United States v. Brenda Montgomery, 969 F.3d 582

Appellant Brenda Montgomery appealed her sentence; the Sixth Circuit held the district court miscalculated the Sentencing Guidelines range but deemed the error harmless and affirmed the sentence.
The appellate opinion relied in part on the district court’s on-the-record statement that it would have imposed the same sentence under 18 U.S.C. § 3553(a) even if the Guidelines calculation were wrong.
Montgomery argued on petition for panel rehearing that that district-court statement is boilerplate language routinely used in all sentencings and therefore should not weigh in the harmless-error analysis.
The panel denied the petition for rehearing because Montgomery raised this boilerplate argument for the first time on rehearing; the court treated the argument as untimely and inappropriate at that stage.
The panel nevertheless expressed skepticism about giving weight to standard sentencing colloquies in harmless-error review and noted that such pledges are poor evidence of the district court’s actual reliance on the Guidelines.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a district court’s on-the-record statement that it would impose the same sentence notwithstanding a Guidelines error supports a finding of harmless error	Montgomery: The statement is boilerplate used routinely and should not be credited in harmless-error analysis	U.S.: The statement is a legitimate indicator the court would have imposed the same sentence regardless of the Guidelines range	The panel relied on the statement as one factor supporting harmless error but expressed skepticism about treating boilerplate pledges as probative in future cases
Whether the court may consider an argument raised first in a petition for panel rehearing	Montgomery: Sought to raise the boilerplate-colloquy argument on rehearing	U.S.: Opposed reconsideration	Held: Argument raised for the first time on rehearing was untimely and therefore not considered; petition for panel rehearing denied

United States v. Morrison, 852 F.3d 488 (6th Cir. 2017) (harmless-error test: affirm if record shows court would have imposed same sentence regardless of Guidelines)
United States v. McCarty, 628 F.3d 284 (6th Cir. 2010) (consideration of district-court statements in harmless-error analysis)
United States v. Obi, 542 F.3d 148 (6th Cir. 2008) (same)
United States v. Ward, 506 F.3d 468 (6th Cir. 2007) (same)
United States v. Cobb, [citation="766 F. App'x 226"] (6th Cir. 2019) (cited as precedent treating district statements as a factor in harmless-error review)
United States v. Steel, [citation="609 F. App'x 851"] (6th Cir. 2015) (same)
United States v. Hazelwood, 398 F.3d 792 (6th Cir. 2005) (harmless-error review aims to avoid unnecessary resentencing when outcome is certain)