                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                         September 7, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-4107
                                                  (D.C. No. 2:16-CR-00413-CW-1)
JOHN DAMION RAFAL,                                            (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, EBEL, and MORITZ, Circuit Judges.
                   _________________________________

      John Rafal robbed a bank. After being indicted, he pleaded guilty to one count

of bank robbery, see 18 U.S.C. § 2113(a), and one count of being a felon in

possession of a firearm, see 18 U.S.C. § 922(g)(1). The district court sentenced Rafal

to serve a total of 70 months in prison, the low end of the advisory guideline range of

70 to 87 months.

      In this appeal, Rafal challenges that sentence. He argues that the district court

plainly erred by calculating his guideline sentencing range without grouping his two

counts of convictions. See U.S. Sentencing Guidelines Manual (U.S.S.G.) §§ 3D1.1–


      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1.5 (U.S. Sentencing Comm’n 2016) (guiding the sentencing of defendants convicted

of multiple counts). We agree. So exercising jurisdiction under 28 U.S.C. § 1291, we

vacate Rafal’s sentence and remand for resentencing.

                                  BACKGROUND

      On July 25, 2016, Rafal robbed a bank in Salt Lake City, Utah. After Rafal

left, bank employees began yelling about the robbery. Minutes after the robbery, a

police officer encountered Rafal about a block from the bank and arrested him.

During the arrest, the officer discovered that Rafal was carrying a loaded firearm.

      On August 24, 2016, a federal grand jury indicted Rafal on two counts: bank

robbery, see 18 U.S.C. § 2113(a), and being a felon in possession of a firearm, see 18

U.S.C. § 922(g)(1). Rafal pleaded guilty to both counts. But Rafal had been serving a

sixty-month term of supervised release (part of his sentence for an earlier bank-

robbery conviction) at the time of the robbery. His latest bank robbery obviously

violated the terms of his supervised release.

      Before Rafal’s sentencing hearing, a probation officer prepared a presentence

investigation report (PSR). In calculating Rafal’s offense level for the bank-robbery

count, the probation officer applied a base offense level of 20. See U.S.S.G.

§ 2B3.1(a). Then she turned to specific-offense characteristics, adding two levels

because Rafal had taken the property of a financial institution, see U.S.S.G.

§ 2B3.1(b)(1), plus five more levels because “a firearm was brandished or possessed”

during the robbery, see U.S.S.G. § 2B3.1(b)(2)(C). This calculation yielded an

adjusted offense level of 27 for the bank-robbery count. For the felon-in-possession-

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of-a-firearm count, the officer used a base offense level of 20, see U.S.S.G.

§ 2K2.1(a)(4)(A), and added two levels because the firearm was stolen, see U.S.S.G.

§ 2K2.1(b)(4)(A), resulting in an adjusted offense level of 22.

      Then the probation officer took the greater of the adjusted offense levels—27

for the bank robbery—and applied a multiple-count adjustment. In doing so, she

assigned each offense to a separate “group.” From that, she allotted the bank-robbery

group 0.5 “units” and the felon-in-possession-of-a-firearm group 1 “unit,” for a total

of 1.5 units. The additional 1.5 units increased the adjusted offense level by one,

resulting in a combined adjusted offense level of 28. After subtracting three levels for

acceptance of responsibility, the officer arrived at a total offense level of 25, which,

combined with Rafal’s criminal history category of III, produced a guideline

sentencing range of 70 to 87 months’ imprisonment.

      At sentencing, Rafal objected to the five-level increase applied to the bank-

robbery count, arguing that the government hadn’t established that he possessed the

gun during the robbery. The district court allowed testimony to resolve the objection.

An investigating officer testified that video footage from the bank showed a bulge on

Rafal’s right hip that appeared to be a firearm. Another officer testified that he saw a

firearm on Rafal’s right hip as he approached Rafal soon after the bank robbery. The

district court found that “the evidence preponderates in favor of a conclusion that the

defendant did possess a firearm during the robbery.” R. vol. 2 at 7:17–19. So the

court denied Rafal’s objection to the five-level increase and accepted the PSR’s

sentencing calculations.

