United States v. Kevin Weiner, 518 F. App'x 358

Weiner pled guilty to attempted coercion and enticement of a minor by computer under 18 U.S.C. § 2422(b).
PSR treated three pre-charge conduct incidents as separate ‘pseudo counts’ and included them as relevant conduct to compute an offense level of 35 and a guideline range 168–210 months.
District court adopted the PSR’s range and sentenced to 210 months after victim-impact testimony from the mother of Victim No. 2.
Weiner objected to the inclusion of pseudo counts and the relevant-conduct theory; the district court overruled those objections.
On appeal, the Sixth Circuit vacated and remanded for resentencing, affirming the admissibility of the mother’s testimony but holding the “pseudo counts” were not properly treated as relevant conduct.
The court remanded for resentencing and denied reassignment; issued opinions on victim testimony and other issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether pseudo counts were properly included in the offense level	Weiner argues the PSR miscalculated by treating pre-charge conduct as relevant conduct.	Weiner contends the conduct should be grouped or excluded per § 2G1.3 and § 1B1.3.	Vacate and remand for resentencing; pseudo counts not properly included.
Whether the district court properly interpreted grouping and relevant conduct under the guidelines	The Government contends grouping under § 3D1.2(d) is appropriate for multiple minors.	Weiner asserts the grouping and § 1B1.3(a)(2) are inapplicable given the different victims and conduct.	Grouping and relevant-conduct analysis incorrect; remand for resentencing with correct interpretation.
Whether victim-impact testimony from the mother of Victim No. 2 was improperly considered	The Government argues Rule 32 and 18 U.S.C. § 3771 allow victim-background information at sentencing.	Weiner contends the testimony was not proper victim-impact evidence and violated scope.	Testimony properly considered; affirmed admissibility for sentencing purposes.
Whether the case should be reassigned for resentencing	Gapinski guidance suggests reassignment may be warranted when improper information influenced sentencing.	Weiner seeks reassignment due to perceived bias from prior statements.	No reassignment; judge may reassess de novo on remand.

United States v. Tolbert, 668 F.3d 798 (6th Cir. 2012) (standard of review for factual findings and guidelines interpretation)
United States v. Byrd, 689 F.3d 636 (6th Cir. 2012) (clear-error review of factual findings; de novo for guidelines interpretation)
United States v. Gray, 692 F.3d 514 (6th Cir. 2012) (procedural reasonableness and need to consider § 3553(a) factors)
United States v. Martinez, 588 F.3d 301 (6th Cir. 2009) (application of § 3553(a) factors and abuse-of-discretion review)
United States v. Duckro, 466 F.3d 438 (6th Cir. 2006) (harmless-error standard in guideline miscalculations)
Pepper v. United States, 131 S. Ct. 1229 (S. Ct. 2011) (broad probative consideration permitted at sentencing)
United States v. Gapinski, 422 F. App’x 513 (6th Cir. 2011) (reassignment considerations on remand per Gapinski III)
United States v. Garcia-Robles, 640 F.3d 159 (6th Cir. 2011) (sentencing judge’s familiarity and de novo resentencing on remand)
United States v. Davis, 453 F. App’x 452 (5th Cir. 2011) (relevance of pre-charge conduct limits under § 1B1.3)
United States v. Lacefield, 250 F. App’x 670 (6th Cir. 2007) (grouping guidance under § 3D1.2 for multi-count scenarios)