 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 20, 2015              Decided March 25, 2016

                        No. 14-3055

                UNITED STATES OF AMERICA,
                        APPELLEE

                              v.

                     DWAYNE E. HEAD,
                       APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:07-pt-00348-1)


    Robert S. Becker, appointed by the court, argued the
cause and filed the briefs for appellant.

     Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Vincent H. Cohen
Jr., Acting U.S. Attorney, and Elizabeth Trosman and John P.
Mannarino, Assistant U.S. Attorneys.

   Before: PILLARD, Circuit Judge, and SILBERMAN and
SENTELLE, Senior Circuit Judges.

    Opinion for the Court filed by Circuit Judge PILLARD.
                              2
   Dissenting opinion filed by Senior Circuit Judge
SENTELLE.

     PILLARD, Circuit Judge: While on supervised release
following a prison term for a federal drug-dealing conviction,
Dwayne Head re-offended, thereby violating a condition of
his supervised release. The District of Columbia Superior
Court sentenced Head to a four-year prison term for that new
offense. A federal district judge then revoked Head’s term of
supervised release and imposed a 30-month term of
imprisonment that was to run consecutive to the four-year
sentence for the D.C. offense. Head argues—and the
government agrees—that, in imposing the revocation term as
consecutive to rather than concurrent with the new sentence,
the district court appears to have erroneously invoked the
Sentencing Guidelines in effect at the time of sentencing,
rather than the Guidelines in effect in 1988 when Head
committed the underlying offense. Use of the wrong
Guidelines, Head contends, was a violation of the Ex Post
Facto Clause’s protection against the retroactive increase of
punishment for a completed offense. The government
counters that the apparent error made no difference. Because
Head failed to present his ex post facto claim to the district
court, we review that court’s decision only for plain error.
The judge’s error in relying on post-offense Guidelines, in
violation of the Ex Post Facto Clause, was plain, so we vacate
Head’s post-revocation sentence and remand to the district
court for sentencing under the applicable Guidelines.

                              I.

                             A.

    In response to criminal charges of drug dealing in
September 1988, Head pled guilty on December 4, 1989, to
                             3
possession with intent to distribute thirty grams of cocaine
base. See United States v. Head, 927 F.2d 1361, 1364, 1374
(6th Cir. 1991). A federal judge in Ohio sentenced Head to
235 months in prison and five years of supervised release.

     Head was released from prison and began serving his
five-year term of supervised release on November 14, 2006.
When Head moved to the District of Columbia in 2007, the
district court here took jurisdiction over Head’s supervised
release. Throughout 2008 and 2009, Head’s probation officer
reported that Head had failed to comply with various
conditions of his supervised release, but initially
recommended that the court take no action, in part because
Head was employed. On April 25, 2010, while on supervised
release in the District, Head was arrested for assault with a
dangerous weapon. He was prosecuted in District of
Columbia Superior Court, convicted of the lesser charge of
felony threats, and sentenced to 48 months in prison.

     Because of Head’s conviction in superior court, the
supervised release relating to his decades-old federal
conviction was subject to revocation. See 18 U.S.C. § 3583
(d), (e)(3). At a January 2012 status conference, the federal
district judge revoked Head’s supervised release with this
explanation:

   Well, based upon the conviction, the Court revokes
   your period of supervised release in this case. The
   sentencing commission guidelines actually require
   that the sentence here—which I’ll give you the
   minimum under the guidelines, which is 30 months.
   But the guidelines do require that it be consecutive
   unless I find a basis for a departure.
                               4
   Because of your really poor prior record, I can’t find a
   basis for departure, so the 30 months will be
   consecutive.

App. 95. Head did not timely object to the determination that
the Guidelines required that the sentence be consecutive
rather than concurrent.

                               B.

