for the district court’s error. Throughout the proceedings, the 

district court took actions with the apparent hope of lowering 

Terrell’s Guidelines range. For example, the judge delayed 

the proceedings so as to allow Terrell a chance to obtain a 

reduced sentence by cooperating with the government, see Tr. 

6/27/06, at 11:2-24, and to see whether Pickett’s holding as to 

the crack/powder cocaine sentencing disparity would provide 

a basis for reducing the sentence, see Tr. 11/28/06. And most 

strikingly, as noted above, the judge asked the government to 

award Terrell a third point for acceptance of responsibility, 

arguing that 188 months of imprisonment—the low end of the 

Guidelines range that would apply if Terrell received the third 

point—was “just as serious as” 210 months of imprisonment 

(presumably in terms of satisfying the sentencing purposes 

laid out in § 3553(a)). Tr. 3/27/07, at 20-23. 

The government contends that the record as a whole 

precludes a finding of prejudice. Indeed, some of the district 

court’s statements at sentencing suggest that the judge 

believed a 210-month sentence was appropriate without 

reference to any “compelling reasons” requirement. See, e.g., 

Tr. 4/24/07, at 15:12-17 (explaining that Terrell “seems . . . to 

fit the profile of the career offender regulations . . . and, 

accordingly, should be sentenced to that voluntarily [sic] 

guideline range unless there are some 3553 factors or other 

factors to take it out of that category, but I’m at a lost [sic] to 

find . . . just what those other factor[s] are”). 

Those contradictions in the record do not defeat Terrell’s 

claim, however. Because the error is one of sentencing, 

Terrell need only meet the “somewhat lighter” burden of 

showing prejudice. Saro, 24 F.3d at 288. The district court 

made serious efforts to find a route to a reduced Guidelines 

range, all of which failed. It could have achieved exactly the 
10

same result by sentencing Terrell below the Guidelines—and 

under a correct understanding of the law, nothing barred it 

from doing so. (The district court’s statement that a 188-

month sentence was “just as serious” as a 210-month sentence 

also calls into question whether the court believed the 210-

month sentence it ultimately imposed was truly “sufficient, 

but not greater than necessary,” to achieve the goals of 

sentencing, as required by 18 U.S.C. § 3553(a).) 

Because Terrell has shown a reasonable likelihood that 

the district court’s plain error lengthened his sentence, we also 

conclude that the error seriously affected the fairness, 

integrity, or public reputation of judicial proceedings. See In 

re Sealed Case, 573 F.3d at 852-53. Terrell has established 

all of the elements required for reversal on plain error review, 

and we therefore conclude that he is entitled to resentencing. 

* * * 

The judgment is vacated and the case remanded for 

resentencing. 

So ordered.