United States v. Steven McCloud

testimony un- to deter- offered this not government or the evidence to understand issue; (b) testimony ... lay testimony. a fact mine Rule but as der (c) data; or ... facts sufficient based on it as It is court admitted such. prin- reliable product testimony is the district court therefore unclear (d) methods; expert ciples (or have) Agent have would could allowed principles reliably applied has an give testimony Lucas to his full as of the case. the facts methods expert. A court must Fed.R.Evid. “appear[ beyond ] not Because does whether to determine or apply Rule com- reasonable doubt expert. an See a witness as qualify not to of did not contribute to the verdict plained Carmichael, 526 v. U.S. Tire Co. Kumho obtained,” Lopez-Medina, 461 F.3d at 741 1167, 143 L.Ed.2d 238 (internal omitted), quotation marks va-we pro- had government if the Even notice, it is far from obvi- cate the conviction. expert duced have met Lucas could Agent ous that III. testimony requirements. expert Rule 702 reasons, we foregoing For the vacate opinion that an be requirement jury” is the same under for a conviction and remand new trial. “helpful 701(b). 702(a) under Rule See as Rule

McGowan, For F.2d at 1272-73. many Agent Lucas’s reasons

same jury as helpful lay not opinions were 701(b), and there testimony under Rule America, UNITED STATES of inadmissible, opinions his would not fore testimony expert Plaintiff-Appellee, un helpful have been 702(a). der Rule Agent Lucas ex- Additionally, although McCLOUD, Defendant- Steven expertise his cre-

plicitly referred Appellant. of authori- dentials, himself an aura giving No. 12-3810. stand, expert it is clear what ty opin- methodology he relied on to form Appeals, United States Court of (outside expertise of his on street ions Sixth Circuit. terms, had drug already slang 17, 2013. Sept. Testimony under Rule 702 granted). been product principles “the of reliable must be Rehearing Rehearing En Banc ... reliably applied ... and methods Denied Nov. 2013.* case.” Fed.R.Evid. 702. facts Here, virtually Lucas Agent “provided guiding principles

methodology him to decode wire- would enable ” Johnson, tapped phone calls.... at 294. afford the district

We “gatek its executing latitude” “broad certifying experts under eeping” role Co., 526 Rule 702. See Kumho Tire trial, 152-53, At 119 S.Ct. 1167. * Judge rehearing dissent. grant would for the reasons stated in his Borman Schad,

ON BRIEF: M. Kevin Office of Defender, Cincinnati, the Federal Public Ohio, Appellant. Benjamin for C. Glass- man, Office, Attorney’s Cin- cinnati, Ohio, Appellee. for KETHLEDGE, Before: ROGERS Judges; BORMAN, Circuit District Judge.** ROGERS, J., delivered the opinion court, KETHLEDGE, J., which BORMAN, D.J., joined, joined in part. KETHLEDGE, 606), (pg. J. delivered a opinion. BORMAN, separate concurring 606-18), D.J. (pp. separate delivered a opinion part concurring dissenting part.

OPINION

ROGERS, Judge. Circuit challenges Steven McCloud his 140- among month claiming other things that the district court considered wrong statutory range. pled McCloud guilty distributing grams 19.4 of crack cocaine, bond, was released and subse- quently appear failed to evading After law enforcement for over years, three was captured McCloud imprisonment sentenced to 140 months of years supervised and four Be- release. tween plea McCloud’s Fair Congress enacted the Act (FSA), of which reduced the sentencing range applicable to McCloud from 5-40 to 0-20 McCloud’s ** Borman, Michigan, sitting by designation. Paul Honorable D. Judge States District Eastern District release. by four-year supervised term of 140-175 months was range of (5-40 appeals now his sentence. the incorrect within both

entirely (0-20 years) and correct years) Although the court erred counsel failed ranges, Report, adopting the Presentence Although the district object statutory range 5^0 an incorrect listed statutory pre-FSA in using court erred years, error did not affect McCloud’s that not affect McCloud’s error did range, that argues that rights. substantial McCloud it is un- highly rights because substantial because the dis he must be resentenced statutory calculated likely properly statutory sen trict court used incorrect on the no Guidelines range with effect to tencing range. Because McCloud failed changed the district have range would below, object statutory range to this a within-Guidelines imposition of court’s af only plain claim reviewed for error is did court therefore The district sentence. rights. See fecting McCloud’s substantial McCloud’s other commit error. Blackwell, 739, 459 F.3d merit. are without arguments also Cir.2006). (6th pled When McCloud 2008, charged statutory was federal district guilty applicable McCloud However, co- distributing three years. passage counts 5-40 range court was (crack cocaine), in applicable violation of of in 2010 caine base the FSA reduced 3, § 2008. On range years, on December to and al statutory 21 U.S.C. 0-20 plea entered into a pled though guilty December McCloud McCloud since pled guilty he under which he when FSA agreement had not been sentenced in exchange enacted, indictment retroactively was the FSA applied one count — States, other counts. him. Dorsey for dismissal of See v. United pending -, on bond was released McCloud S.Ct. appear (2012). Therefore, failed to at his

sentencing, but he the dis- L.Ed.2d 250 large and remained at for over hearing adopted erred when it full the trict court eventually ar- pre-FSA was years. Report listing three McCloud Presentence for appeared statutory sentencing range. rested 21, 2012. June committed pro- While the district court error, requested did not cedural affect At rights, and resen- McCloud’s substantial duction under United (U.S.S.G.) accep- tencing required is therefore not on this 3E1.1 for ground. court The record makes clear that the responsibility. tance of rely a district court did not on the noting that such request, denied arriving ob- at a sentence incompatible with the reduction was struction-of-justice imprisonment. Although of 140 months of enhancement five-year removed under FSA applying court was U.S.S.G. 3C1.1, three-year and reduced the maximum sen- McCloud’s based on forty twenty years some- sentencing. The district tence effort to evade more distributing one convicted of applicable Guidelines court determined the cocaine, months, crack there adopted grams five be suggesting in the that the Report, which list- indication record in full the Presentence imposed district court would have lower as 5-40 applicable ed the post-FSA statutory on the imposed then sentence based years. The district court indicates, instead, record months, range. at the end of sentence of 140 low was the district court’s sentence driven range, to be followed McCloud’s Guidelines range, which was en- Court has made clear that “a McCloud’s Guidelines to obstruct begin hanced decision district court should all over justice proceedings by correctly calculating three avoid a sen- imposed range.” Gall v. end of Guide- tence at the low the correct 552 U.S. in turn en-

