                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                              December 8, 2014
                                     PUBLISH                 Elisabeth A. Shumaker
                                                                 Clerk of Court
                     UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.
                                                       No. 13-1363
 ELDER GEOVANY SABILLON-
 UMANA, a/k/a Elder Umana, a/k/a
 Pablo Casillas,

          Defendant-Appellant.


                    Appeal from the United States District Court
                            for the District of Colorado
                        (D.C. No. 1:12-CR-00113-WYD-3)


Robert S. Berger of Robert S. Berger, P.C., Denver, Colorado, for Defendant-
Appellant.

J. Bishop Grewell, Assistant United States Attorney (John F. Walsh, United States
Attorney, and Stephanie N. Gaddy, Special Assistant United States Attorney, on
the brief), Denver, Colorado, for Plaintiff-Appellee.


Before GORSUCH, SENTELLE, * and MURPHY, Circuit Judges.


GORSUCH, Circuit Judge.



      *
        The Honorable David B. Sentelle, Senior Circuit Judge, United States
Court of Appeals for the District of Columbia Circuit, sitting by designation.
      Sentencing someone to prison has to be one of the district judge’s toughest

tasks. So much is at stake for the defendant, the victim, and the community. So

much responsibility rests on the judge’s shoulders, along with the high

expectation that the judge will wisely weigh things that cannot be easily weighed.

How much punishment is enough to protect the public? To deter future

wrongdoing? To reflect the gravity of the offense? And how much punishment

suffices to accomplish all these things without verging on cold revenge or

needless retribution? There’s rarely a single right answer to hard questions like

these. So our system depends, as perhaps it must, on the discretion of thoughtful

judges.

      One tool district judges have to help them in their unenviable task is the

advisory sentencing guidelines. The guidelines seek to supply some sense of

what other courts across the country are doing in similar cases and what

sentencing experts think may be appropriate. See U.S. Sentencing Guidelines

Manual (U.S.S.G.) ch. 1, pt. A, subpt. 1.3 (2012); Rita v. United States, 551 U.S.

338, 349 (2007). Of course, each defendant must be assessed on his or her own

terms: courts are not machine presses and sentences are not widgets to be

churned out on some criminal justice conveyor belt. But a properly calculated

guidelines sentence provides useful data, a “starting point” or “initial

benchmark,” even as it remains the judge’s duty to tailor every sentence to the


                                          2
case and defendant at hand. Gall v. United States, 552 U.S. 38, 49 (2007). In this

case we confront two errors in the district court’s benchmark guidelines analysis.

      The first arose this way. Early in the sentencing hearing the district judge

noted that Mr. Sabillon-Umana was but a bit player in a larger drug operation. In

that light, the judge stated that he thought a guidelines base offense level of 32

sounded about right and he asked the probation officer to offer some justification

for that number. The probation officer promptly obliged. He told the court that

finding Mr. Sabillon-Umana responsible for 1.5 kilograms of cocaine and 1.5

kilograms of heroin sold by the larger conspiracy would yield the court’s desired

base offense level. By the hearing’s end, the district court adopted those findings

as its own and imposed a sentence based on them.

      This upended the normal course of events. When sentencing a defendant

involved in a conspiracy, the district court is supposed to start by making factual

findings about how much of the conspiracy’s criminal activity the defendant

agreed to and could’ve reasonably foreseen. See U.S.S.G. § 1B1.3, cmt. n.2;

United States v. Green, 175 F.3d 822, 837 (10th Cir. 1999). Then, with a full

appreciation of those facts, the court must calculate the defendant’s base offense

level and the advisory guidelines sentence that flows from that calculation. See

United States v. Figueroa-Labrada, 720 F.3d 1258, 1267 (10th Cir. 2013).

Finally, with the guidelines’ advice in hand, the court may decide whether a

variance is warranted to ensure a just sentence. See Gall, 552 U.S. at 49-50. Put

                                          3
simply, the court is supposed to start with the facts, then consult empirics about

similarly situated defendants and the expertise of the Sentencing Commission,

and only then make an individualized judgment about the case at hand informed

by that information. The district court in this case failed to follow this order of

operations, starting with a conclusion about the appropriate guidelines sentence

before backing into factual findings to support its conclusion. This was error.

