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United States v. Moore.

No. 20-3171. D.Kan. Judge Phillips. Sentencing Bargain—“Sentence in Advance”—Probation Revocation Hearing—Invited Error Doctrine—Plain Error Review—Procedural Reasonableness of Sentence.

April 12, 2022

Defendant pleaded guilty to robbery under 18 USC § 1951(a). The probation office calculated the advisory guideline sentence range as 51 to 63 months’ imprisonment, and at the initial sentencing hearing, the government recommended a low-end sentence of 51 months’ imprisonment. Defendant requested time served and three years of supervised release. In response, the district court told defendant he had two options: (1) he could either take the government’s recommended sentence of 51 months’ imprisonment, or (2) if he satisfied an initial six-month probationary period, he could accept 48 months’ probation subject to at least 84 months’ imprisonment, depending on the violations, up to the statutory maximum for his underlying crime, which was 20 years. Defendant chose the second option. After six months, he returned to court in compliance with the conditions, and the court sentenced him to four years’ probation.

About 10 months after sentencing, defendant violated travel and housing conditions. At the probation revocation hearing, the parties and the probation office recommended sentences within the five to 11 months’ advisory range. The district court revoked probation and sentenced defendant to 84 months’ imprisonment.

Defendant argued on appeal that the sentence was procedurally unreasonable. The Tenth Circuit reviewed for plain error. Plain-error review requires a defendant to show (1) error (2) that is plain, (3) that affects the party’s substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. In federal sentencing, the district court must start with the facts, calculate the advisory guidelines range, and then decide whether a variance is warranted. Here, the district court’s sentence-in-advance system was procedurally unreasonable because the court could not have known whether defendant’s future conduct would justify the 33-month consecutive increase to the offered 51-month sentence.

After a defendant has violated a probation condition, courts are required to consider statutory factors when choosing between continuing the defendant on probation with or without modifications to terms or conditions, or revoking probation and resentencing defendant. To revoke probation, a district court must (1) reevaluate the case as it stood when the court imposed probation, based on the recommended guideline range in a pre-sentence report; and (2) impose a penalty for the violation of the judicial order imposing supervision. Here, the district court did not undertake the required two-step analysis, and it was unclear from the record how the court arrived at the 84-month sentence. The court plainly erred by preordaining a minimum future sentence and bypassing the required analysis that is available only after probation has been revoked. Further, there was a reasonable probability that the error altered defendant’s sentence, so his substantial rights were affected. And defendant demonstrated that the error affected the fairness, integrity, and public reputation of the judicial proceedings.

Because defendant demonstrated plain procedural error, the Tenth Circuit did not consider his substantive reasonableness challenge.

The sentence was vacated and the case was remanded for resentencing.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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