lines view, our L.Ed.2d tirely within the incorrect and correct both having reviewed innumerable Because the district ranges. transcripts, judges arrive do not error, court did not commit resen- a sentence within the statutory limitations required. tencing is not then consider whether that sentence Instead, -within falls the Guidelines range. incorrect cal- Although district court’s district, judges calculate the Guidelines range culation of the first, range then consider the factors in 18 error, typically plain amounts to the same if appro- U.S.C. 3553 to see is variance applicable statutory is not true for the Gall, 49-50, See priate. U.S. at range. This court has made that “[a] clear statutory 586. The serves range S.Ct. procedural court commits error only to limit the extent of a potential vari- (or by failing improperly to calculate calcu- ance from range. the Guidelines While an lating) range.” the Guidelines incorrect calculation of the Guidelines Rosenbaum, States v. 585 F.3d range seriously would affect (6th therefore Cir.2009). Failure to the cor- received, an sentence defendant incor- range rect generally constitutes not, range likely rect would v. plain Story, error. See United States in a case (6th properly-calculat- least where Cir.2007); see 503 F.3d also ed Guidelines was well within the Batista, Fed.Appx. United States v. Remand, Cir.2011). statutory range. correct (6th However, short, would be a useless exercise. support no McCloud cites cases that his plain position that a district court commits plain sup- error standard of review by imposing falling error a sentence within resentencing our that ports conclusion applicable statutory range despite cit- required in In a recent not this case. ing wrong statutory range. Unlike the FSA, governed decision Guidelines, designed guide which are resentencing we remanded for after deter- appropriate the district court toward an mining that failed to court based on the defendant’s criminal sentence properly advise the defendant of the cor- history and the factual circumstances of post-FSA statutory range the time rect offense, statutory range the instant plea. Hogg, his v. See United States only delineates outer bounds of the (6th Cir.2013). Hogg F.3d 730 is dis- imposing discretion in district court’s however, tinguishable, because the defen- penalty. McCloud therefore fails draw dant raised his claim before the district persuasive analogy wrongly between court, his claim and we therefore reviewed calculated Guidelines incor- stringent under the harmless error less rect statutory position and his finds however, indicated, that “a standard. We support in the case circuit. law this comparative defendant surrenders review, error and in- benefit harmless presents An incorrect Guidelines satisfy demanding must the more a distinct more stead procedural serious er- standard, timely if error he fails statutory range ror an incorrect be- object cause of to a claimed Rule violation.” Id. process district courts must at a claim reviewed use to arrive decision. must be Alleyne, at 2162. applicable.” was not raised 133 S.Ct. because it if on to explain The Court went did meet burden below. McCloud find a “judge court’s er- were to fact that increased that the district establishing such a rights, ror affected his substantial fairness, finding seriously affected the would violate the Sixth Amend- the error ment, reputation judicial ultimately if the integrity even defendant public Vonn, proceedings. falling See United States received a sentence within the 62-63, 122 Here, original sentencing range.” 535 U.S. Id. (2002). however, expressly L.Ed.2d 90 if the five-year stated that even manda- support cannot derive McCloud also tory minimum was the court applied, recent decision Supreme from the Court’s 3553(a) weighed would have fac- — U.S.-, Alleyne v. United tors a similar manner and ulti- L.Ed.2d 314 mate sentence would be the same. Re- Alleyne, in the calculation the error statement, gardless of this Lara-Ruiz clearly the sentence. affected was, noted, as earlier sentenced for a Alleyne question, For the had count did crime which he not commit accord- seven-year very been sentenced result, ing jury. As a the court sentencing range used a that was not applicable. id. not See Court held was applicable to the crime conviction. of As in short holds Alleyne nothing 2163. Thomas, majori- writing Justice for the required when an incorrect about relief insisted, “aggra- ty, such increase statutory range appears calculation of punishment” “[ejlevating vate[s] make no difference. the low-end of a Eighth recognize We Circuit heightens liberty loss of associated recently for that it was error a held By with the crime.” Id. ele- impose district a sentence court to based vating the low-end of seven-year mandatory on a minimum when punish- expected “the defendant’s fact triggering that minimum—that ment of has increased a result gun while com- defendant brandished range prosecution narrowed is found mitting by never the offense—was empowered, by invoking Lara-Ruiz, jury. require impose (8th Cir.2013). Eighth The higher punishment might than he follows, relying part in Circuit reasoned as (internal omitted). quotations wish.” Id. analysis in on the Sixth Amendment Al- Accordingly, rights Lara-Ruiz’s were leyne: substantially affected the court’s sen- substantially af- rights Lara-Ruiz’s were tence. fected was for a because he sentenced 721 F.3d at 558. from that statutory crime different guilty. analysis found him This does not in jury First, for two Alleyne pointed Court in out “be- McCloud’s case reasons. Alleyne brandishing aggravates cause of the discussion to the effect that the fact legally brandishing of allowable is an element rather prescribed sentences, for purposes it an element of a factor was constitutes separate, analysis; it aggravated offense must Court’s Sixth Amendment did Alleyne’s mean had jury, regardless be found what not conviction Instead, have re- reversed. might sentence the defendant be resentencing ceived for “consistent if a different had been remanded jury’s Alleyne, verdict.” responsibility with the See reduction is “entitled to permits possibili- 2164. This great S.Ct. at on deference review.” dis- Id. The Alleyne likely ty—unlikely highly but trict court enhanced McCloud’s Guidelines might Lara-Ruiz—that the same sentence justice obstruction under properly be entered. the Sixth Where U.S.S.G. 3C1.1 because McCloud failed Amendment error had no effect on the to appear law- evaded sentence, as indicated the facts Lara- for over years. enforcement three Ruiz because the district court’s alter- district court also noted that a reduction ruling, appear, native would under 3E1.1 was incompatible with spect, Eighth that the have Circuit should McCloud’s conduct because McCloud had Indeed, circuit, affirmed. in our a clear clearly accepted responsibility in decid- enough statement of what ing away to run and avoid wrong court would have done if it There clear is no error in the district analysis its Sixth Amendment permits court’s conclusions and argu- See, error finding. e.g., harmless United ment is without merit. Katzopoulos, States v. 437 F.3d also did not com (6th Cir.2006) cases). (collecting mit when it error told incorrectly Second, even if the Eighth Circuit was McCloud that super term of in finding plain correct error because he vised release faced was two Be the fundamental nature of Sixth Amend- cause failed to raise this claim protections, distinguishes ment that also below, only this court reviews it for plain Lara-Ruiz and Alleyne from this case. affecting error McCloud’s substantial There no Sixth Amendment here Blackwell, rights. See F.3d at This is all. not a Sixth Amendment hearing At the plea December case but case involving a incorrectly the district court told McCloud change of punishment for a a two-year period that he super faced of particular set of facts. It law was the However, vised release. the district not changed, jury whether a to find a had im court’s isolated misstatement had facts, All certain fact. the relevant both pact on rights. McCloud’s substantial and after before the FSA were applied, There indication that is no this statement if properly determined. Thus Larctr- even plea induced McCloud to enter into a correctly decided, Ruiz was there was no agreement, record indicates respect error McCloud’s case with court had properly district advised erroneously determined he four-year McCloud that faced a maxi sentencing range. mum supervised shortly term of release arguments McCloud’s other are before its not misstatement. McCloud has also without merit. The court district did met of showing his burden that there is procedural not commit by denying that, reasonable this probability but for a reduction acceptance McCloud re error, not have plea he would entered a sponsibility under U.S.S.G. 3E1.1. re Williams, agreement. United See States v. viewing district court’s application (6th Cir.1990). 1526, 899 F.2d sentencing guidelines, court re arguments to contrary McCloud’s are legal views the court’s conclusions meritless. de and its findings novo factual clear Gensehow, court’s error. See United States v. sentence was sub- (6th 803, Cir.2011). stantively argu- The district reasonable. McCloud’s deny court’s decision to an its acceptance-of- ment the district court abused 11, violation charging nal Procedure a 140-month sen- by imposing discretion 841(a)(1) (b)(l)(B)(iii) §§ applicable tence, the low end U.S.C. I, count, plea meritless. range, is McCloud 18 Count rea- presumption to McCloud’s Oc- charged has not overcome conduct related 21, within-Guidelines of 19.4 sonableness tober 2008 distribution/sale States, 552 v. United under Gall to an grams of crack cocaine undercover 586, 169 L.Ed.2d 445 agent. Agreement The Plea called for dis- of the other two missal counts, subsequent which involved sales of judgment is af- court’s agent. crack cocaine to undercover At firmed. plea the time McCloud he entered KETHLEDGE, Judge, Circuit statutory mandatory minimum faced a sen- concurring. months, years/60 tence of 5 years/480 maximum sentence opinion with the under- join