      We admit the proper order of operations we’ve outlined rests in part on a

questionable foundation. It assumes that a district judge may either decrease or

increase a defendant’s sentence (within the statutorily authorized range) based on

facts the judge finds without the aid of a jury or the defendant’s consent. It is far

from certain whether the Constitution allows at least the second half of that

equation. See, e.g., Jones v. United States, 135 S. Ct. 8 (2014) (Scalia, J.,

dissenting from denial of certiorari). But in our case Mr. Sabillon-Umana has not

challenged the district court’s power to find facts at sentencing. And so long as

district courts enjoy that power, their factual findings must come before — not

after — their sentencing decisions.

      Neither is this order of operations procedure for procedure’s sake. Putting

sentencing judgments first and fact-finding second risks mistakes about both. Our

case illustrates the potential. The district court sought to justify a base offense

level of 32. To back into that number, the probation officer suggested that the

court find Mr. Sabillon-Umana responsible for selling 1.5 kilograms each of

                                           4
cocaine and heroin, for a total of 3 kilograms. The court could support these

numbers, the probation officer suggested, with three ancillary findings: that Mr.

Sabillon-Umana made $500 for each ounce of heroin or cocaine he sold, that he

sold the two drugs in a 50/50 ratio, and that the $27,080 he wired to family

members while apparently unemployed came almost exclusively from his drug

profits. The court adopted this analysis wholesale. But the math doesn’t jibe.

Dividing $27,080 in total profits by $500 in profits per ounce yields 54.16

ounces, or 1.5 kilograms, of heroin and cocaine combined — not 1.5 kilograms of

each drug as the court found. And if 1.5 kilograms is the total amount of drugs

properly attributable to Mr. Sabillon-Umana, he is eligible for a base offense level

of 30, not 32, and a correspondingly lower advisory guidelines sentence.

      We do not question the distinguished district judge’s intuition that Mr.

Sabillon-Umana was a minor player in the drug conspiracy, or that his sentence

should reflect as much. But in our legal order properly found facts drive

sentencing decisions, not the other way around. Before settling on a guidelines

offense level or some other sentencing conclusion, a district court must take

account of the facts — whether conceded by the defendant, found by a jury, or

(perhaps) found by the court. When that process is reversed, mistakes and

miscalculations can creep in, and we risk sending defendants like Mr. Sabillon-

Umana to prison for more time than the law fairly permits.




                                         5
      All the same the government argues we should affirm. Mr. Sabillon-Umana

never caught the district court’s math mistake so, the government tells us, he’s

waived any complaint about it. This is a nonsequitur. Mr. Sabillon-Umana has

long and clearly argued that the district court committed reversible legal error by

starting with its proposed sentence and working backwards to fit the facts to that

conclusion. He’s steadfastly preserved that complaint and, as we have explained,

it is well taken. The only thing that has somehow eluded everyone until this

appeal is the fact that the district court’s math doesn’t work. And this court is

surely entitled to take judicial notice of that factual mistake — now

acknowledged by both parties — to illustrate the sort of consequences that can

flow from failing to abide the order of operations the law requires at sentencing.

See United States v. Burch, 169 F.3d 666, 671 (10th Cir. 1999); Fed. R. Evid.

201(b).

      Retreating, the government suggests there’s still another reason why we

shouldn’t reverse. There’s no need to reverse, the government says, because

there’s another way we might still get to the same base offense level (32) the

district court did. To manage this feat, the government urges this court (yes, the

court of appeals) to find as a factual matter that all of the drugs Mr. Sabillon-

Umana sold were heroin, rather than a mix of heroin and cocaine as the probation

officer suggested and the district court found. With this new factual finding in

hand, the government promises, a base offense level of 32 would surely follow.

                                          6
The government’s proposed procedure, however, not only calls on this court to

become the fact-finder — a strange enough invitation — it also asks us to commit

the same legal error the district court did: to back into a finding about the nature

of Mr. Sabillon-Umana’s drug trafficking activities only to support a judgment

about an appropriate sentence. That we refuse to do.

      But that doesn’t end our encounter with this case. A second and separate

error remains for us to address. At the sentencing hearing, the prosecutor

proposed a downward departure from the advisory guidelines range in recognition

of Mr. Sabillon-Umana’s assistance to the government. See U.S.S.G. § 5K1.1.

