                                     PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
              _______________

                   No. 18-1153
                 _______________

         UNITED STATES OF AMERICA

                         v.

           PEDRO RAMON PAYANO,
                also known as
         JOEMANUEL NUNEZ-SUAREZ,

                            Appellant
                 _______________

   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
          (E.D. Pa. No. 2-17-cr-0238-001)
    District Judge: Honorable R. Barclay Surrick
                 _______________

             Argued: January 23, 2019

Before: JORDAN, KRAUSE, and ROTH, Circuit Judges

           (Opinion Filed: July 10, 2019)
Abigail E. Horn     [ARGUED]
Brett G. Sweitzer
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

      Counsel for Appellant Pedro Ramon Payano

Bernadette A. McKeon        [ARGUED]
Jennifer B. Jordan
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

      Counsel for Appellee United States of America

                     _______________

                OPINION OF THE COURT
                    _______________

KRAUSE, Circuit Judge.

       Appellant Pedro Ramon Payano appeals his sentence on
the ground that the District Court’s mistaken belief as to the
applicable statutory maximum constitutes plain error. In his
view, this error warrants resentencing by way of analogy to




                              2
Molina-Martinez v. United States where the Supreme Court
held that an incorrectly calculated United States Sentencing
Guidelines range presumptively satisfies the prejudice prong
of plain-error review because of its “centrality” to a district
court’s sentence. 136 S. Ct. 1338, 1346 (2016). We agree that
there was error but decline to extend the presumption of
prejudice recognized in Molina-Martinez to this context
because a mistaken understanding about the applicable
statutory range, without more, has far less bearing on the actual
sentence imposed than a Guidelines-calculation error.
However, because we conclude on this record that the error did
affect Payano’s substantial rights and without correction would
seriously affect the fairness, integrity, or public reputation of
judicial proceedings, we will vacate his sentence and remand
for resentencing.

I.     Background

       Payano is a citizen of the Dominican Republic who first
came to the United States legally with his parents at age twelve.
In 1998, at age eighteen, he pleaded guilty to first degree
possession of a controlled substance in New York state court,
and in 2001, after completing his sentence of three years to life
imprisonment, he was removed based on that drug possession
conviction. Although Payano illegally reentered the United
States in 2012, his presence was not discovered until 2017
when a Pennsylvania state trooper pulled over his vehicle.
After an extended traffic stop, the trooper obtained consent to
search the vehicle and found a kilogram of cocaine hidden in
an interior panel.

       A grand jury in the Eastern District of Pennsylvania
indicted Payano for illegal reentry, in violation of 8 U.S.C.




                               3
§ 1326, and possession with intent to distribute 500 grams or
more of cocaine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)(II). On Payano’s pretrial motion to suppress, the
District Court agreed with him that the drugs found in the
vehicle were fruit of an unconstitutional search because the
trooper lacked reasonable suspicion to prolong the stop. The
Government then dismissed the drug charge, and Payano
pleaded guilty to illegal reentry. Because Payano’s 1998
conviction was for drug possession and not drug distribution,
it qualified under federal law as a felony, but not an aggravated
felony, for purposes of the illegal reentry offense.
Accordingly, Payano’s plea was to a violation of 8 U.S.C.
§ 1326(b)(1), which applies to illegal reentry following a
“felony (other than an aggravated felony)” and carries a
maximum sentence of ten years, and not 8 U.S.C. § 1326(b)(2),
which applies to illegal reentry following an “aggravated
felony” and carries a maximum sentence of twenty years.