I the court’s months. preclude not a later standing that does that a district court’s deciding panel prom- facilitate his Released on bail to defendant’s of a miscalculation cooperation govern- ised with the post-plea But procedural error. fled, ment, a fugi- Defendant and remained object did not miscalcula- McCloud tive arrest than three until his more here, that he must show which means tion February, By that later in time merely court’s mistake not

that the Fair Congress had enacted the error, plain error. To but procedural by Act benefitted McCloud error, must McCloud demonstrate year mandatory eliminating the 5 mini- ” “ showing’ specific ‘a make mum, reducing “ actually ‘affected the out- court’s mistake years, thereby 50% to 20 tence reduc- proceedings.’” the district come of ing statutory sentencing range Keller, v. 665 F.3d to 0-20 Cir.2011) (6th (quoting United States On McCloud was sen- June 734-35, Olano, 507 U.S. imprisonment, tenced to 140 months (1993)). L.Ed.2d 508 For the advisory bottom of the Sentenc- in the explained opinion, court’s reasons months, ing of 140-175 showing. has made that release, years supervised of a fine $1500 BORMAN, calculating and a assessment. In Judge, D. District $100 PAUL Part, Dissenting Concurring sentencing judge in Part. applied year statutory 5-40 erroneous Defendant McCloud’s sentenc- Because range, applicable statutory rather than the significant prejudicial infused ing was with years. of low- integ- fairness error that affected the and er did sentencing this case rity proceeding, of that should be advisory change the 140-175 months Sen- resentencing. Accordingly, for remanded range. tencing Guidelines I As to the other respectfully dissent. Court, I concur

issues before the alia, appeals now his McCloud inter majority opinion. tence, case arguing should be resentencing remanded for because the

On December Defendant Steven applicable district court did not a pleaded guilty to one count of McCloud statutory sentencing range calcu- indictment, lower pursuant three-count to a Plea Agreement lating imposing Rule and his sentence. under Federal of Crimi- setting Judge’s forth the Sentencing