     The Ex Post Facto Clause, U.S. CONST., Art. I, § 9, cl. 3,
prohibits, among other things, the application of any law that
“changes the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed,” Calder
v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798), including changes in
the law that sufficiently raise the risk of increased
punishment, see Peugh v. United States, 133 S. Ct. 2072,
2082 (2013); United States v. Turner, 548 F.3d 1094, 1100
(D.C. Cir. 2008). Federal law generally requires district
courts to use the Sentencing Guidelines “in effect on the date
the defendant is sentenced,” 18 U.S.C. § 3553(a)(4)(A)(ii),
unless doing so would increase punishment or sufficiently
enhance the risk of an increase to amount to impermissible ex
post facto law, see Peugh, 133 S. Ct. at 2081. A defendant
does “not have to show definitively that he would have
received a lesser sentence had the district court used the
[correct] Guidelines.” Turner, 548 F.3d at 1100.

     The Sentencing Reform Act of 1984 authorizes a
sentencing court to impose as “a part of the sentence a
requirement that the defendant be placed on a term of
supervised release after imprisonment.” 18 U.S.C. § 3583(a).
During supervised release, the offender is required to abide by
certain conditions, including that he not commit another
federal, state, or local crime. Id. § 3583(d). If the court finds
that an offender has violated a condition of his supervised
                              5
release, the court may “revoke” the term of supervised release
and require the offender to serve all or part of that term in
prison.     Id. § 3583(e)(3).     A sentence imposed upon
revocation of supervised release is not punishment for the
violation of the supervised-release condition, but “part of the
penalty for the initial offense.” Johnson v. United States, 529
U.S. 694, 700 (2000).

     The Sentencing Commission added section 7B1.3(f)—the
policy statement at issue here—as part of a November 1,
1990, revision that replaced in its entirety the chapter of the
Guidelines that applies to violations of probation or
supervised release.         UNITED STATES SENTENCING
COMMISSION, GUIDELINES MANUAL app. C, amend. 362
(1990). Before 1990, the Sentencing Guidelines were silent
as to whether a revocation term of imprisonment was to be
served consecutive to, or concurrently with, any other
sentence. See UNITED STATES SENTENCING COMMISSION,
GUIDELINES MANUAL ch.7 (October 1987, effective June 15,
1988). As added in 1990, section 7B1.3(f) reads:

   Any term of imprisonment imposed upon the
   revocation of probation or supervised release shall be
   ordered to be served consecutively to any sentence of
   imprisonment that the defendant is serving, whether
   or not the sentence of imprisonment being served
   resulted from the conduct that is the basis of the
   revocation of probation or supervised release.

USSG § 7B1.3(f) (1990). The revised Guidelines thus newly
directed that a term of imprisonment imposed on revocation of
supervised release be ordered to run consecutively to any
other prison term.
                                6
                               II.

     We have jurisdiction over Head’s appeal of the district
court’s sentencing order under 18 U.S.C. § 3742(a). Because
Head did not raise an ex post facto claim before the district
court, that challenge is forfeited, so subject to plain-error
review. See Fed. R. Crim. P. 52(b); United States v. Olano,
507 U.S. 725, 731-32 (1993). Under Olano’s four-pronged
framework for assessing whether a court may correct an error
not timely raised in the district court, we hold that the district
court’s reliance on the incorrect Guidelines was (1) legal error
that (2) was plain, (3) affected the defendant’s “substantial
rights,” and (4) seriously affected the “fairness, integrity or
public reputation of the judicial proceedings.” Id. at 732. We
accordingly exercise our discretion to identify and correct the
error.

                               A.