But when Mr. Sabillon-Umana argued that the district court should grant an even

greater departure, the prosecutor shot back that the district court lacked the lawful

authority to grant such relief. The district court agreed, noting that “it’s really the

Government rather than the Court that evaluates the value of the substantial

assistance.” That is incorrect. Section 5K1.1 does not grant prosecutors the

power to control the length of a defendant’s sentence. Rather, it is emphatically

for the court, not the government, to determine the appropriate sentencing reward

for the defendant’s assistance. See id.; United States v. Krejcarek, 453 F.3d 1290,

1300-01 (10th Cir. 2006).

      On appeal the government concedes the error it invited but strains again to

avoid a remand. In the first place, the government says a remand isn’t required

because the district court caught and corrected the problem before issuing its

                                           7
sentence. But this much we just don’t see. The transcript of the sentencing

hearing shows the government misstating the law. The transcript then shows the

court signaling its agreement with the government’s mistaken view of the law.

After that, however, the transcript never shows the government or the district

court disavowing the error.

      Even if the mistake was never caught the government says we still

shouldn’t bother fixing it because Mr. Sabillon-Umana didn’t raise any objection

about it in the district court. And here at least the government isn’t entirely

incorrect: Mr. Sabillon-Umana indeed failed to disabuse the district court of the

misunderstanding the government introduced. But even if the government isn’t

willing to correct the error it invited, this court retains the power to do so under

its authority to address plain but unpreserved errors. See Fed. R. Crim. P. 52(b).

To satisfy the plain error standard, a defendant must show that (1) the district

court erred; (2) the error was plain; (3) the error affects the defendant’s

substantial rights; and (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings. See United States v. Olano, 507 U.S.

725, 732 (1993). All those conditions are satisfied here. Indeed, the first two

elements don’t require much discussion: we face an obvious mistake, a

sentencing error invited by the government that contravenes the express language

of § 5K1.1 and this court’s precedent in Krejcarek. The latter two elements are

met as well, but explaining why requires a few more words.

                                           8
         Both before and after United States v. Booker, 543 U.S. 220 (2005), this

court has recognized that an obvious misapplication of the sentencing guidelines

will usually satisfy the third and fourth elements of the plain error test. See, e.g.,

United States v. Rosales-Miranda, 755 F.3d 1253, 1259-60, 1262-63 (10th Cir.

2014); Figueroa-Labrada, 720 F.3d at 1268-69; United States v. Meacham, 567

F.3d 1184, 1191 (10th Cir. 2009); United States v. Johnson, 414 F.3d 1260, 1263-

65 (10th Cir. 2005); United States v. Smith, 919 F.2d 123, 124 (10th Cir. 1990).

Other circuits have reached similar conclusions or even adopted an explicit

presumption that a clear guidelines error will satisfy the latter two steps of plain

error review. See, e.g., United States v. Vargem, 747 F.3d 724, 728-29 (9th Cir.

2014); United States v. Wernick, 691 F.3d 108, 117-18 (2d Cir. 2012); United

States v. Slade, 631 F.3d 185, 191-92 (4th Cir. 2011); United States v. Story, 503

F.3d 436, 440-41 (6th Cir. 2007); United States v. Baretz, 411 F.3d 867, 877 &

n.7 (7th Cir. 2005); United States v. Knight, 266 F.3d 203, 206-07 & n.7 (3d Cir.

2001).

         This presumption is sound. If the guidelines form the essential starting

point in any federal sentencing analysis (and they do), it follows that an obvious

error in applying them “runs the risk of affecting the ultimate sentence regardless

of whether the court ultimately imposes a sentence within or outside [the] range”

the guidelines suggest. Rosales-Miranda, 755 F.3d at 1259. As the Third Circuit

has well said: “[I]t is beyond cavil that the Guidelines are intended to, and do,

                                           9
affect sentencing. Indeed, that is their very raison d’etre.” Knight, 266 F.3d at

207 (footnote omitted). In the language of plain error’s third prong, the whole

point of the guidelines is to affect the defendant’s “substantial rights” by guiding

the district court’s analysis of how much of his liberty he must forfeit to the

government. When the court’s starting point is skewed a “reasonable probability”

exists that its final sentence is skewed too. United States v. Uscanga-Mora, 562

F.3d 1289, 1295 (10th Cir. 2009) (quoting United States v. Cook, 550 F.3d 1292,

1298 (10th Cir. 2008)). And turning to plain error’s fourth prong, what

reasonable citizen wouldn’t bear a rightly diminished view of the judicial process

and its integrity if courts refused to correct obvious errors of their own devise that

