In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-1382 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

DARRELL A. LOVING, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division. 

No. 2:20-cr-00010-JTM-APR-1 — James T. Moody, Judge. 

____________________ 

ARGUED DECEMBER 14, 2021 — DECIDED JANUARY 3, 2022 

____________________ 

Before SYKES, Chief Judge, and HAMILTON and ST. EVE, Circuit Judges. 

HAMILTON, Circuit Judge. Appellant Darrell Loving pled 

guilty to drug crimes and was sentenced to 71 months in 

prison, the top of the Sentencing Guideline range as found by 

the district court. On appeal Loving contends that the district 

court erred in calculating his guideline range. He argues that 

the court did not explain how it calculated the total offense 

level and that, regardless of the explanation, the court made 
2 No. 21-1382 

two guideline errors: disregarding the parties’ agreement for 

an additional one-level reduction in the offense level for 

timely acceptance of responsibility, and misusing a departure 

provision of the Sentencing Guidelines to determine the calculated range rather than as a basis for an upward departure 

or variance. Loving’s arguments are correct, and the record 

does not allow us to treat the errors as harmless. We vacate 

Loving’s sentence and remand for resentencing.

I. Factual and Procedural Background

When an Indiana State Police trooper stopped Loving for 

speeding in 2019, he had heroin and cocaine in his car. The 

trooper asked Loving if he had marijuana on him. Loving 

sped away, dragging the trooper several feet. As Loving continued to flee, he also drove at high speed through the scene 

of a recent car accident, endangering other officers and firstresponders. Officers eventually caught up with Loving and 

arrested him. They found 271 grams of cocaine and 56 grams 

of heroin. Loving pled guilty to possessing cocaine and heroin 

with intent to distribute them in violation of 21 U.S.C. 

§ 841(a)(1). 

In addressing the Sentencing Guidelines, the presentence 

investigation report proposed setting Loving’s offense level at 

24 based on the drug quantity. U.S.S.G. § 2D1.1(a)(5). With a 

two-level enhancement for reckless endangerment during 

flight, see § 3C1.2, offset by a two-level reduction for accepting responsibility, § 3E1.1(a), the PSR proposed a total offense 

level of 24 and a criminal history category of II, yielding an 

advisory guideline range of 57 to 71 months in prison. 

The government then pressed two guideline issues in its 

sentencing memorandum. First, it argued that Loving 
No. 21-1382 3

“should receive the third point of acceptance of responsibility,” see U.S.S.G. § 3E1.1(b), lowering his offense level to 23 

and his advisory range to 51 to 63 months. Loving agreed on 

that point. Second, the government urged the court to sentence Loving above that lower guideline range, as if he had 

earned another offense level: 

From this [51 to 63-month] range, the government is seeking a one-level upward departure, 

pursuant to Guidelines Section 3C1.2, application note 6, for substantial risk of death or bodily injury to more than one person during reckless endangerment during flight. This one-level 

upward departure results in the equivalent of a 

range of 57 to 71 months.

Loving opposed that extra offense level, whether as an upward departure or as an extra level added to the calculated 

range.

The district court adopted the findings from the PSR, but 

it did so without addressing, let alone adopting, the parties’ 

agreement that Loving should receive the third level for acceptance of responsibility and that his calculated guideline 

range should be based on a total offense of level of 23. The 

court found that Loving’s total offense level was 24, that his 

criminal history category was II, and that his advisory guideline imprisonment range was 57 to 71 months. Loving objected to “the increase under 3C1.2, the upward variance taking it to 24.” In response, the government presented testimony that Loving’s flight through the scene of the car accident had endangered bystanders, establishing what the government called “the factual basis for a one-level upward variance” under application note 6 of U.S.S.G. § 3C1.2. 
4 No. 21-1382 

The court overruled Loving’s objection and kept the calculated guideline range at 57 to 71 months:

[D]efendant’s objection is not well taken; therefore, it is overruled. My findings stay in place, 

and I will repeat them. The defendant’s total offense level is 24. His criminal history category is 

2. That makes his advisory guidelines imprisonment range 57 to 71 months. 

After the court announced its guideline findings, Loving 

asked for a sentence of 48 to 54 months. The government recommended 71 months, arguing that “even if an appellate 

court thought that [Loving] shouldn’t have gotten the onepoint enhancement, just the 3553(a) factors ... would warrant 

the 71 months sentence.”