     The government acknowledges that it “is a reasonable
inference” that the judge who sentenced Head was referring to
the then-current, 2011 Guidelines policy statement in section
7B1.3(f). Gov’t Br. 16, n.10. At sentencing, the judge did
not expressly cite a particular version or section of the
Guidelines, but his reference to what the Guidelines “require”
tracked section 7B1.3(f)’s provision that a revocation
sentence “shall be ordered to be served consecutively” to the
sentence for the new criminal offense. See USSG § 7B1.3
(1990); see also USSG § 7B1.3 (2011) (same). As noted
above, the Guidelines in effect when Head committed the
underlying offense included no requirement or presumption of
consecutive prison terms upon revocation of supervised
release. See USSG ch. 7 (1988). Unconstrained by section
7B1.3(f), the district court had discretion under the 1988
Guidelines and the general guidance offered by 18 U.S.C. §§
                                 7
3553(a), 3583(e), and 3584 to impose either a consecutive or
concurrent sentence. See United States v. Ayers, 795 F.3d
168, 172 (D.C. Cir. 2015); see also United States v. Dees, 467
F.3d 847, 852 (3d Cir. 2006) (holding, in agreement with
Fourth, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits,
that courts’ general sentencing discretion under 18 U.S.C. §
3584 authorizes district courts revoking supervised release to
impose consecutive or concurrent sentences). Reliance on
section 7B1.3(f) here created at least a “substantial risk” that
Head’s sentence was more severe than it would have been had
the court sentenced him under the Guidelines in effect at the
time of his offense. Turner, 548 F.3d at 1100; see Peugh, 133
S. Ct. at 2084.

     We appreciate the possibility that, in referring to what the
Guidelines “require,” the district judge simply spoke
inartfully. The district judge commented on the lack of “basis
for departure,” which the government reads to suggest that he
appreciated he had some discretion. App. 95. And the judge
noted Head’s “really poor prior record” in violation of the
terms of supervised release, which might justify the same
length of sentence in any event. Perhaps he assumed that he
had authority to avoid the consecutiveness requirement, but
decided not to. Id.1


1
  The term “departure” typically refers to the imposition of a
sentence outside the Guidelines’ numerical range. We need not
decide here in what circumstances a district court might depart from
section 7B1.3(f)’s requirement of consecutive sentencing, where
that requirement applies. We go no further than to observe that,
unlike a fully discretionary choice, a consecutiveness requirement
subject to departure would seem to contain a default bias in favor of
the requirement. As the Supreme Court has explained, grounds for
departure are relatively narrow and “unavailable” in most cases
because “the [Sentencing] Commission will have adequately taken
                                  8
     But it is also possible that the judge felt constrained by
section 7B1.3(f) to give the longer sentence—at least in the
absence of a departure-worthy reason. Had the judge
appreciated the full scope of his discretion, he might have
deemed a concurrent sentence “sufficient, but not greater than
necessary.” 18 U.S.C. 3553(a). He might, for example, have
chosen a concurrent sentence because, by the time of the
revocation sentencing, Head had already served the entirety of
his five-year term of supervised release.2

     On the limited record, we cannot say with confidence that
the district judge appreciated the full range of discretion the
applicable law afforded. He did not mention “discretion,” nor
did he explain how he might have taken into account the
statutory factors that a judge must consider in exercising
discretion in sentencing. See 18 U.S.C. §§ 3583(e); 3553(a).

     The government contends that there is no ex post facto
defect in Head’s sentence, or that any error was surely
inconsequential, for two principal reasons. It characterizes
the court as having made the requisite discretionary decision
unaffected by its apparent invocation of the wrong
Guidelines, and contends that the court would have reached
the same sentence under the older Guidelines.


all relevant factors into account, and no departure will be legally
permissible.” United States v. Booker, 543 U.S. 220, 234 (2005);
see Turner, 548 F.3d at 1099 (noting that “judges are more likely to
sentence within the Guidelines in order to avoid the increased
scrutiny that is likely to result from imposing a sentence outside the
Guidelines”).
2
  The fact that Head completed the term of supervised release did
not moot the revocation because the violation triggering revocation
occurred during the term of supervised release.              In such
circumstances, 18 U.S.C. § 3583(i) allows a court reasonable time
to adjudicate the revocation of supervised release.
                               9
     The government describes the court’s order as
“ultimately driven by” a discretionary judicial determination
that Head’s record merited a consecutive sentence. See Gov’t
Br. 18. If the court in fact imposed the term of imprisonment
consecutively as a matter of discretion not hemmed in by
section 7B1.3(f)’s consecutiveness rule, the government
argues, it acted consistently with the Guidelines in effect at
the time of the offense—and thereby avoided ex post facto
application of the later Guidelines. See Gov’t Br. 17-18.
True enough.