threaten to require individuals to linger longer in federal prison than the law

demands? Especially when the cost of correction is so small? A remand for

resentencing, after all, doesn’t require that a defendant be released or retried but

simply allows the district court to exercise its authority to impose a legally

permissible sentence. A presumption that the third and fourth prongs are met by

obvious guidelines errors is, thus, sensible and consistent with the terms of those

tests, our case law, and the law of other circuits. It has other rule of law virtues

too. It provides more certain guidance to the parties than a renewed balancing

test in each and every case and it allows more expedition in error correction:

knowing that obvious guidelines errors are presumptively subject to correction




                                          10
should enable the parties to agree to their prompt resolution in the district court

without the necessity of a lengthy appeal like the one before us. 1

      Of course, presumptions can be overcome and the presumption that obvious

guidelines errors meet the latter elements of the plain error test can be too. In

some cases, the record will reveal a “fortuitous comment” from the sentencing

judge making clear that its error in applying the guidelines didn’t adversely affect

the defendant’s ultimate sentence. Knight, 266 F.3d at 207. For example, a

district judge might proceed to analyze a case under alternative theories — one

permissible, the other obviously mistaken — and arrive at the same sentencing



      1
         We have sometimes said the fourth step of plain error review requires the
defendant to show a “strong possibility of receiving a significantly lower
sentence” on remand. Meacham, 567 F.3d at 1190 (quoting United States v.
Andrews, 447 F.3d 806, 813 (10th Cir. 2006)). But we first employed that precise
language in United States v. Andrews to describe a showing that is sufficient —
not necessary — to satisfy the fourth step. Andrews, 447 F.3d at 813; see also
United States v. Dowlin, 408 F.3d 647, 671 (10th Cir. 2005). This court’s later
decision in United States v. Meacham cited Andrews for the proposition that an
appellant “must” make this showing — without acknowledging or explaining the
departure from Andrews’s holding. Meacham, 567 F.3d at 1190. In cases of
conflicting circuit precedent our court “follow[s] earlier, settled precedent over a
subsequent deviation therefrom.” Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th
Cir. 1996). And that’s what we have here: an unexplained and seemingly
accidental deviation from settled precedent that a strong possibility of a
significantly lower sentence is sufficient, not necessary, to meet plain error’s
fourth test. To satisfy that test, the controlling question remains the one posed by
the Supreme Court in Olano and by our court in Andrews: whether the error
affects the fairness, integrity, or public reputation of judicial proceedings. And
for the reasons we’ve outlined, an obvious judicial error about the requirements of
the advisory guidelines is enough to presume an affirmative answer to that
question.

                                          11
conclusion either way. In cases along these and similar lines, this court and

others have sometimes declined to remand for resentencing in the face of an

obvious guidelines error, reasoning that a new sentencing proceeding would not

help the defendant or enhance the integrity of judicial proceedings. See, e.g.,

United States v. Westover, 435 F.3d 1273, 1276-79 (10th Cir. 2006); United

States v. Brown, 316 F.3d 1151, 1161-63 (10th Cir. 2003).

      This case, however, falls within the heartland of the presumption, not any

exception. At the government’s urging, the district court obviously erred in

construing its authority under the guidelines’ instructions in § 5K1.1. And

whether a court clearly miscalculates the advisory guidelines range or clearly

mistakes its entitlement to depart from that range under § 5K1.1, a defendant’s

substantial rights and the integrity of the judicial process are surely at risk: in

either event the benchmark for the entire sentencing process rests on an obviously

mistaken premise. We lack as well any fortuitous comment from the district court

that might persuade us that its error in construing the guidelines had no effect on

its sentencing decision. To the contrary, the district court initially expressed

interest in imposing a sentence as low as 72 months. It finally settled on 96

months only after the government said that was the lowest guidelines-based

sentence the court could accept consistent with its (mistaken) view of § 5K1.1.

These facts leave us with ample reason to wonder whether, but for its

misunderstanding about the nature of its authority to issue a lower sentence


                                          12
consistent with § 5K1.1, the court might have issued a sentence as much as two

years shorter than the one it imposed. Of course, it is impossible to know for

certain what would have happened in a but-for world absent the error the

government invited. But we can think of few things that affect an individual’s

substantial rights or the public’s perception of the fairness and integrity of the

judicial process more than a reasonable probability an individual will linger

longer in prison than the law demands only because of an obvious judicial

mistake.

      The case is remanded for resentencing.




                                          13