I. Options, the PSR stated: pleaded On December Statutory Provisions: The term of im- to I guilty Count of indictment prisonment mandatory is a minimum of Judge that crack was informed years and a of years, mandatory offense a min- required cocaine 841(a)(1) pursuant §§ to U.S.C. years imprisonment, imum sentence of five (b)(l)(B)(iii). up of years, with maximum sentence fines, million in of years to least four $2 Guideline Provisions: Based on an of- release, supervised assessment. $100 fense level 28 and a criminal history McCloud was informed that the final VI, category guideline imprison- range applicable Guidelines to his crime ment is 140 to 175 months. af- would be determined his ¶¶ Thus, PSR at the PSR’s (PSR) Report ter a Presentence had been statement of Statutory Provisions applica- officer, by a prepared probation submitted ble to McCloud’s was errone- parties objections, for and then sub- ous, because the FSA had created a lower mitted to the court district which had statutory imprisonment range—no manda- to him discretion outside the MO- tory and a maximum of 20 to range. 175 Guidelines McCloud failed years, pursuant to appear the scheduled 841(b)(1)(C). fugitive for years remained three until sentenced McCloud at February, he was apprehended when the bottom of his Guidelines by United States Marshals and incarcerat- imprisonment, months ed. parties then any objec- invited to raise McCloud was sentenced on June tions to the previously sentence not dis- 2012. Between time of McCloud’s cussed: there were none. The Assistant guilty plea and his 2012 Attorney then II dismissed Counts Congress had the Fair enacted and III In signing Indictment. (“FSA”), applied Act (J Judgment and Commitment Order & and reduced his C), and confidential supplemental its State- 0- imprisonment range from 5-40 (SOR) day, ment of Reasons later that The district court denied carried forward PSR’s objection PSR, McCloud’s sole error, by affirming that he had requested point adjust- three downward provision containing the 5-40 ment under the sentencing range, specifically, that he acceptance responsibility. had applied minimum sen- imposed point court also a two upward timely tence. The Defendant filed this adjustment obstruction appeal. direct

justice. The PSR established Sentenc- jurisdiction This Court has to review 26, ing Guidelines base offense level of appeal Defendant’s of his sentence under noting specifically that: “The is defendant agree 18 parties that grams accountable for 82 crack cocaine object to Judge’s Defendant’s failure to drug which is the total of three transac- application of the incorrect tions between October and November tencing range limits 2D1.1, this Court’s review to 2008. Pursuant to U.S.S.G. of- one of error. States v. involving grams plain fenses 28 112 United Von- between to ner, (6th Cir.2008) (en grams of F.3d cocaine base establish a base 516 386 (PSR ¶28.) banc). offense level of 26.”

608

II. 21, 2012, August after the 2010 enact- FSA, penal- lenient ment of the more plain committed error The district court statutory range applied: ties of the FSA sentencing pursuant to in McCloud years incarceration.1 0-20 range, thereby resulting wrong argues that the district court unreasonable sentence McCloud procedurally in a in rights failing to procedurally affected substantial erred that McCloud’s statutory sentencing range by integrity appropriate affected fairness statutory range ar- of 5- utilizing pre-FSA sentencing proceeding. McCloud’s years, rather the correct appeal on asserts: gument although He that years. asserts submits that sentenc- McCloud first judge him to 140 sentenced months voided, as the ing must be incarceration, the bottom of the erroneously year utilized a 5 to Sentencing of 140-175 determining ap- in months, so with un- he did the erroneous in this propriate sentence case. derstanding applicable statutory that 7.) (Appellant’s Br. at years, was 5-40 i.e. that subject plain claim is Because this he impose year mandatory must five “(1) review, must er- McCloud show up he and that could sentence (2) (3) clear, or ror was obvious maximum. forty substantial rights affected defendant’s judge’s The district erroneous under- (4) fairness, integrity, that affected the established, initially, by standing was erro- judicial reputation of the public proceed- provided information (internal neous Vonner, ings.” 516 F.3d omitted). him multiple pages of the PSR. The and quotation citations marks “ erroneously PSR on its cover stated sheet ‘[0]nly in will exceptional circumstances’ said, subject penalty error—only, we find such we have “Mandatory years impris- Minimum 5-40 ‘where the error is so that the trial countenancing ... onment.” The PSR further stated Part judge derelict [was] ” D, Sentencing Options, “Custody, it.’ Id. (quoting United States v. Gard- Statuto- (6th Cir.2006)) iner, ry imprisonment Provisions: term of (alterations in original). this case the minimum of 5 and a years.” Finally, error was so maximum of the PSR’s officer, well judge probation as the to the Recommendation stated, United De- Attorney erroneously, Assistant States that the Statu- attorney, tory fendant’s were regarding custody “derelict Provision was 5-40 countenancing it.” that, parties agree because also was misled place took Attorney’s on June United Assistant 2(a), Dorsey grams respectively). §

1. As the Court noted 124 Stat. -, change -U.S. 2372. The had the effect of low- (2012): L.Ed.2d ering crack-to-powder the 100-to-l ratio drag 18-to-l. trig- The Act increased the amounts at 2329. gering mandatory The Fair Act crack mínimums August Dorsey, trafficking took effect on grams offenses from to 28 grams respect 5-year day was handed down on June grams grams and from to 280 of McCloud’s the FSA ret- (while spect 10-year roactively August to offenders after minimum sentenced 3, 5,000 leaving powder grams at 500

609 Memorandum, that Sentencing advisory, correctly calculated, stated in must be possible its “The maximum the mandatory statutory Conclusion: then sentencing (40) forty term prison for this crime is correctly must be determined and (R. 41, years.” Government applied. This Court noted in United 6.) Memorandum (6th v. McElroy, FedAppx. 362 497 .2010): Cir hearing, At the neither the officer, A.U.S.A., appellate courts courts