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      From there, the district court identified “two ways to proceed.” Id. at 16:19.

First, the district court noted that it could “sentence Mr. Rafal to 80 months in prison

and dismiss the supervised release violations.” Id. at 16:20–21. Second, it could

“sentence him to 70 months in prison, which would be the low end of the Guideline

for the two counts in the [bank-robbery] case, and sentence him to 30 months on the

supervised release, with 20 of those months to run concurrent with the sentence in the

bank robbery case.” Id. at 16:23–17:3. Both approaches would yield an 80-month

sentence. Ultimately, the district court concluded that it was “more appropriate for

the record to reflect that there was a sentence imposed for the supervised release

violation,” so it chose the second option. Id. at 17:4–6. For the two instant

convictions, the court sentenced Rafal to 70 months’ imprisonment. For the

supervised-release violation, the court sentenced Rafal to 30 months’

imprisonment—10 to be served consecutively, and 20 to be served concurrently.

Rafal appealed his sentence.

                                     DISCUSSION

      On appeal, Rafal argues that the district court plainly erred in calculating his

guideline sentencing range by treating Rafal’s conviction for bank robbery and his

conviction for being a felon in possession of a firearm as separate groups.

      Because Rafal didn’t contemporaneously object to the district court’s guideline

calculation, we review his claims for plain error. United States v. Archuleta, 865 F.3d

1280, 1290 (10th Cir. 2017). “We will find plain error only when there is (1) error,

(2) that is plain, which (3) affects substantial rights, and which (4) seriously affects

                                            4
the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting

United States v. Wireman, 849 F.3d 956, 962 (10th Cir. 2017)).

I. The District Court Erred in Not Grouping Rafal’s Two Counts of Conviction

      When a defendant is convicted of multiple counts, the sentencing guidelines

provide rules for grouping the offenses together “to limit the significance of the

formal charging decision and to prevent multiple punishment for substantially

identical offense conduct.” U.S.S.G. ch. 3, pt. D, introductory cmt.

      Counts must be grouped when they involve “substantially the same harm.” Id.

at § 3D1.2. One way that counts can involve substantially the same harm is “[w]hen

one of the counts embodies conduct that is treated as a specific offense characteristic

in, or other adjustment to, the guideline applicable to another of the counts.” Id. at

§ 3D1.2(c). The sentencing guidelines address the situation presented here in an

application note, stating that “use of a firearm in a bank robbery and unlawful

possession of that firearm are sufficiently related to warrant grouping of counts under

this subsection.” Id. at § 3D1.2 cmt. n.5; see also United States v. Gelzer, 50 F.3d

1133, 1144 (2d Cir. 1995) (“[T]he unlawful possession of a firearm is grouped with

armed robbery because the conduct embodied in possessing a firearm is substantially

identical to the specific offense characteristic of possessing that firearm during a

robbery.”).

      Section 3D1.1(a) provides a three-step procedure for calculating the offense

level for multiple counts. See U.S.S.G. § 3D1.1(a). First, the district court must group

the counts of conviction “into distinct Groups of Closely Related Counts.” Id. at

                                            5
§ 3D1.1(a)(1). Next, the district court must determine the offense level that applies to

each group. Id. at § 3D1.1(a)(2). Finally, the court must determine the combined

offense level. Id. at §§ 3D1.1(a)(3). To do so, the court must take the group with the

highest offense level and increase that level based on the sum of the “Units.” Id. at

§ 3D1.4. The court must count the number of units for each group based on that

group’s seriousness in relation to the seriousness of the group with the highest

offense level. Id. So when two counts are grouped together, the punishment for the

more serious count absorbs the punishment for the less serious count. But when the

counts aren’t grouped, the punishment for the less serious count is added to the

punishment for the more serious count.

      Here, Rafal pleaded guilty to one count of bank robbery, see 18 U.S.C.

§ 2113(a), and one count of being a felon in possession of a firearm, see 18 U.S.C.