The district court sentenced Loving to 71 months in 

prison. The court said three times that the case called for a 

sentence within the applicable guideline range. The court said 

that Loving showed no mitigating circumstances that “warrant a sentence below the applicable advisory” range, that his 

crimes were “deserving of no less than a guideline sentence,” 

and that the appropriate sentence was “71 months ... which 

is within the applicable guidelines sentencing range.” The 

court also said that the statutory sentencing factors under 

18 U.S.C. § 3553(a) justified a within-guideline sentence:

[T]his sentence of imprisonment is imposed for 

the following reasons: It reflects the seriousness 

of the crimes of conviction. It promotes respect 

for the law. It provides just punishment for the 

crimes of conviction. It is sufficient but not 

greater than necessary to hold the defendant 
No. 21-1382 5

accountable for his criminal conduct. It takes 

into account the circumstances and the nature of 

the crimes of conviction and the background, 

history, and the personal characteristics of the 

defendant. It provides the defendant with correctional treatment in the most effective manner. It affords adequate deterrence to this type 

of criminal conduct. It protects the public from 

further crimes of this type by the defendant, and 

it avoids unwarranted sentence disparities 

among defendants.

The court issued a written judgment and Statement of Reasons the same day. In the Statement of Reasons, the district 

court checked a box indicating that it had adopted the guideline calculations in the PSR without change.

II. Analysis

On appeal, Loving argues that the district court made two 

procedural errors that affected his guideline range. First, the 

PSR’s calculated range (57 to 71 months) did not reflect the 

parties’ later agreement that Loving’s offense level should be 

reduced to 23, so that his guideline range would drop to 51 to 

63 months. Second, the district court treated the government’s 

request for “departing” from this 51- to 63-month range as if

his actual, calculated guideline range were 57 to 71 months. 

In doing so, Loving contends, the court mistakenly enhanced 

his offense level based on application note 6 of U.S.S.G. 

§ 3C1.2, which suggests consideration of a “departure” rather 

than a change in the calculated guideline range itself.
6 No. 21-1382 

A. Standard of Review

Before delving into the merits of these arguments, we address two matters concerning the standard of review. First, 

the government contends that Loving “invited”—and thus 

waived—the errors he asserts on appeal by accepting the government’s view that the correct guideline calculation depended on whether note 6 of U.S.S.G. § 3C1.2 applied here. 

We disagree. The sentencing transcript shows that Loving objected explicitly “to the increase under 3C1.2, the upward variance taking it to 24.” Loving is not challenging on appeal any 

choice he urged the district court to make. There was no invited error here. 

The government also argues that even if Loving did not 

invite the error, he forfeited his arguments by failing to raise 

them in the district court. Again we disagree. Loving clearly 

preserved his challenge to the guideline range. In his filings 

before the sentencing hearing, he argued for an offense level 

of 23 and a sentencing range of 51 to 63 months, as he does on 

appeal. At the hearing, he objected to the court’s use of offense 

level 24. These arguments preserved an objection to a higher 

offense level and sentencing range. Loving was not required 

to take a later “exception” to the court’s actions after its decision. See United States v. Pennington, 908 F.3d 234, 238 (7th Cir. 

2018). “[T]he Rules of Evidence and the Rules of Criminal Procedure require a litigant to make known the position it advocates and to present evidence and argument for that position,” but they “do not require a litigant to complain about a 

judicial choice after it has been made.” United States v. Bartlett, 

567 F.3d 901, 910 (7th Cir. 2009); see Fed. R. Crim. P. 51.
No. 21-1382 7

B. The Guideline Issues

Turning to the merits, we agree with Loving that the district court made procedural errors in calculating a total offense level of 24. First, the court did not explain why it 

adopted this total offense level. District courts must calculate 

a defendant’s total offense level in a manner that allows appellate review of the reasoning. United States v. Titus, 821 F.3d 