        In anticipation of sentencing, the United States
Probation Office prepared a Presentence Report (PSR). That
report correctly calculated the applicable Guidelines range as
24-30 months’ imprisonment and correctly listed the statutory
maximum term of imprisonment as ten years. However,
instead of citing § 1326(b)(1) as the offense of conviction, it
cited § 1326(b)(2). Although the PSR made no reference to
illegal reentry following an aggravated felony nor made
mention of § 1326(b)(2)’s twenty-year maximum, the citation
error was compounded when the Government argued in its
sentencing memorandum seeking an upward variance that
Payano had been “convicted of an aggravated felony prior to
his deportation,” JA 69 n.2, and when it requested at the
sentencing hearing that the District Court “correct” the PSR to
reflect that Payano had pleaded guilty to “aggravated reentry,”




                               4
carrying a twenty-year statutory maximum sentence. JA 92-
93. The District Court ordered that the PSR be amended to
reflect that change—a “correction” to which Payano’s counsel
agreed. JA 92. Neither the District Court nor the parties
mentioned it again during the proceedings, but at the
conclusion of the hearing, the District Court granted the
Government’s motion for an upward variance. It then imposed
a four-year sentence, 18 months above the Guidelines range,
yet well below the applicable ten-year statutory maximum and,
a fortiori, well below the twenty-year maximum that the
District Court believed applicable.

II.    Discussion1

        Payano argues, for the first time on appeal, that he is
entitled to resentencing because the District Court plainly erred
by accepting that the applicable statutory maximum was
twenty, as opposed to ten, years’ imprisonment.2 As the
Government conceded at oral argument that our review is for
plain error under Federal Rule of Criminal Procedure 52(b),3
       1
        The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742(e).
       2
         Because we will vacate Payano’s sentence, we need
not address his two additional arguments on appeal: (1) that the
District Court procedurally erred by not adequately explaining
its upward variance, and (2) that the imposition of a four-year
sentence was substantively unreasonable.
       3
         In its briefing before argument, the Government took
the position that Payano’s argument on this point was waived
rather than forfeited, and thus was not entitled to plain error




                               5
we must decide whether (1) an error occurred, (2) the error is
“plain,” and (3) it “affect[s] substantial rights.” United States
v. Olano, 507 U.S. 725, 732 (1993) (alteration in original); Fed.
R. Crim. P. 52(b). If those three conditions are met, a court of
appeals should exercise its discretion to correct the error if it
would “seriously affect[] the fairness, integrity or public
reputation of judicial proceedings.” Olano, 507 U.S. at 732
(quoting United States v. Young, 470 U.S. 1, 15 (1985)).
Payano has the burden of demonstrating that the four Olano
factors are met. Id. at 734-35.

       Here, the first two are clearly satisfied. There is no
dispute that the District Court erred in finding that Payano
pleaded guilty to illegal reentry following an “aggravated
felony,” in violation of 8 U.S.C. § 1326(a) and (b)(2), and that




review. Where a party “invite[s] the District Court[’s]” error
and the Court proceeds in reliance on that agreement, we have
navigated the murky waters of forfeiture versus waiver in view
of the context and extent of the affirmative representation.
Robinson v. First State Comm. Action Agency, 920 F.3d 182,
187-89 (3d Cir. 2019) (holding appellee waived rather than
forfeited its argument where it “[n]ot only . . . fail[ed] to object,
[but also] specifically assented to” the error); cf. Gov’t of the
V.I. v. Rosa, 399 F.3d 283, 292-93 (3d Cir. 2005) (holding
“repeated acquiescence” to an erroneous jury instruction did
not rise to the level of a knowing and intentional waiver). We
need not undertake that analysis here, however, in view of the
Government’s concession at oral argument that plain error
review does apply.




                                 6
the error was “plain.”4 The question presented by this case
arises at Olano’s third prong: whether the District Court’s error
“affect[ed] [Payano’s] substantial rights.” 507 U.S. at 732.
Below, we address that issue, and because we conclude his
substantial rights were affected, we then consider whether,
under Olano’s fourth prong, the error, if uncorrected, would
seriously affected the fairness, integrity, or public reputation of
judicial proceedings.