probation nor the nor the are minimum by bound by sentences set Judge defense counsel corrected when statute, and consideration of the he endorsed the erroneous sub- record, stating on the that “a stantive and range, procedural viola- reasonableness 841(a)(1), 21 tion of ... U.S.Code Section such is not appropriate. sentences 841(b)(1)(B)(ii)-(B)(iii)” less than [not 5 FedAppx. (citing 362 at 499 United States years] and not 40 more than (6th Higgins, 381, v. 557 F.3d Cir. (R. 53, Sent. Hr’g this Tr. 2009)). Higgins McElroy were cited . 12-13, 116-17.) PgID# at approval States v. Logan, imposing After the district 477, 3155861, FedAppx. 2013 WL signed Judgment (6th 24, 2013) *2 Cir. (recognizing June C) (J which Commitment Order & stated and appellate courts courts Page adjudicated guilty that he was by are bound minimum sentences set 841(a)(1) 841(b)(l)(B)(iii), §§ 21 U.S.C. statute). years]. signed also [5—40 J Tragas, United States v. 727 F.3d supplemental & C’s Statement of Reasons (6th 610, 23, Aug. WL 4483514 Cir. (“SOR”), C, a sealed attachment the J & 2013) this Court remanded for resentenc- page: which stated on the cover “The ing because improperly the district court adopts presentence investigation calculated the Defendant’s sentence us- (R. 45, report change,” without Sealed ing an incorrect version of the Sentencing ¶ 1, IA, Statement Reasons Guidelines: 87), and: PgID# Finding “Court on Man- Particularly where the error results in a datory Minimum ... Mandatory Sentence nearly 100 months ¶ (Id. IIB.) imposed.” higher than it would otherwise have Critically, the district court “showed no been, we finding have no trouble ” of its statutory awareness constraints.... elements of error are satisfied Love, 889, United States v. FedAppx. here. (6th Cir.2008). 620, Tragas, 727 F.3d at 2013 WL prece- Court and Sixth Circuit case, at *9. In judge’s this district dent establish that a must statutory sentencing error resulted in a correctly advisory determine the Guide- higher than it “months would range at a sentencing. lines Gall v. Unit- been,” otherwise have and also resulted ed U.S. S.Ct. statutory sentencing range minimum 60 (2007); 169 L.Ed.2d 445 higher months it would otherwise Anderson, (6th Cir.2008) 526 F.3d Court, have been. Accordingly, (“ begin court should all sen- ‘[A] Tragas, finding should “have trouble tencing proceedings by correctly calculat- that the elements of error are satis- ”) ing range.’ fied here.” Gall, (quoting 586). follows, It Since logically, precedent requires that if a Sixth Guide- Circuit lines merely remanding resentencing when the dis- utilizing an Federal Rule of Criminal Procedure erroneous

trict court sentences 11(b)(1), Guidelines, follow, guilty applicable plea Rule advisory pri- should that: proceeding, requires ori, must also be remand there statutory sentencing an erroneous when court must inform the defendant [T]he calculating a sentence.2 is range applied of, and determine the defendant understands, following: the consistently af- Court has (H) any possible penalty.... apply statutes en- that courts must firmed (I) any mandatory penalty. minimum Statutory sentencing by Congress. acted Guidelines; information, the the Sentenc- The PSR must include this ranges trump authority “has no to over- ing well. Commission we construed it.” the statute as have

ride 35(a) F.R.Crim. P. “Within states: 284, 116 516 U.S. Neal may the days sentencing, after court cor- 133 L.Ed.2d rect a sentence that resulted from arith- office, Indeed, taking the oath each metical, technical or other clear error.” In uphold the Judge swears to both Federal addition, Title legislatively enacted laws the United Constitution and States. 3553(a)(3) states that deter- Statutory sentencing ranges are the laws particular the to be im- mining sentence Here, the States. of the United - posed, the district “shall consider the the follow/uphold did not law of (3) ... the kinds of sentences available.” United States. necessarily statutory This includes the ranges. minimum and maximum Indeed applicable to Federal crimi- Procedures every report by presentence begins listing the providing Defendant require nal cases statutory of the range offense con- and applicable with viction, proceeding before to the Guide- each maximum for offense lines calculations. arraignment the initial charged, acknowledge must This Court that: where defendant has observed ‘While writing apprised he was of the crimi- our review of the district court’s determi- 3553(a) charges ranges, through nation that factors justify nal and and, process, requiring that plea length particular then sentence im- deferential, applicable statutory sentencing range posed highly inquiry is the. our into by procedures be at the used the district court appellate dealing 2. The absence of cases usual case arises because between the time of application plea Congress of an incorrect sentenc- and the ing surprising. This is because is severity applicable statutory duced the of the application proper statutory sentencing range, very unusual event. tencing range generally a is "slam dunk.” Thus, statutory range the correct while is statute, The correct is set forth in the single clearly page, on a understand- set forth indictment/information, forth which set ing applying Guidelines is papers set forth in the then Determining "rocket science.” signed acknowledged by the defendant calculation, range requires recal- arraignment, agreed then record at culation, arguments probation before the offi- parties signed plea agreement, by in the cer, interpretations arguments then plea transcript containing a set forth in the by judge. plus page Because the 500 Judge, voir dire set defendant easy is not an Guidelines Manual again probation by the forth officer in quick study, read or there is abundance parties object, PSR to can resentencing appellate cases remanded for finally judge at the set forth the district in the This un- due to incorrect calculations. J & C/SOR.

611 reaching performanee any a conclusion is more objective such fell below stan- Bolds, States v. searching.” 511 reasonableness, dard of poor per- and his (6th Cir.2007). F.3d 579 n. prejudiced Defendant, formance because case, instant one need not search far to probability reasonable exists that but for judge conclude that the district violated 18 poor performance, the outcome of the 3553(a)(3) when he endorsed and proceedings well might have been differ- applied statutory sentencing the erroneous ent. See v. Strickland Washington, years. of 5-40 These serious errors L.Ed.2d impacted significantly McCloud’s sentenc- Anderson, (1984); Williams ing: (6th Cir.2006).3 provided judge 1. The PSR judge’s 5.The Statement of parties applied statutory erroneous year sentencing 5-40 Reasons to his Judgment and did so in attached three separate places. Order, Commitment confirmed that he had mandatory minimum sentence

First, Page on the PSR states that McCloud, in sentencing applied. when none Appellant subject penalty “Mandatory years impris- Minimum 5-40 McCloud, In sentencing the district onment.” judge used year the erroneous five manda- Second, 26 of Page states in PSR tory minimum starting sentence as the Custody, Sentencing Options “Part D ... point calculating and built Statutory Provisions: The of impris- term upon non-existent 60 month minimum minimum mandatory onment is a of 5 imposing his 140 month sentence. This years, pursu- and a maximum of 40 obvious, clear, error was and as discussed 841(a)l (b)(l)(B)(iii).” §§ ant to 21 below, so significant to warrant resen- Third, the PSR’s Recom- tencing. sentencing applica- judge’s mendation district judge states that year mandatory tion the 5 the statutory provision regarding custody significant baseline created a risk of caus- is 5-40 ing the judge upon to build that non-exis- 2. The Assistant Attor- in imposing tent month floor his 140 ney’s stated, memorandum month This sentence. affected McCloud’s erroneously, that McCloud’s rights, clearly substantial undermined year contained a integrity fairness and of his pos- sentence: “The maximum proceeding. prison sible Forty term this crime is (40) years.” Thus, although judge calcu- lated the correct at the months, hearing statutory provision range, stated that the and then sen- containing the erroneous 5-40 tenced at 140 month bottom tencing range applied. range, that is the end of Court’s analysis “perfect whether storm” of

