United States v. Herbert, 428 F. App'x 37

Herbert pled guilty to failure to update sex offender registration under 18 U.S.C. § 2250(a) and larceny from a credit union under 18 U.S.C. § 2113(b).
District court sentenced Herbert to 15 months’ imprisonment and a life term of supervised release, plus restitution for the larceny.
The PSR erroneously referenced U.S.S.G. § 5D1.2(b)(2) for sex offenses, suggesting the statutory maximum term of supervised release could apply.
The district court adopted the PSR but did not on the record recalculate the Guidelines range for supervised release.
Herbert challenged the procedural aspects of the supervised release calculation on appeal.
The Second Circuit vacated the life-term of supervised release and remanded for resentencing to resolve the proper Guidelines range and related issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether PSR error on Guidelines reference was procedural error	Herbert argues PSR used §5D1.2(b)(2) inapplicable to his offense.	Government concedes the reference was erroneous and misstates the range.	Yes; error rendered supervised release calculation procedurally unreasonable.
Whether remand is required for resentencing on supervised release	N/A (Herbert argues procedural error exists); seek correct range.	N/A	Remanded for resentencing to determine the correct Guidelines range.
Whether life term of supervised release was proper given the error	N/A	N/A	Vacated; Court did not decide substantive reasonableness; remand to address range.

Gall v. United States, 552 U.S. 38 (2007) (procedural review of sentencing under Gall framework; duty to calculate and explain range)
Cavera v. United States, 550 F.3d 180 (2d Cir. 2008) (en banc; standard for reasonable sentence within range)
Tutty v. United States, 612 F.3d 128 (2d Cir. 2010) (deferential abuse-of-discretion standard for sentences)
Diaz v. United States, 176 F.3d 52 (2d Cir. 1999) (plain-error review for procedural sentencing issues)
Villafuerte v. United States, 502 F.3d 204 (2d Cir. 2007) (requiring clear or obvious error at time of appellate review)
United States v. Folkes, 622 F.3d 152 (2d Cir. 2010) (per curiam; district court may resentence under §3553(a))
United States v. Rigas, 490 F.3d 208 (2d Cir. 2007) (range-of-permissible-decisions principle)
United States v. Gibbs, 578 F.3d 694 (7th Cir. 2009) (disagreement on Guidelines range where life term possible)
United States v. Deans, 590 F.3d 907 (8th Cir. 2010) (Guidelines range extending to life in context)
United States v. Poe, 556 F.3d 1113 (10th Cir. 2009) (guidelines range extending to life; varies by circuit)