       A.     Whether the Error Affected Payano’s Substantial
              Rights

        For an error to affect a defendant’s substantial rights, it
must have “prejudiced [him], either specifically or
presumptively,” i.e., “[i]t must have affected the outcome of
the district court proceedings.” Id. at 734, 739. Demonstrating
“a prejudicial effect on the outcome of a judicial proceeding”
ordinarily requires a “reasonable probability” that, but for the
claimed error, “the result of the proceeding would have been
different.” United States v. Dominguez Benitez, 542 U.S. 74,
81-82 (2004) (quoting United States v. Bagley, 473 U.S. 667,
682 (1985)). But “reasonable probability” in this context “is
not the same as, and should not be confused with, a

       4
           While Payano’s conviction under New York Penal
Code § 220.21 constitutes a state felony, “[m]ere possession is
not . . . a felony under the federal [Controlled Substance Act]
CSA,” Lopez v. Gonzales, 549 U.S. 47, 53 (2006) (citing 21
U.S.C. § 844(a)), and because the categorical approach
requires it to be a drug trafficking crime under the CSA to
qualify as an “aggravated felony,” 8 U.S.C. §§ 1101(a)(43);
1326(b)(2); 18 U.S.C. § 924(c)(2), Payano’s 1998 conviction
does not categorically constitute an “aggravated felony.”




                                7
requirement that a defendant prove by a preponderance of the
evidence that but for [the] error things would have been
different.” Id. at 83 n.9. Rather, as with the prejudice standard
articulated in Strickland v. Washington, 466 U.S. 668, 694
(1984), and the materiality standard under Brady v. Maryland,
373 U.S. 83, 87 (1963), see Giglio v. United States, 405 U.S.
150, 154 (1972), it means only that a defendant must “satisfy
the judgment of the reviewing court, informed by the entire
record, that the probability of a different result is ‘sufficient to
undermine confidence in the outcome’ of the proceeding,”
Dominguez Benitez, 542 U.S. at 83 (citing Strickland, 466 U.S.
at 694; Bagley, 473 U.S. at 682); accord United States v.
Corso, 549 F.3d 921, 929-30 (3d Cir. 2008) (same).5

      Here, then, Payano must show that but for the District
Court’s erroneous understanding of the applicable statutory
maximum, the likelihood of a sentence shorter than four years

       5
         It may be, as Justice Souter has observed, that the “use
of the term ‘probability’ raises an unjustifiable risk of
misleading courts into treating it as akin to the more
demanding standard, ‘more likely than not,’” and that
“‘significant possibility’ would do better at capturing the
degree to which the [error] would place the actual result in
question, sufficient to warrant overturning a conviction or
sentence.” Strickler v. Greene, 527 U.S. 263, 298 (1999)
(Souter, J., dissenting). For now, however, the Court and the
Courts of Appeals continue to use the term, clarifying that
“reasonable probability” does not mean more likely than not.
Id.; accord United States v. Vargem, 747 F.3d 724, 728 (9th
Cir. 2014); United States v. Groysman, 766 F.3d 147, 157 (2d
Cir. 2014); United States v. Carrasco, 540 F.3d 43, 53 (1st Cir.
2008).




                                 8
is “sufficient to undermine [our] confidence” in the sentencing
proceeding. Dominguez Benitez, 542 U.S. at 83. Payano
argues that he satisfies that standard, either because (1) the
District Court’s error is one that warrants a presumption of
prejudice, or, alternatively, (2) the sentencing record reveals a
“reasonable probability” that the error influenced the District
Court. We address these arguments in turn.

