United States v. Ross
16-3334
| 10th Cir. | Nov 29, 2017Background
- Ross was indicted for Hobbs Act robbery (18 U.S.C. §§ 1951) and brandishing a firearm in relation to that robbery (18 U.S.C. § 924(c)); he pleaded guilty only to the § 924(c) count under a plea agreement that dismissed the robbery count and included a government recommendation of 84 months.
- The PSR correctly calculated the Guidelines range for the § 924(c) conviction (statutory minimum seven years, 84 months) and separately estimated what Ross’s Guidelines range would have been had he been convicted of the robbery count.
- The PSR stated the robbery count would have had a total offense level of 22 (after a 3‑level acceptance reduction) and, with Criminal History IV, a range of 63–78 months; the seven‑year § 924(c) term would have run consecutive.
- Ross did not object to the PSR at sentencing; the district court adopted the PSR as accurate and imposed an upward variant sentence of 108 months, explaining it considered the likely robbery exposure when varying upward on the § 924(c) sentence.
- On appeal Ross argued the PSR’s robbery offense‑level (22) was clearly erroneous because it necessarily included a firearms enhancement that cannot be applied when the defendant is separately convicted under § 924(c), and thus the district court plainly erred by relying on an inaccurate calculation for a dismissed charge.
- The Tenth Circuit affirmed, holding: (1) the disputed PSR calculation implicated factual findings that the district court would need to resolve; (2) even if erroneous, Ross’s argument did not show plain error because no controlling precedent made such an error ‘‘clear or obvious.’n
Issues
| Issue | Plaintiff's Argument (Ross) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether the district court plainly erred by relying on an allegedly erroneous PSR calculation of the Guidelines for a dismissed robbery count when imposing an upward variance on the § 924(c) sentence | PSR’s offense level 22 for robbery necessarily included a firearm enhancement that is inapplicable when the defendant is separately convicted under § 924(c); relying on that inaccurate calculation was plain error | The PSR could plausibly have reached level 22 via other permissible adjustments (e.g., obstruction, supervised‑release enhancement); factual disputes about enhancements are for the district court to resolve | No plain error. The contested calculation involved factual issues for the district court and, in any event, Ross failed to show an error that was ‘‘clear or obvious’’ under controlling law |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (sentencing reasonableness standard and errors requiring reversal)
- United States v. Blake, 59 F.3d 138 (10th Cir.) (cannot apply a Guidelines firearms enhancement for robbery when defendant is separately convicted under § 924(c))
- United States v. Martinez, 610 F.3d 1216 (10th Cir. 2010) (reasonableness review framework)
- United States v. DeChristopher, 695 F.3d 1082 (10th Cir. 2012) (definition of plain error as requiring settled law)
- United States v. Zhou, 717 F.3d 1139 (10th Cir. 2013) (unpreserved factual disputes at sentencing do not satisfy plain error)