                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2011
                                   ___________

United States of America,           *
                                    *
          Plaintiff-Appellee,       *
                                    * Appeal from the United States
     v.                             * District Court for the
                                    * District of Minnesota.
Matthew Henry Leppa,                *
                                    *
          Defendant-Appellant.      *
                               ___________

                             Submitted: November 14, 2006
                                Filed: December 11, 2006
                                 ___________

Before LOKEN, Chief Judge, LAY and MELLOY, Circuit Judges.
                              ___________

LAY, Circuit Judge.

      Matthew Henry Leppa appeals the sentence imposed by the district court. We
reverse.

                                BACKGROUND

      On May 10, 2005, Leppa was charged by indictment with several controlled
substance violations stemming from a marijuana growing operation. Pursuant to a
plea agreement, Leppa pled guilty to one count of conspiracy to manufacture fifty or
more marijuana plants, in violation of 21 U.S.C. §§ 841 and 849. The plea agreement
contemplated a sentencing range of 36 to 47 months of imprisonment, and a statutory
minimum term of at least three years of supervised release.

      Prior to sentencing, a presentence report (PSR) was prepared. It calculated a
sentencing range greater than the parties anticipated due to Leppa’s criminal history.
Consistent with the plea agreement, however, the PSR stated that Leppa’s guidelines
range of supervised release was three years.1

       At sentencing, the government moved for a departure based on Leppa’s
substantial assistance, see USSG § 5K1.1, but the district court denied the motion. It
did, however, grant a departure based on the overstatement of Leppa’s criminal
history, see USSG § 4A1.3, p.s., for a resulting guidelines range of 46 to 57 months.
The court sentenced Leppa to a term of 46 months of imprisonment, to be followed
by four years of supervised release. The court provided no explanation whatsoever
for deviating from the guidelines and imposing four, rather than three, years of
supervised release.

                                     ANALYSIS

        On appeal, Leppa contests the imposition of a term of supervised release greater
than recommended by the guidelines. At the outset, we must consider our standard
of review. Leppa did not at any time raise an objection to the four-year term, which
would typically limit our review to plain error. United States v. Pirani, 406 F.3d 543,
550 (8th Cir. 2005) (en banc). He argues, however, that the court’s “lack of notice
itself undermined the defense’s meaningful opportunity to object.” (Def’t Br. at 8.)




      1
      Leppa’s guidelines range of supervised release of two to three years was
modified by operation of the three-year statutory minimum for his offense. See USSG
§ 5G1.1; 21 U.S.C. § 841(b)(1)(C).

                                          -2-
       At least one circuit has declined to employ the plain error doctrine when
reviewing an increased supervised release term that neither party sought or anticipated
and which the district court imposed without notice. See United States v. Cortes-
Claudio, 312 F.3d 17, 23 (1st Cir. 2002). Respectfully, we reject this approach and
rather adhere to our traditional, limited review of unpreserved errors consistent with
Federal Rule of Criminal Procedure 52(b). We agree with the First Circuit that the
timing of a sentencing court’s pronouncement of sentence makes correction of “last
minute” errors difficult. Nonetheless, Federal Rule of Criminal Procedure 35(a)
permits a court to correct clear sentencing errors within seven days of sentencing.
Thus, even if the timing of the error makes a contemporaneous objection impractical,
a defendant’s timely Rule 35 motion would alert the sentencing court to the error in
the first instance and provide it the opportunity to correct itself. See, e.g., United
States v. Ellis, 417 F.3d 931, 933 (8th Cir. 2005) (holding a claim of sentencing error
to be preserved where defendant first raised it by way of a Rule 35(a) motion). Leppa
made no such motion here, nor did he take any action to alert the district court of the
error he now contends was obvious on its face. Accordingly, we decline to treat his
claim of error as if it were preserved, and instead review for plain error. Under this
standard, Leppa must show: (1) an error; (2) that was plain; (3) that affected his
substantial rights; and (4) that, if left uncorrected, would result in a miscarriage of
justice. United States v. Olano, 507 U.S. 725, 731-34 (1993); Pirani, 406 F.3d at 550.

       It is undisputed that the guidelines call for three years of supervised release for
Leppa’s offense, USSG § 5D1.2(a)(2), yet the district court imposed four years
without prior notice or any explanation for the higher sentence. Leppa and the
government quarrel about whether the increased term ought to be construed as a
departure or a variance from the guidelines. Our review of the record leads us to
conclude, however, that it is neither: the district court’s sentence appears to simply
reflect a mistake.