              1.     The statutory-range error here does not
                     give rise to a presumption of prejudice.

        In Molina-Martinez v. United States, 136 S. Ct. 1338
(2016), the Supreme Court held that miscalculation of the
applicable range under the United States Sentencing
Guidelines “itself can, and most often will, be sufficient to
show a reasonable probability of a different outcome absent the
error.” Id. at 1345. Payano asks this Court to extend that
rebuttable presumption of prejudice for Guidelines-range
errors to the statutory-range error here—specifically, to a
district court’s mistaken belief as to the applicable statutory
maximum. As the reasoning of Molina-Martinez highlights,
however, marked differences between the relative significance
in sentencing of the applicable Guidelines range and the
statutory range counsel against such an extension. The Court
there explained that a presumption of prejudice “must follow”
from an error related to the Guidelines range because that error
is “particularly serious” considering (a) “the centrality of the
Guidelines in the sentencing process,” and (b) the reality that
the Guidelines range has a “real and pervasive effect” upon the
ultimate sentence imposed. Id. at 1345-46; see also id. at 1341
(noting that most Courts of Appeals “have concluded that a
district court’s application of an incorrect Guidelines range can




                               9
itself serve as evidence of an effect on substantial rights”). But
neither consideration pertains to the statutory range.

        Unlike the Guidelines, which district courts are required
to use as the “starting point” for sentencing, to “remain
cognizant of . . . throughout the sentencing process,” and to
“explain the decision to deviate from,” statutory ranges merely
set the floor and the ceiling within which a district court must
sentence, thereby functioning not to “anchor” the district
court’s discretion, but rather to limit the extent to which a
district court may permissibly stray from the Guidelines range.
Molina-Martinez, 136 S. Ct. at 1345, 1349 (quoting Gall v.
United States, 552 U.S. 38, 49 (2007); Peugh v. United States,
569 U.S. 530, 537, 541 (2013)).6

        As a result, it is no surprise that a Guidelines range and
a statutory range do not have commensurate effects on the final
sentence imposed. Whereas “[i]n most cases district courts . .
. impose ‘either within-Guidelines sentences or sentences that
depart downward from the Guidelines on the Government’s
motion,’” id. at 1346 (quoting Peugh, 569 U.S. at 543) (citing
U.S.S.C., 2014 Annual Report and 2014 Sourcebook of
Federal Sentencing Statistics S–50 (19th ed.) (Table N)),
statutory ranges are generally too expansive to exert significant




       6
         Indeed, a Guidelines range—if calculated correctly—
will take account of the requirement that a Guidelines range
cannot be “greater than the statutorily authorized maximum
sentence.” U.S.S.G. § 5G1.1(c)(1); see United States v.
Rivera-Cruz, 904 F.3d 324, 327-28 (3d Cir. 2018).




                               10
influence over the ultimate sentence imposed.7 And because a
mistaken belief as to the applicable statutory range is far less
likely than a Guidelines-range error to affect a sentence,
Payano is hard-pressed to argue that a statutory-range error is
alone “sufficient to show a reasonable probability of a different
outcome.” Molina-Martinez, 136 S. Ct. at 1345.8
       7
         For example, statutory ranges often cover decades and
are identical across vast swaths of federal crimes. See, e.g., 18
U.S.C. § 1343 (wire fraud; 0-20 years); 18 U.S.C. § 2113(a)
(bank robbery; 0-20 years); 18 U.S.C. § 2339B(a)(1)
(providing material support to a foreign terrorist organization;
0-20 years). In addition, because defendants are often charged
with multiple offenses for the same course of conduct, any of
which district courts have discretion to impose either
concurrently or consecutively, see 18 U.S.C. § 3584(a); Setser
v. United States, 566 U.S. 231, 236 (2012), an aggregated
statutory range could easily exceed a natural life span.
       8
         To be clear, these differences are a product of the way
our modern sentencing system has evolved. Before the
Guidelines, we had a “system of indeterminate sentencing,”
whereby district judges’ discretion to determine the length of a
defendant’s period of incarceration was constrained only by
the applicable statutory range, which often spanned decades.
Mistretta v. United States, 488 U.S. 361, 363 (1989). The
“significant sentencing disparities among similarly situated
offenders” that resulted from indeterminate sentencing led to
the advent of the United States Sentencing Commission and its
promulgation of the Sentencing Guidelines. Peugh v. United
States, 569 U.S. 530, 535 (2013). Initially understood to bind
district courts to impose a sentence within the applicable
Guidelines range, the Guidelines were intended to achieve both
“uniformity” and “proportionality in sentencing through a