§ 922(g)(1). Under U.S.S.G. § 2B3.1(b)(2)(C), the district court applied a five-level

enhancement to the bank-robbery count because Rafal possessed a firearm. The

felon-in-possession-of-a-firearm count arose from the same possession of the same

firearm. Even though the five-level enhancement already punished Rafal for

possessing the firearm as a specific offense characteristic of the bank-robbery count,

the district court separated the bank-robbery count and the felon-in-possession-of-a-

firearm count into two groups.

      Because the felon-in-possession-of-a-firearm count embodies conduct that was

treated as a specific offense characteristic of the bank-robbery count, we conclude

that the district court erred in not grouping Rafal’s two counts of conviction.

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II. The Error Was Plain

       Next we must decide whether that error was plain. “An error is ‘plain’ if it is

‘clear or obvious’ under ‘current, well-settled law.’” United States v. Wolfname, 835

F.3d 1214, 1221 (10th Cir. 2016) (quoting United States v. Thornburgh, 645 F.3d

1197, 1208 (10th Cir. 2011)). Generally, showing that an error is “contrary to well-

settled law” requires Supreme Court or Tenth Circuit precedent. Id. (quoting

Thornburgh, 645 F.3d at 1208). But when the explicit language of a statute or rule

resolves an issue, that general rule has less force. See United States v. Edgar, 348

F.3d 867, 871 (10th Cir. 2003). “[T]he absence of circuit precedent [does not]

prevent[ ] the clearly erroneous application of statutory law from being plain error.”

United States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003) (second and third

alterations in original) (quoting United States v. Evans, 155 F.3d 245, 252 (3d Cir.

1998)). When a guideline is “clearly and obviously” limited to a particular

interpretation, a contrary district court application can be plain error. Id.

       Though we haven’t directly addressed the issue, U.S.S.G. § 3D1.2 is clear. It

states that “[a]ll counts involving substantially the same harm shall be grouped

together into a single Group” and that counts involve substantially the same harm

“[w]hen one of the counts embodies conduct that is treated as a specific offense

characteristic in, or other adjustment to, the guideline applicable to another of the

counts.” U.S.S.G. § 3D1.2. And as mentioned, the guideline’s application note

specifically addresses Rafal’s situation. See id. at § 3D1.2 cmt. n.5. So we conclude



                                             7
that the district court’s error in not grouping Rafal’s two counts of conviction was

plain.

III.The Error Affected Rafal’s Substantial Rights

         To satisfy the third prong of the plain-error analysis, Rafal must demonstrate

that the error affected his substantial rights, meaning that he must “‘show a

reasonable probability that, but for the error,’ the outcome of the proceeding would

have been different.” See Molina-Martinez v. United States, 136 S. Ct. 1338, 1343

(2016) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)). “In

most cases a defendant who has shown that the district court mistakenly deemed

applicable an incorrect, higher Guidelines range has demonstrated a reasonable

probability of a different outcome.” Id. at 1346. We have previously recognized that

“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. Sabillon-Umana, 772

F.3d 1328, 1333 (10th Cir. 2014) (citing United States v. Uscanga–Mora, 562 F.3d

1289, 1295 (10th Cir. 2009)).

         Occasionally the application of an erroneous guideline sentencing range will

not give rise to “a reasonable probability of prejudice.” Molina-Martinez, 136 S. Ct at

1346. To refute a defendant’s showing of prejudice, the government can point to

parts of the record, including the sentencing court’s statements. Id. at 1347. And a

court can make clear that in imposing a sentence, it relied on factors independent of

                                             8
the guidelines. Id. at 1346–47. But when “the record is silent as to what the district

court might have done had it considered the correct Guidelines range, the court’s

reliance on an incorrect range in most instances will suffice to show an effect on the

defendant’s substantial rights.” Id. at 1347.

      Here, not grouping the two counts of convictions resulted in a one-level

increase in Rafal’s combined adjusted offense level and a guideline sentencing range

of 70 to 87 months’ imprisonment rather than 63 to 78 months’ imprisonment.

