22 F.4th 630
7th Cir.2022Background
- In 2019 Loving fled from an Indiana trooper after a traffic stop; officers found 271 g cocaine and 56 g heroin and charged him with possession with intent to distribute.
- The PSR set a base offense level of 24 (drug quantity), added +2 for reckless endangerment (§ 3C1.2), and subtracted -2 for acceptance (§ 3E1.1), yielding total offense level 24 and a Guidelines range of 57–71 months (CHC II).
- The government moved for the additional third acceptance point under § 3E1.1(b) (which would lower the range to 51–63) and separately asked the court to apply a one‑level upward departure/variance under § 3C1.2 appl. note 6 (to reach the equivalent of 57–71). Loving agreed on the third‑point issue but opposed the extra level.
- The district court announced total offense level 24 (57–71 months), overruled Loving’s objection, and sentenced him to 71 months (the top of that range), stating the sentence was within the applicable Guidelines range.
- On appeal Loving argued (1) the court failed to apply the parties’ agreed third acceptance level and (2) the court improperly used § 3C1.2 appl. note 6 to increase the calculated Guidelines range rather than as a basis for an upward departure/variance. The Seventh Circuit vacated and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument (Loving) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Waiver / invited error | No invited error; Loving objected to the increase under § 3C1.2 at sentencing | Govt says Loving invited/waived review by accepting dispute framing | Court: No invited error; Loving preserved objections and did not forfeit review |
| Third acceptance‑point (§ 3E1.1(b)) | Court failed to grant/explain denial of govt’s motion for 3rd point; PSR and parties agreed to it | Govt asked for the third point (and later relied on note 6 for upward treatment) | Court: District court may deny the motion but must explain denial; here it failed to explain — error requiring remand |
| Use of § 3C1.2 appl. note 6 (departure vs. calculation) | Court improperly used a departure provision at step one to increase the calculated offense level (procedural error) | Govt contended the note justified treating range as effectively higher (urged one‑level upward departure or its equivalent) | Court: Applying note 6 to change the calculated Guidelines range (step one) was procedural error; note may be used at step two/for variance but not to miscalculate range |
| Harmlessness of errors | Errors are not harmless because court repeatedly said sentence was "within the Guidelines" and did not clearly state it would impose same sentence regardless of correct range | Govt argued any error was harmless because § 3553(a) factors would still justify 71 months | Court: Errors not harmless; vacated sentence and remanded for resentencing |
Key Cases Cited
- United States v. Pennington, 908 F.3d 234 (7th Cir. 2018) (preservation and invited‑error principles)
- United States v. Bartlett, 567 F.3d 901 (7th Cir. 2009) (preservation rule requiring a party to present its position at trial)
- United States v. Titus, 821 F.3d 930 (7th Cir. 2016) (need for district court to explain Guidelines calculations for appellate review)
- United States v. Bokhari, 430 F.3d 861 (7th Cir. 2005) (Guidelines calculation authority)
- United States v. Mount, 675 F.3d 1052 (7th Cir. 2012) (prior holding on mandatory third acceptance point)
- United States v. Williamson, 598 F.3d 227 (5th Cir. 2010) (contrasting view on third acceptance point)
- United States v. Vargas, 961 F.3d 566 (2d Cir. 2020) (explaining that a district court must explain denial of government motion for third acceptance point)
- United States v. Pankow, 884 F.3d 785 (7th Cir. 2018) (post‑Booker guidance: courts may analogize to departure provisions when assessing § 3553(a) factors)
- United States v. Brown, 732 F.3d 781 (7th Cir. 2013) (departure provisions remain relevant in advisory system)
- Rosales‑Mireles v. United States, 138 S. Ct. 1897 (2018) (first step is correct Guidelines calculation)
- Peugh v. United States, 569 U.S. 530 (2013) (relationship between Guidelines and § 3553(a))
- United States v. Booker, 543 U.S. 220 (2005) (Guidelines are advisory)
- Molina‑Martinez v. United States, 578 U.S. 189 (2016) (explain significance when sentence is chosen in relation to Guidelines range)
- United States v. Hines‑Flagg, 789 F.3d 751 (7th Cir. 2015) (harmlessness review for Guidelines calculation errors)