930, 933–34 (7th Cir. 2016), citing United States v. Bokhari, 430

F.3d 861, 863–64 (7th Cir. 2005). The sentencing transcript here 

does not show which of two possible paths the court followed 

in reaching offense level 24. The court could have adopted a 

total offense level of 24 from the PSR despite the parties’ 

agreement to reduce it by one level based on timely acceptance of responsibility. Or the court could have reduced 

the PSR’s calculation by one level in light of the parties’ agreement on the third acceptance level, but then accepted the government’s reliance on § 3C1.2, application note 6, to add a 

level to the guideline calculation rather than use an upward 

departure. The court’s explanation at sentencing could be 

read as indicating that both occurred, but that would have 

been internally inconsistent. Adopting both the calculations 

in the PSR and the government’s argument for an extra level 

under the application note would have resulted in an offense 

level of 25, not 24:

o Base offense level 24

o Reckless endangerment

enhancement, § 3C1.2

+2

o Acceptance of

responsibility, § 3E1.1

-2
8 No. 21-1382 

o Enhancement for

endangering multiple

people, § 3C1.2, appl. n.6

+1

Total offense level 25

This absence of an explicit rationale for the total offense level 

could itself be ground for remand. When the record “lacks 

sufficient clarity for this court to determine ... the district 

court’s methodology and final determinations pertaining to 

total offense level,” remand may be needed for the district 

court to make explicit its calculations. Titus, 821 F.3d at 934–

35 (remanding for resentencing where district court did not 

make explicit the factual findings that led to the total offense 

level) (internal citation omitted). In this case, however, remand is not based only on the absence of an explanation. Both 

possible rationales were erroneous for other reasons. 

First, if the court adopted the calculations from the PSR, 

then it erred by failing to explain why it declined to apply the 

further one-level reduction for acceptance of responsibility, to 

which the parties had agreed under U.S.S.G. § 3E1.1(b). In its 

current form, § 3E1.1 allows for a reduction of as much as 

three levels in the total offense level based on the defendant’s 

acceptance of responsibility. Section 3E1.1(a) provides for a 

two-level reduction. A third level is available if the offense 

level before applying § 3E1.1(a) is 16 or greater and if the government makes a motion to apply the third level. Loving argues that the court must grant the third-level reduction upon 

the government’s motion, citing United States v. Mount, 675 

F.3d 1052, 1057 (7th Cir. 2012). After we decided Mount, however, the Sentencing Commission amended the commentary 

to § 3E1.1 to clarify that the district court has the authority to 
No. 21-1382 9

deny a government motion for a third level. U.S.S.G. App. C., 

Amend. 775 (Nov. 1, 2013), discussed in United States v. Vargas, 961 F.3d 566, 580 (2d Cir. 2020). Amendment 775 added a 

paragraph to Note 6 to § 3E1.1 using the phrase “the court in 

deciding whether to grant the motion....” The Sentencing 

Commission’s explanation of the amendment discussed the 

conflict between our decision in Mount and United States v. 

Williamson, 598 F.3d 227, 230 (5th Cir. 2010), and explained 

that the amendment was intended to resolve the conflict 

against the Mount position by endorsing a sentencing court’s 

discretion to deny such a motion. 

That amendment to the commentary effectively superseded our holding in Mount that the third level is mandatory 

upon the government’s proper motion. The problem here is 

that the district court denied the government’s motion without giving any explanation. Even under Amendment 775, it is 

clear that a sentencing court must explain a denial of such a 

motion by the government. See Vargas, 961 F.3d at 584. That 

did not happen here.