      Despite this miscalculation, the government argues that Rafal is unable to

show a reasonable probability of prejudice “because the district court expressed its

determination to sentence him to 80 months in prison” under two alternatives.

Appellee’s Response Br. at 8. From there, the government argues that the district

court didn’t choose a 70-month sentence because it represented the low end of the

guideline range. Instead, the government says, the district court chose 70 months

with the goal of reaching a total sentence of 80 months’ imprisonment for the two

counts arising from the bank robbery and the supervised release violation.

      But the district court’s statements regarding the two alternative approaches to

sentencing Rafal aren’t sufficient to overcome his showing of prejudice. The district

court didn’t make any statements about considerations independent of the guidelines,

and its reasoning for imposing a total 80-month sentence isn’t clear. Though it

acknowledged that a 70-month sentence represented the low end of the guideline

range for the two counts of conviction arising from the bank robbery, nothing in the

record suggests that the court would have added 17 months for the supervised-release

                                            9
violation, rather than 10 months, had it started with 63 months (the low end of the

correct guideline range.

       Rather, we are faced with a situation much like the one that the Supreme Court

faced in Molina-Martinez, where the district court “said nothing specific about why it

chose the sentence it imposed,” adopted the PSR’s sentencing calculations, and

imposed a sentence at the low end of the miscalculated guideline range. 136 S. Ct. at

1347. In these circumstances, we see a reasonable probability that the district court

would have imposed a different sentence under the correct guideline range. See id. at

1348. So we conclude that the error affected Rafal’s substantial rights.

IV.    The Error Affected the Fairness, Integrity, or Public Reputation of
       Judicial Proceedings

       Finally, Rafal must demonstrate that the error “seriously affect[ed] the

fairness, integrity or public reputation of judicial proceedings.” Archuleta, 865 F.3d

at 1290 (quoting Wireman, 849 F.3d at 962). “We have adopted a presumption that

this question must be answered in the affirmative whenever a defendant has

established that an unobjected-to sentencing error affect[ed] his substantial rights.”

United States v. Godinez-Perez, 864 F.3d 1060, 1068 (10th Cir. 2016) (citing

Sabillon-Umana, 772 F.3d at 1333). When “a court clearly miscalculates the advisory

guideline range . . . a defendant’s substantial rights and the integrity of the judicial

process are surely at risk” because “the benchmark for the entire sentencing process

rests on an obviously mistaken premise.” Sabillon-Umana, 772 F.3d at 1334. But

presumptions can be overcome. Id. “In some cases, the record will reveal a


                                            10
‘fortuitous comment’ from the sentencing judge making clear that its error in

applying the guidelines didn’t adversely affect the defendant’s ultimate sentence.” Id.

(quoting United States v. Knight, 266 F.3d 203, 207 (3d Cir. 2001)).

       Here, the government attempts to overcome this presumption by arguing that

“the district court was determined” to sentence Rafal to 80 months’ imprisonment

and that an 80-month sentence was “appropriate.” Appellee’s Response Br. at 10.

Because the district court could impose the same sentence under the corrected

guideline range, the government argues, a remand for resentencing “would likely be

an exercise in futility.” Id.

       The government’s arguments are insufficient to overcome the presumption that

Rafal’s sentence—beginning with an erroneous guideline calculation—influenced the

fairness, integrity, or public reputation of judicial proceedings. As mentioned, the

district court’s statements about the two sentencing alternatives didn’t establish that

it would have imposed 17 additional months for the supervised-release violation had

the low end of the advisory guideline been correctly calculated at 63 months. Given

the record, we are far from certain that the district court would have imposed an 80-

month sentence if beginning at a low-end of 63 months. To ensure that the district

court sentences Rafal on the correct information, we remand for resentencing.




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                           CONCLUSION

For these reasons, we vacate Rafal’s sentence and remand for resentencing.


                                   Entered for the Court


                                   Gregory A. Phillips
                                   Circuit Judge




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