4. Defense counsel was ineffective prejudicial committed errors all failing argue the correct parties sentencing proceeding, at the days or within thereafter quires resentencing. under Fed.R.Crim.P. 35. His remand for ings representing impact is Different counsel Defendant under 28 U.S.C. Although appeal. performance ineffective assistance of trial counsel's is to this relevant proceed- appeal. defense claims counsel are raised had Congress are incontrovertible: points legal

These defendant, such as that a (1) determined applicable bound to McCloud, very severe sen- mandatory; should receive range is (2) written; hand, made Congress it as other On the tence. advisory, range is year Guidelines in the 0-20 determination no such calculate it only to required judge is sig- the judge the with provides range, which it in and consider correctly, from discretion nificant vary from (3) is free judge baseline, ap- and because zero month sentence, above that merely adviso- range is plicable Guidelines also just, and is below, he thinks or ry. than nec- greater not to sentence required judge district sen- fact that The set purposes with essary comply correctly a calcu- within tenced McCloud 3553(a)(2). forth 18 U.S.C. Sentencing Guidelines advisory lated question but case, is no there In this majority’s con- support the range does not deprived of was McCloud that Defendant rights significant that McCloud’s clusion a sentence to receive opportunity imposition violated. Nor is were not The imprisonment. years five less than attendant sentence and its a Guidelines him- erroneously restricted district this of reasonableness” at “presumption universe self, considering a presumption A level conclusive. appellate This substan- years.4 to 40 years of five a establishing overcome facts can be Granting disadvantaged McCloud. tially in the rights of McCloud’s serious violation likely not have would that McCloud here. In as occurred sentencing process, less, the five ceived a sentence case, apply Sixth while our task is to minimum, a rather than year focus must still be our precedent, Circuit sentenc- judge’s started zero District Court. occurred on what months, and carried at 60 ing calculations reaf- decision Supreme A recent Court maximum. to a 480 up calculations his that a requirement is no firms that there the sentenc- statutory range informs That advisory Sen- clear, sentencing judge follow enacting that in ing judge, loud and sentence,” violated Article only the maximum U.S. Lindsey Washington, 301 In s.10, ex (1937), Constitution as an Supreme of the Federal S.Ct. 81 L.Ed. 1182 post facto law: sub- impact of similar Court discussed at disadvantage defendant sen- stantial disadvantage plainly to the substantial It is convicted of tencing. petitioners were opportu- deprived all petitioners to be Washington state courts grand larceny in give nity which would to receive a sentence "prescribed penalty for April, 1935. The then custody from and control them freedom imprisonment 'for grand larceny not was fifteen-year prior expiration of the years.’ No minimum term more than fifteen term. case, S.Ct. 797. prescribed.” 401-402, Id. at was In this at 57 S.Ct. 797. Id. June, 1935, petitioners’ commission disadvantaged by after substantially McCloud was offense, sentencing, Wash- year before the inapplicable but judge's use of the calculation; change mandating ington it enacted a sentence in McCloud's sentencing judge impose receiving the maximum sen- a sentence prevented McCloud from opportunity at give Id. to re- provided tence law—15 which would him Thus, peti- years, pre-sentence, but of less than five 57 S.Ct. 797. ceive a sentence a less than 15 to his ultimate probably received more relevant tioners could have June, tence, beginning prevented 1935. Id. at not so after zero,” "ground held calculations facts, creating 60 month base- thereby an erroneous subsequent state stat- under these before line. “mandatory ute made what was Guidelines, ly or even no matter what tencing presume forth, sentencing judge Guidelines sentence is reasonable: set within must sen- tence an offender to at least the mini- noted, may courts As have we prison mum set in statutory term forth that a within-Guidelines presume mandatory minimum. reasonable; they “in may sentence impose a cases non-Guide appropriate added). (emphasis 132 S.Ct. disagreement on a lines based judge’s calcula- Pepper Commission’s views.” tions in started at a 60 month -, -, [v. United baseline, which already 44% of 1229, 1247, 179 L.Ed.2d 196 imposed, month sentence rather (2011)]. the correct zero baseline. And his sen- — States, U.S.-, Peugh v. United months, tencing calculations at 480 ended (2013). 2072, 2087, 186 L.Ed.2d 84 double the correct 240 month maximum Thus, a non-Guidelines downward vari- sig- sentence. This erroneous was ance, departure a downward Guidelines nificant in the calculation and Court, by Supreme is sanctioned the risk, a high created serious indeed a prob- infra, applied many in discussed cases ability, judge imposing higher the a in the District of Ohio. Southern sentence based these erroneous num- bers.

