United States v. Rodolfo Moreno, 685 F. App'x 474

Moreno pleaded guilty to conspiracy to distribute heroin (21 U.S.C. § 846) and possession with intent to distribute heroin (21 U.S.C. § 841(a)(1)) after being caught with heroin during a high-speed chase while on home confinement for prior drug convictions.
Probation recommended sentencing under the Career Offender Guideline; Moreno objected and reserved the right to challenge the career-offender designation.
The district court overruled objections, noted a 2008 sentencing judge had labeled Moreno a career offender based on the same record, and sentenced him at the bottom of the guidelines to 151 months’ imprisonment and 4 years supervised release.
On appeal Moreno renewed his objection to the career-offender classification and raised, for the first time, a constitutional challenge to the career-offender guidelines.
The Sixth Circuit concluded the 2008 court had erred in treating multiple closely timed state sentences as separate for career-offender predicate counting, but found Moreno nonetheless qualified as a career offender based on other prior convictions and the 2008 federal conviction.
The court held any prior mis-scoring was harmless because the district court independently and correctly calculated the guideline range and relied on proper bases for sentencing; Moreno’s constitutional challenges were not shown to be plain error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court erred by relying on a 2008 career-offender finding	Government: prior record and 2008 conviction support career-offender status	Moreno: 2008 court miscounted prior state sentences (no intervening arrest), so he was not a career offender then	Court: 2008 court erred on counting but error harmless—district court correctly calculated guidelines based on other predicates and 2008 conviction; career-offender range 151–188 months upheld
Whether sentencing calculation of guidelines was correct	Government: district court’s calculation was proper and resulted in correct guideline range	Moreno: initial reliance on prior erroneous designation created uncertainty about the sentence imposed	Court: district court’s discussion and alternative bases show it would impose same sentence; no reversible error
Whether Moreno’s constitutional challenges to career-offender guidelines require reversal	Government: guideline design issues are for Congress/Commission and courts have discretion post-Booker	Moreno: guidelines (career-offender) violate due process and equal protection	Court: Moreno did not adequately raise or show a constitutional violation on appeal; no plain error warrants reversal
Standard of review for newly raised constitutional claim	N/A	Moreno: challenges meriting review despite being raised on appeal	Court: reviewed for plain error affecting substantial rights; claim fails

Gall v. United States, 552 U.S. 38 (sentencing reasonableness review and abuse-of-discretion standard)
United States v. Collins, 828 F.3d 386 (defining procedural sentencing error and abuse of discretion)
United States v. Brooks, 628 F.3d 791 (de novo review of guideline legal interpretations; clear-error review of facts)
United States v. Yancy, 725 F.3d 596 (plain-error review for issues first raised on appeal)
United States v. Powell, 798 F.3d 431 (defining "intervening arrest" for guideline criminal-history counting)
United States v. Kamper, 748 F.3d 728 (district courts’ discretion to depart based on policy disagreements post-Booker)
United States v. Cooper, 739 F.3d 873 (district courts’ role in individualized sentencing decisions)
United States v. Booker, 543 U.S. 220 (rendering the federal sentencing guidelines advisory)