Second, and on the other hand, if the court accepted the 

calculation from the government’s sentencing memorandum, 

where it urged a one-level increase to Loving’s offense level 

based on application note 6 of § 3C1.2, the decision runs into 

a different error: In that event, the court improperly used one 

of the departure provisions of the Sentencing Guidelines to 

calculate Loving’s advisory range. Since the Guidelines were 

deemed advisory in United States v. Booker, 543 U.S. 220 (2005), 

we have often said that sentencing courts are no longer required to engage in traditional departure analysis. E.g., United 

States v. Pankow, 884 F.3d 785, 793–94 (7th Cir. 2018); United 

States v. Brown, 732 F.3d 781, 786 (7th Cir. 2013). That does not 
10 No. 21-1382 

mean, however, that departure provisions are entirely obsolete. Departure provisions have always played an integral role 

in the advisory guideline sentencing system. E.g., Pankow, 884

F.3d at 793 (“we have emphasized that ‘district courts can still 

take guidance from the departure provisions ... and apply 

them by way of analogy when assessing the § 3553(a) factors’”), citing Brown, 732 F.3d at 786. 

But even after Booker, the first step in the sentencing process has remained correct calculation of the applicable guideline range. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904 

(2018); see U.S.S.G. § 1B1.1(a) (providing application instructions for Sentencing Guidelines). It is not until the second 

step, which is optional, that the court may consider the advice 

in the Sentencing Guidelines about potential departures. 

U.S.S.G. § 1B1.1(b). Finally, at step three, the court must consider the sentencing factors listed under 18 U.S.C. § 3553(a) 

and determine, in light of those factors, whether to accept or 

reject the advice of the Guidelines. U.S.S.G. § 1B1.1(c); Peugh 

v. United States, 569 U.S. 530, 536 (2013).

The problem with the district court’s use here of the relevant departure provision—application note 6 of U.S.S.G. 

§ 3C1.2—is that the court seems to have applied it at the 

wrong step of the sentencing process. Nothing prohibited the 

court from considering the provision—which suggests an upward departure may be appropriate if the defendant endangered multiple people during flight—at step two of the sentencing process, and using it to explain an upward variance 

from the guideline range. See United States v. Ramirez, 983 F.3d 

959, 962 (7th Cir. 2020) (affirming sentence where court relied 

on U.S.S.G. § 3C1.2, application note 6, to vary from correct 

guideline range). In this case, however, the district court 
No. 21-1382 11

relied on this provision at step one of the sentencing process 

to increase Loving’s calculated offense level and to anchor his 

advisory guideline range to “57 to 71 months.” This was a procedural error.

To be sure, the difference between adding one offense 

level in calculating the guideline range and applying an upward departure equivalent to one offense level might seem 

hypertechnical to some. That difference could easily be 

deemed harmless if the district court had acknowledged the 

difference and had indicated clearly that it would have no effect on the final sentence imposed. See United States v. HinesFlagg, 789 F.3d 751, 757 (7th Cir. 2015) (error in guideline calculation not shown to be harmless). Under either approach, 

the Sentencing Guidelines as a whole would point toward the 

same effective range for a prison sentence. In this case, however, we simply cannot deem harmless the apparent confusion between guideline range and upward departure.

First, at sentencing, the district court said three times that 

Loving deserved a sentence within the guideline range. Those 

statements are strong evidence that the erroneously calculated guideline range influenced the court’s chosen sentence. 

See Molina-Martinez v. United States, 758 U.S. 189, 199 (2016) 

(explaining that if a court explains the chosen sentence relative to the sentencing range, “then the Guidelines are in a real 

sense the basis for the sentence”) (emphasis in original). Second, 

as explained above, each of the two possible paths toward calculating the total offense level as 24 included an error. Finally, 

we cannot infer, based on the district court’s terse comments 

about the sentencing factors under 18 U.S.C. § 3553(a) that the 

court believed a 71-month prison sentence would be appropriate regardless of the correct guideline range.
12 No. 21-1382 

We express no opinion about whether 71 months in prison 

is an appropriate sentence for Loving. The PSR shows that he 

endangered multiple people during his flight, first by dragging an officer as he drove away and then by driving through 

the scene of a recent car accident. On remand, after considering the government’s motion for the third level of an acceptance-of-responsibility reduction and calculating Loving’s 

correct guideline range, the district court may consider a possible upward departure or variance and must consider the factors under 18 U.S.C. § 3553(a). Both paths allow consideration 

of the circumstances of Loving’s offenses and his attempted 

flight, as long as the path of the court’s reasoning is clear.

Loving’s sentence is VACATED and the case is 

REMANDED for resentencing.