                               11
       Indeed, no Court of Appeals to date has accepted that
argument. While we are the first to consider the significance
of Molina-Martinez for an unpreserved error concerning the
statutory range, we find persuasive the decisions of those
courts that predated Molina-Martinez but addressed this issue
against the backdrop of their own Circuit’s presumption of
prejudice for Guidelines-range errors. See United States v.
Goodwin, 717 F.3d 511, 520-21 (7th Cir. 2013); United States
v. Story, 503 F.3d 436, 441 (6th Cir. 2007); see also United
States v. Knight, 266 F.3d 203, 207 (3d Cir. 2001). For
instance, the Sixth Circuit found no “persuasive analogy”
between a Guidelines-range and statutory- range error,
explaining that while the Guidelines “guide the district court
toward an appropriate sentence,” statutory ranges merely
“delineate[] the outer bounds of the district court’s discretion
in imposing a penalty.” United States v. McCloud, 730 F.3d
600, 603 (6th Cir. 2013). And because an incorrect statutory
range is not likely to “seriously affect the sentence a defendant
receive[s],” remanding for resentencing “would be a useless
exercise” absent some evidence of prejudice in the record. Id.



system that imposes appropriately different sentences for
criminal conduct of different severity.” Molina-Martinez, 136
S. Ct. at 1342 (quoting Rita v. United States, 551 U.S. 338, 349
(2007) (emphasis omitted)). While the Guidelines, of course,
are no longer mandatory, see United States v. Booker, 543 U.S.
220, 244 (2005), their “centrality” to both the sentencing
procedures that district courts employ and the ultimate
sentences they impose continue to facilitate the uniformity and
proportionality that statutory ranges alone were unable to
achieve, Molina-Martinez, 136 S. Ct. at 1345; see Peugh, 569
U.S. at 536-37.




                               12
       The Seventh Circuit likewise declined to extend a
presumption of prejudice where the district court’s sentence
gave rise to “competing inferences” as to “what the sentencing
judge might have done had she known that she was not bound
by the ten-year minimum.” United States v. Currie, 739 F.3d
960, 965 (7th Cir. 2014). Instead, it “order[ed] a limited
remand” to determine whether there was actual prejudice, i.e.,
whether the district court would have imposed the same
sentence absent the error.9 Id. at 967; cf. United States v.
Williams, 742 F.3d 304, 306-07 (7th Cir. 2014) (presuming
prejudice and declining to issue a limited remand, in favor of a
full remand, in the context of a Guidelines range error).10

       9
         The statutory-range errors in McCloud and Currie
differed from that present here in that they both involved a
mistaken belief as to the applicable statutory minimum. In
those cases, the district court had failed to retroactively apply
the Fair Sentencing Act (FSA), as required by the Supreme
Court in Dorsey v. United States, 567 U.S. 260, 280-81 (2012),
which in each case would have lowered the applicable statutory
minimum by five years. See McCloud, 730 F.3d at 601-02
(FSA lowered applicable statutory range from 5-40 years to 0-
20 years); Currie, 739 F.3d at 964 (FSA lowered mandatory
minimum from 10 years to 5 years). Notably, those courts
declined to recognize a presumption of prejudice even though
an error as to the existence or length of a mandatory minimum
sentence is arguably far more prejudicial than an error as to an
applicable statutory maximum that is not reached by the
sentence imposed.
       10
         Additionally, while the D.C. Circuit had not expressly
recognized a presumption of prejudice in the Guidelines
context prior to Molina-Martinez, its decision in United States