                                           -3-
       At Leppa’s hearing on his guilty plea, the district court told Leppa that he was
subject to a three- to five-year guidelines term of supervised release. This, of course,
was wrong. In its Statement of Reasons accompanying Leppa’s sentence, the district
court repeated this mistake, again erroneously determining his guidelines range of
supervised release to be three to five years. In this document, the district court also
affirmed its belief that the sentence it imposed was within the guidelines range.
Moreover, at the sentencing hearing, there was no discussion whatsoever concerning
increasing Leppa’s term of supervised release beyond his guidelines range, by way of
either a departure or a variance. Thus, we are of the firm belief that the district court
simply misapprehended Leppa’s guidelines range of supervised release. This was a
plain error, satisfying the first two elements of Olano.

       We now turn to whether Leppa was prejudiced by the error, that is, whether it
affected Leppa’s substantial rights. United States v. Nahia, 437 F.3d 715, 716-17 (8th
Cir. 2006). To do so, he must show a “reasonable probability” that if not for the error,
he would have received a more favorable sentence. Pirani, 406 F.3d at 552. We find
he has carried this burden. The sentence imposed was outside of the range
recommended by the guidelines, something which may only be realized by way of a
departure or a variance. While these two vehicles for “outside the guidelines”
sentences differ in some respects, both require some basis for the district court’s
deviation to appear on the record. See generally USSG § 5K2.0, p.s. & comment.;
United States v. Bueno, 443 F.3d 1017, 1023-24 (8th Cir. 2006); United States v.
Rivera, 439 F.3d 446, 447-48 (8th Cir. 2006). In that respect, this record is lacking.

      As we have made clear, there is a “range of reasonableness” in which
sentencing courts may choose to fashion a just punishment, United States v. Saenz,
428 F.3d 1159, 1165 (8th Cir. 2005), and a one-year increase in an offender’s term of
supervised release may well fall within that range. That, however, is not the question
before us. Instead, we must ask whether Leppa has shown a likelihood that he would
receive a more lenient sentence if the error was corrected. The error here, as noted

                                          -4-
above, was the district court’s apparent misapprehension of the guidelines range. By
all indications, the district court believed it was imposing a guidelines sentence, and,
indeed, there is no evidence to support the view that it would deviate from a
guidelines sentence in this respect absent the error. Because the correct guidelines
sentence of supervised release is three years, Leppa has demonstrated he was
prejudiced by the erroneous imposition of a four-year term.

       Lastly, we consider whether leaving the error uncorrected will result in a
miscarriage of justice by seriously affecting “‘the fairness, integrity or public
reputation of judicial proceedings.’” Olano, 507 U.S. at 736 (quoting United States
v. Atkinson, 297 U.S. 157, 160 (1936)). Leppa’s period of supervision was
erroneously increased by a full year. If, during that period, Leppa were to violate the
conditions of his supervised release, he would be subject to yet another term of
imprisonment and an increased term of supervised release. See generally USSG
§ 7B1.1-5, p.s. Given this impingement on his liberty, “we have no trouble in
concluding that the error would result in a miscarriage of justice if left uncorrected.”
United States v. Spigner, 416 F.3d 708, 713 (8th Cir. 2005); accord United States v.
Comstock, 154 F.3d 845, 850 (8th Cir. 1998) (“easily conclud[ing]” that a sentencing
error which resulted in the imposition of seventeen additional months of imprisonment
seriously affected the fairness of the defendant’s sentencing proceedings). We thus
exercise our discretion to correct the error.2




      2
       Recently, a panel of our court left uncorrected an error resulting in the payment
of an additional $100 special assessment, in recognition that not every additional
punishment erroneously imposed is “‘serious enough . . . to be described as a
miscarriage of justice and thus constitute plain error.’” United States v. Bailey, ___
Fed. App’x ___, 2006 WL 3373050, at *2 (8th Cir. Nov. 22, 2006) (unpublished per
curiam) (quoting United States v. McCarter, 406 F.3d 460, 464 (7th Cir. 2005)).
There is a considerable qualitative difference, however, between a $100 assessment
wrongly imposed and the restraint on a person’s liberty.

                                          -5-
                                  CONCLUSION

       For the reasons stated herein, we reverse the district court’s imposition of a
four-year term of supervised release, and remand for resentencing consistent with
this opinion.3
                        ______________________________




      3
       Because the error in this case concerned the district court’s application of the
guidelines, we express no opinion on whether a four-year term of supervised release
would be reasonable. United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005).

                                          -6-