In calculating appropriate an judge apply the district must Title 18 Appellant appeal McCloud’s Brief on 3553(a), Imposition § a U.S.C. of Sentence: significance discusses the this error: (a) in imposing Factors to be considered McCloud received sentence of 140 a sentence— n However, months. the court was under impose The court shall a sentence suffi- impression ]4 the this sentence was cient, greater necessary, but not to year] statutory [40 the maximum sen- comply purposes set forth in the tence, 6.7 only above the [5 (2) paragraph subsection. in year] mandatory minimum term. But fact, imposed the sentence 3553(a). over % This informs the maximum, year] statutory [20 the judge of discretion mandatory was no minimum to there advisory Sentencing are Guidelines consider. many but one considerations set 8.) Br. at (Appellant’s 3553(a) forth in that a judge in imposing must consult sentence. judge sentenced McCloud consulted, they they While must be need to 140 months incarceration—80 months statutes, be followed. how- statutory mandatory above the erroneous ever, followed, Supreme must be as the months, minimum of 60 calculates in pointed Dorsey: Court out statutory about 29% of the erroneous max- Act, hand, imum of Drug like other federal 480 months. On the other statutes, interacts with the the 140 month sentence is 58% of the maximum, statutory in important way. Guidelines an Like 240 month statutes, trumps other and double the 29% of the erroneous 480 Thus, ordinarily month maximum that the Guidelines. matter Thus, provide, what utilized. while the 140 month sen- imposed tence was a low-to-moderate cannot sentence offender sen- sen- beyond tence the maximum contained in tence under the erroneous 5-40 setting range—less the federal statute forth the than 30% of that 480 month maximum, Similarly, of conviction. ordinari- the 140 month crime sentencing judge would increase under very severe significantly tence is 60% for the crime. year range—almost McCloud’s sentence correct Alleyne: Supreme maximum. Court stated month destroy ground” any facts “on These the floor of impossible It is to dissociate reasonableness presumption of penalty from the af- require imposed fixed to crime. Alleyne v. United remand to resentence which overturned factfinding penalty for a crime.” Id. ble mandatory numerical 536 U.S. minimum sentence applying datory minimum sentences trict recent leyne, correct 133 S.Ct. Court That under court’s error pointed 133 S.Ct. decision judge, this court must statutory range, statutory parameters. 2151, 186 L.Ed.2d 314 no-longer-applicable the Sixth Amendment.” Harris out increases the Hams v. United for a crime is States, had held that Alleyne failing under focus on supported In this — particular The defendant, increase the that: “Man- the correct mandatory mandatory permissi- case, Supreme “judicial L.Ed.2d the dis- (2013), -, Al- tions erroneously nal) (internal 133 S.Ct. than he range heightens prosecution is minimum In this case the district result of scribed Elevating Moreover, ciated with the crime: expected punishment has defendant. omitted). facts to floor might impose “ups 2160, advised it is increasing quotation ^[*] aggravate narrowed low-end empowered, wish.... 2161 the loss impossible ^[*] three times in the ante” for a higher punishment (emphasis marks and cita- of a [A] increased ^[*] liberty legally pre- punishment. require defendant’s mandatory had been invoking in criminal dispute origi- asso- as a year mandatory five PSR of years, five increased minimum sentence year minimum and maximum. The a 40 That the for the crime. five penalty Attorney’s Assistant less than year mandatory minimum was tencing invoking memorandum the no- not eliminate the Guidelines sentence does longer-applicable year statutory maxi- reality penalty that it increased mum, law, only not misstated but also year five man- by establishing a the crime minimum, specific violated FSA directive to him existed. This datory when none Attorney Eric significant serious risk that General Holder.5 error created requires applica- had issued concluded that law Attorney General Eric Holder 15, July 2011 to all Federal Prosecu- order on tion of Act’s new tors: sentencing provisions sentencings to all 3, 2010, Statutory Application Man- August regardless SUBJECT: of occur on or after Sentencing datory Laws Minimum place. when the conduct took offense Crack Cocaine Offenses Amended Sentencing Act Fair goal of the Fair Act was to rectify policy. I a discredited believe that agree I that have held that with those courts Congress policy restoring intended that its only Congress intended the Act not "re- implement- be fairness in cocaine cocaine store fairness federal immediately sentencings place ed take possi- policy” expeditiously but to do so as signed the bill into law. after was That ble and to all defendants sentenced or today. you what I direct undertake result, I have after the enactment date. As a offense, Appeal drug The Government’s Brief on now the of Apprendi violation accepts applicability 466, v. New Jersey, Dorsey decision in to this case: L.Ed.2d The Lara- Ruiz opening premise argu- sentencing judge of McCloud’s then Pointing