                               13
        Payano’s arguments in favor of extending the
presumption of prejudice also are unavailing. He first contends
that an erroneous statutory range is presumptively prejudicial
at least in the context of 8 U.S.C. § 1326, the illegal reentry
statute, because it contains a three-tiered sentencing
“framework” with different statutory maxima keyed to
criminal history and thus should be viewed, like the
Guidelines, as “aim[ing] to embody” the sentencing factors
articulated in 18 U.S.C. § 3553. Appellant’s Br. 25 (quoting
Molina-Martinez, 136 S. Ct. at 1342); see Tr. of Oral Arg.
1:48:00-1:49:30.11 But each tier of that framework still covers
a wide statutory range that, unlike the “set of elaborate, detailed
Guidelines” considered in Molina-Martinez, cannot be said to
narrowly tailor sentences to individual defendants. 136 S. Ct.
at 1342. Second, he argues that requiring evidence of prejudice
would be unfair because “sentencing courts are customarily
silent” when they impose a sentence within the statutory range,


v. Watson, 476 F.3d 1020 (D.C. Cir. 2007), also accords with
our analysis. There, the district court mistakenly believed that
the applicable statutory maximum was twenty as opposed to
ten years, and the appellate court found plain error not by
presuming prejudice but because statements in the record
revealed that the district court was operating “under the
misimpression [that] it was imposing a relatively lenient
sentence” which “infected” the proceedings. Id. at 1021, 1024.
       11
           8 U.S.C. § 1326’s three-tiered framework includes a
2-year statutory maximum for illegal reentry by a non-
recidivist, id. § 1326(a)(2), a 10-year statutory maximum for
illegal reentry after a felony conviction, id. § 1326(b)(1), and a
20-year statutory maximum for illegal reentry after an
aggravated felony conviction, id. § 1326(b)(2).




                                14
Appellant’s Br. 28, just as they are when a sentence falls within
the Guidelines range. But again, the Guidelines range imposes
a far more significant constraint because a sentencing court
must explain any deviation from them. Finally, Payano asserts
that an erroneous statutory maximum, like a Guidelines
miscalculation, gives rise to a procedural error because it
precludes a sentencing court from considering “the kinds of
sentences available,” as required under 18 U.S.C. § 3553(a)(3).
But that argument rests on a mistaken premise because not all
procedural errors are presumptively prejudicial. See, e.g.,
United States v. Stevens, 223 F.3d 239, 246 (3d Cir. 2000)
(declining to extend presumption of prejudice to violation of
Federal Rule of Criminal Procedure 32, which requires courts
to “verify that the defendant has read and discussed the PSR
with counsel”).

        In sum, unlike an erroneous Guidelines range, an
erroneous statutory range is not “itself . . . sufficient to show a
reasonable probability of a different outcome absent the error.”
Molina-Martinez, 136 S Ct. at 1345. And without a
presumption, a defendant must show actual prejudice to satisfy
the third prong of the Olano test. Thus, we turn to the next
question before us: whether, on this sentencing record, the
possibility of a lesser sentence absent the statutory-range error
is “‘sufficient to undermine [our] confidence in the outcome’
of [his] proceeding.” Dominguez Benitez, 542 U.S. at 83
(citation omitted).

              2.      Payano has established actual prejudice.

       In the absence of a presumption of prejudice, a
reviewing court’s determination as to whether a defendant has
established actual prejudice on plain-error review, i.e., a




                                15
“reasonable probability” of a lower sentence, must be
“informed by the entire record.” Id. at 83; see Molina-
Martinez, 136 S. Ct. at 1351 (Alito, J., concurring in part and
concurring in the judgment) (“[T]here is no good reason to
preclude defendants from showing prejudice via . . .
circumstantial evidence” such as the parties’ “sentencing
arguments.”). On this record—where the District Court
sentenced Payano significantly above the top of the applicable
Guidelines range, was repeatedly urged by the Government to
vary upwards on account of a supposed prior “drug trafficking
conviction,” and itself directed the PSR be amended to reflect
a twenty-year statutory maximum—we cannot be confident
that the four-year sentence the District Court imposed was not
affected by its mistaken belief that it was sentencing Payano
for “aggravated reentry.”

        Prominent in the record are the Government’s
arguments in support of its request for an upward variance from
the applicable Guidelines range. From the very first page of its
sentencing memorandum, the Government pressed the point
that Payano was “originally removed . . . following a drug
trafficking conviction in New York.” JA 67-68. It then
repeatedly reinforced that erroneous assertion, arguing, for
example, that a variance was warranted to “take[] into account
[Payano’s] unlawful return to the United States to engage in
serious drug trafficking activities”; that he was engaged in “the
very same behavior” that got him deported in the first place,
JA 71; that Payano came back to the United States “to engage
in the same drug business that caused his deportation,” JA 75;
and that the ten-year statutory maximum in the PSR was
“incorrect[] . . . [b]ecause [Payano] was convicted of an




                               16
aggravated felony prior to his deportation,” JA 69 n.2.12 The
Government also emphasized how “serious” the prior
conviction was, by noting both that “Payano was sentenced to
3 years to lifetime imprisonment with lifetime parole,” JA 70-
71, and that “the defendant’s criminal history and current
conduct demonstrate[d] a willingness to commit serious crimes
and defy court orders,” JA 71.

        The mistaken assertion that Payano’s original
conviction was for drug trafficking also permeated the
sentencing hearing, where the Government urged the District
Court at the outset to “correct” the PSR to confirm that Payano
had pleaded guilty to “aggravated reentry,” JA 92-93, and
argued that the upward variance was warranted because
Payano “came back to the United States to engage in the very
same conduct that he was found on April 3, 2017 to be engaged
in, trafficking in drugs,” JA 127. At the conclusion of the
hearing, the District Court granted that variance, explaining
that it was warranted in light of the fact that illegal reentry is a
“serious crime” made all the “more serious” given “the very
nature of this situation”—“[t]he reentry after deportation and
the drugs that were involved in this situation.” JA 129-30.

       The Government contends that because the District
Court only referenced the statutory maximum once at the
sentencing hearing—and even then “only to accept the parties’

       12
          Other examples abound. E.g., JA 73 (“Because it was
an aggravated felony, [Payano] was deported from the United
States in January 2001.”); JA 73 (arguing that Payano “knew
the consequences of his behavior because he had done it and
been caught before”); JA 75 (“[Payano] became an aggravated
felon and was deported.”).




                                17
representation that the PSR incorrectly stated that the statutory
maximum was 10 rather than 20 years”—the error with regard
to “[t]he statutory maximum penalty played no role in the
court’s analysis or reasoning.” Gov’t Br. 22-23. Rather, it
contends, as the District Court “repeatedly noted” at the
sentencing hearing, its decision to vary upwards and impose an
above-Guidelines “sentence was driven by the defendant’s
[uncharged] drug trafficking activity after he returned to the
United States.” Gov’t Br. 28.

        To be sure, there were permissible bases upon which
the District Court may have exercised its discretion to impose
an above-Guidelines sentence. See United States v. Berry, 553
F.3d 273, 279-80 (3d Cir. 2009) (holding sentencing courts are
entitled to rely on facts so long as they are “proven by a
preponderance of the evidence”). It was entitled to consider,
for example, the “conduct underlying [his] dismissed [drug
distribution] count,” United States v. Baird, 109 F.3d 856, 863
(3d Cir. 1997), which, but for the Government’s decision to
dismiss it after Payano’s successful suppression motion, could
have subjected Payano to a five-year mandatory minimum
sentence—a year longer than the sentence the District Court
imposed, see 21 U.S.C. § 841(b)(1)(B)(ii).13 So too would it
be permissible for the District Court to vary upwards based on
the fact that Payano’s uncharged drug trafficking conduct
mirrored the conduct underlying his prior conviction,
including, as stated in the PSR, that the police previously had

       13
          In making those factual findings, the District Court
relied on the testimony of Drug Enforcement Agency Special
Agent Lisa Amoroso and Philadelphia Police Officer Luis
Melendez regarding Payano’s post-arrest statements admitting
that the kilogram of cocaine found in the vehicle was his.