ment is uncontroversial. to erroneous seven statutory mandatory U.S.-], Dorsey v. United States [— calculated a (2012), S.Ct. 250] L.Ed.2d [183 life, sentence of seven and sen- argues he that the Fair Act tenced defendant to 300 imprison- months defendants, applies “to all ment. occurred, gardless of when their conduct Applying plain error under review Fed. August who were sentenced on or after R.Civ.P. finding present the plain the date of the enact- FSA’s error relief factors set forth in United “holding Dorsey ment” and that the Olano, 507 U.S. clearly applies in case.” (1993), 123 L.Ed.2d 508 11.) But, Br. at (Appellee’s while Gov- Eighth Circuit remanded for resentencing acknowledges applicabili- ernment now seriously because the error affected the ty of the FSA its reduction of fairness, integrity, public reputation range to McCloud’s judicial proceeding. Eighth Cir- does impact not eliminate the of its cuit Court concluded that the defendant’s legally erroneous memorandum at rights substantially were affected and the June prejudicially influenced the outcome say is no It answer to that McCloud was proceedings of the district court “because prejudiced because the he received a he sentenced for a crime It Guidelines sentence. is no answer to different” from the offense of conviction. say prejudice that there was because exactly That happened what at the Defendant could have received the sentencing: McCloud’s he was sentenced judge, pro- same sentence had the district wrong statutory provision, under the officer, bation the Assistant United States 841(b)(1)(B), which carries a Attorney, yes, attorney in- range, instead statutory voked the range. correct Such a 841(b)(1)(c), which carries the correct guesstimate preju- does not overcome the of 0-20 range Finally, impact dicial of what the occurred at dis- citing after relevant language the Al- court proceeding. trict leyne, Eighth the Circuit concluded that A recent post-Alleyne decision of the integrity judicial “the fairness and of the of Appeals United States Court for the proceedings in this case were affected Circuit, Eighth v. Larar- United States expansion the of Lara-Ruiz’s loss of liber- (8th Ruiz, Cir.2013), 721 F.3d 554 further ty resulting the erroneous increase in remanding this supports case for resen- the mandatory minimum sentence....” tencing. Defendant Lara-Ruiz was con- F.3d at So too in the instant case. during victed use of firearm or in the Supreme Alleyne: As Court noted to a drug trafficking relation crime. That Indeed, if a were to find a fact subjected conviction the to defendant statutory increased the maximum year mandatory five minimum sentence. sentence, However, finding such a would violate pro- based on further evidence Amendment, the at Sixth even if the defen- judge ap- duced the district the dant fall- plied year mandatory ultimately seven minimum received a sentence brandishing during ing original sentencing range sentence for within firearm the ( n ie., than years nor more without that not less five range applicable fact). State, Hobbs 44 forty Hogg Cf. v. subse- aggravating years imprisonment. (1875) (reversing conviction guilty plea Tex. moved to withdraw his quently for a was indicted the defendant where asserting a of Fed.R.Crim.P. violation years to punishable crime ll(b)(l)(H)-(I), based on years the trial to 3 because sentenced appli- judge’s “misinforming him as jury instructed the improperly statutory range for the of- penalty cable 2 to defendant between pled guilty.” fense to which he particular aggravating years if found (citation altera- record and fact)[.] omitted). would tions The correct have eliminated sentencing process sentence, focusing In lowered sentencing proceeding, apply- sentence, “advisory in a lower resulted ing recent of 151-188 months Guidelines gainsaid that precedent, it cannot be rather than the 188-to-234 month in comparing evidenced huge disparity Hogg plea agreement.” set in his Id. forth applied under the severity of the sentence provided if he had been contended scenario, statutory sentence ver- erroneous FSA, he impact of the the correct statutory sentencing sce- the correct sus Government’s accepted would not have nario, supports conclusion offer a 188 which was month for resentencing. remanded case should be top post-FSA FSA, involving recent decision In a only about four short (6th Hogg, 723 F.3d 730 post maximum of 240 FSA Cir.2013), remanded to the district we months. proceedings because the court for further Hogg, we ruled defendant could refused to the correct plea his incor- guilty “withdraw due though even statutory penalty range, he penalty rect statement of to the bottom of sentenced the defendant range made to him in plea agreement plea hearing, and at the where this mis- 11(c)(1)(c)plea agreement. Rule statement affected defendant’s substantial Yes, a harmless error standard rights by changing the calculus under Hogg’s appeal—a on lesser standard than weighed accepted gov- which he and the demanding plain more error standard plea 723 at 739 ernment’s offer.” F.3d this case: McCloud has the applicable to (initial removed). capitalization So too rights burden to show that his substantial here, seriously district court where the affected, that the seriously were and error right proper violated McCloud’s fairness, integrity public affected the tencing by failing the correct stat- reputation judicial proceedings. United utory calculating in Vonn, 55, 62-63, U.S. States Hogg, in the er- McCloud’s sentence. As (2002); L.Ed.2d 90 S.Ct. United significant ror in “a in the change resulted Olano, 734-35, States v. U.S. ” sentencing calculus.... at 749. 123 L.Ed.2d How- ever, Hogg’s substantial the discussion here Application of the Vonner factors rights, reasoning applied in Hogg and the signifi- clearly plain establishes error that ring to remand true this case. McCloud, and also clear- cantly prejudiced ly integrity of the affected fairness Hogg’s plea agreement Rule stated statutory sentencing range sentencing proceeding. was public application reputation sentencing of the erroneous 1. The statutory sentencing range signifi- proceeding. cantly prejudiced Defendant III.

McCloud. error obvious and clear. 2. The was That sentencing judge imposed Indeed, a “per- the record evidences Guidelines and that on appeal storm” of error commit- fect serious presumed Guidelines sentence is reason- by participants ted all the able, justify ignoring does not parade justice process: federal criminal sentencing process of errors in this who to set probation officer failed Indeed, significantly prejudiced McCloud. forth the correct sentenc- the fact that McCloud’s month sen- ing range in the PSR was at bottom the tence sentencing; the Assistant United Judge when the Attorney whose by guided high- and cabined the erroneous erroneously memorandum informed year range, probabil- er 5-40 increases judge that this crime carried ity judge would have varied sentence; by year if downward below he had in- plea counsel who was applied year range. the correct 0-20 issue, by raising effective never this FY Commission statistics for finally, most significantly, non-government 2012 establish that below applied by who were imposed sentences year sentencing the erroneous 5-40 judges in a percentage substantial of fed- repeated that error then sentencings crack eral cocaine Judgment in the and Commitment Ohio, specifically Southern District of Reasons Order/Statement 22.2%. on, checking and signing the box guessing A as to game what that he had the five might have done at minimum in remand, or would do on not the central McCloud. opinion. focus of this of this focus and the meet facts law this case sentencing proce- Court must be In requirements. error dure/process, case was thor- — Davila, U.S.-, States v. oughly significant prejudicial infected with (2013), 186 L.Ed.2d 139 stage, every at every party, error pointed out that Federal Rule of significantly impacted Defendant 52(b) Criminal Procedure states: McCloud. A that affects substantial may justice, rights though requirement be considered even The interests brought court’s a fair sentencing proceeding, [trial] of and the 52(b) controls, attention.... When Rule likelihood that lesser sentence would the defendant must show that the error imposed proper been under the statu- have rights. affects substantial tory parameters requires a remand for A resentencing in this case. remand (internal quotation 133 S.Ct. at 2147 marks exercise, in- would not be useless but omitted) (alteration origi- and citation law nal). recognition stead that the exceptional is that This case parties, particu- must be all followed requires finding prejudicial plain of both Judge, precedent supports lar the and that significantly prejudiced error that the De- fendant, integrity right proper and fair affected Defendant’s pa- of the instead

sentencing proceeding, that infected this sentenc- rade errors dissent. ing. respectfully I CORPORATION; Autocam AUTOCAM LLC; Kennedy; Medical, Paul John Kennedy IV; Marga- Kennedy; John Kennedy, Kennedy; Plain- ret Thomas tiffs-Appellants, SEBELIUS, her official ca- Kathleen pacity Secretary Health Hu- as Services; Depart-

man United States Services; ment Health and Human Perez, in his official ca- E. Thomas Labor; Secretary pacity as United Labor; Department of Jacob States Lew, capacity official in his Secre- tary Treasury; Treasury,

Department Defen- dants-Appellees. 12-2673.

No. Appeals, Sixth Circuit. 11, 2013. Argued: June Sept. and Filed: Decided

Case Details

Case Name: United States v. Steven McCloud

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 17, 2013

Citation: 730 F.3d 600

Docket Number: 12-3810

Court Abbreviation: 6th Cir.