                               18
also seized more than a kilogram of cocaine, as well as a loaded
firearm, from a “trap in the driver’s side door of his vehicle,”
Gov’t Br. 6 (citing PSR ¶ 27)—a fact to which Payano did not
object. See United States v. Pollard, 986 F.2d 44, 46-47 (3d
Cir. 1993) (“[A] sentencing court possesses great discretion in
the conduct it may consider . . . even if the conduct was not
proven at trial, but came from a presentence report.”) (citations
omitted).

        These permissible considerations alone may have
accounted for the District Court’s upward variance and, to the
extent they did, the District Court on remand may well opt to
re-impose the same exact sentence. But against the backdrop
of the “entire record,” there is at least a “reasonable
probability” that the four-year sentence was based on the
District Court’s mistaken belief as to the applicable statutory
maximum. Dominguez Benitez, 542 U.S. at 83. And given the
pervasiveness of the Government’s sentencing arguments that
Payano had been convicted of “drug trafficking,” had pleaded
guilty to an “aggravated felony,” and was subject to a
“maximum sentence of 20 years’ imprisonment,” JA 69, 71,
73, 75, 78, 92-93, we cannot be confident on this record that
the District Court did not conflate the underlying drug
trafficking conduct common to both Payano’s prior and instant
convictions with the belief that his prior conviction had been
for drug trafficking, which triggered a potential sentence twice
as long and thus may have informed the extent of the upward
variance. Because “we cannot say with complete confidence
that the court would have imposed the same sentence
regardless of the [erroneous statutory maximum],” Currie, 739
F.3d at 966, we must conclude that the error “affect[ed]
[Payano’s] substantial rights,” Olano, 507 U.S. at 732; cf.
United States v. Watson, 476 F.3d 1020, 1024 (D.C. Cir. 2007)




                               19
(court had “no trouble seeing” the effect of the erroneous
statutory maximum upon substantial rights where district court
stated its sentence was “considerably less than the statutorily-
available sentencing maximum”).

       B.     Whether the District Court’s Error Would
              Seriously Affect the Fairness, Integrity, or Public
              Reputation of Judicial Proceedings

       Even though Olano’s first three conditions are met, this
Court will only exercise its discretion to correct a forfeited
error if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” 507 U.S. at 736 (alteration
omitted). Here, the Government has conceded that, should the
Court find Payano’s substantial rights affected, this standard
would be met and we should remand for resentencing. That is
an appropriate concession given that, upon a showing of
prejudice from a statutory-range error, a defendant is in a
procedural posture functionally equivalent to that of a
defendant with a Guidelines-range error, where prejudice is
presumed, and in the latter context, the Supreme Court has
observed: “[A] reasonable citizen [would] 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.” Rosales-Mireles v. United States, 138
S. Ct. 1897, 1908 (2018) (quoting United States v. Sabillon–
Umana, 772 F.3d 1328, 1333-34 (10th Cir. 2014) (Gorsuch,
J.)). The Court also explained that while “Rule 52(b) should
be exercised ‘sparingly’” for trial errors, id. at 1909 (quoting
Jones v. United States, 527 U.S. 373, 389 (1999)), correcting
sentencing errors “is far less burdensome than a retrial, or other




                               20
jury proceedings, and thus does not demand such a high degree
of caution.” Id.

       These considerations favor remand here, where we are
unable to discern on this record whether the District Court
granted the upward variance based on permissible
considerations or on the Government’s unfounded argument
that Payano’s previous offense was an aggravated felony—or
on both. Thus, we agree that Payano has also met his burden
of showing that the statutory-range error here, if not corrected,
would “seriously affect[] the fairness, integrity or public
reputation of judicial proceedings.” Olano, 507 U.S. at 732.

III.   Conclusion

      For the foregoing reasons, we will vacate the District
Court’s sentence and remand for resentencing.




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