     Our difficulty is that we are constrained by the limited
record statements of the court’s reasons for the sentence it
imposed. Under our decision in Turner, we must consider
how discretion is exercised “in practice” in the particular
case; only in that way can we discern whether limits on the
exercise of discretion “actually ‘create[] a significant risk of
prolonging [an inmate’s] incarceration.’” 548 F.3d at 1100
(quoting Fletcher v. Reilly, 433 F.3d 867, 876-77 (D.C. Cir.
2006)) (alterations in original). In apparent erroneous
reference to section 7B1.3(f), the judge said that the
guidelines “require” consecutive sentences. App. 95. It is not
evident on the record that the judge’s decision making was
equivalent for ex post facto purposes to the discretionary
choice between consecutive and concurrent sentencing,
guided by the full range of sentencing factors made relevant
by 18 U.S.C. 3553(a).

     A misapplication of revised Sentencing Guidelines would
not necessarily violate the Ex Post Facto Clause or require
resentencing if the record were clear that “the District Court
would have imposed the same sentence under the older, more
lenient Guidelines that it imposed under the newer, more
punitive ones,” Peugh, 133 S. Ct. at 2088 n.8; see Gov’t Br.
16-19. But, for the reasons just discussed, the record here
                               10
does not make that clear. Instead, as the government
acknowledges, the district judge appears to have been under
the misconception that he was constrained by section
7B1.3(f). See App. 95. An erroneous belief that a harsher
sentencing requirement displaced an otherwise broadly
discretionary choice creates the kind of risk of increased
punishment against which the Ex Post Facto Clause protects.
See Peugh, 133 S. Ct at 2082. We remand for resentencing so
as not to pretermit the trial judge’s role in exercising the full
discretion the law provides.

                               B.

     The three other Olano factors also support vacatur and
remand for resentencing here: The ex post facto violation was
plain, it affected Head’s substantial rights, and it impaired the
integrity of the sentencing proceeding. 507 U.S. at 732.

     The district court’s error was “plain.” Olano, 507 U.S. at
734. In this circuit, one circumstance in which an error may
be plain is “if, at the time it was made, a clear precedent in the
Supreme Court or this circuit established its erroneous
character.” United States v. Terrell, 696 F.3d 1257, 1260
(D.C. Cir. 2012); see In re Sealed Case, 573 F.3d 844, 851
(D.C. Cir. 2009) (holding that an error can be plain even in
the absence of binding case law where it violates an
“absolutely clear” legal norm). In January 2012, when the
district court revoked Head’s supervised release and ordered
him imprisoned, precedent from this circuit established that
sentencing a defendant under Guidelines other than those in
effect at the time of the offense that “created a substantial risk
that [the] sentence [would be] more severe” was a violation of
the Ex Post Facto Clause. See Turner, 548 F.3d at 1100.

    Application of the wrong Guidelines affected Head’s
“substantial rights.” Olano, 507 U.S. at 734 (quoting Fed. R.
                             11
Crim. P. 52(b)). In the sentencing context, an error affects a
defendant’s substantial rights where there is “a reasonable
likelihood that the sentencing court’s obvious errors affected
his sentence.” United States v. Saro, 24 F.3d 283, 288 (D.C.
Cir. 1994). The circuit courts are in broad agreement that,
even under plain-error review, the use of the wrong
Guidelines, resulting in the risk of an increased sentence,
“should be presumed to affect the defendant’s substantial
rights.” See United States v. Syme, 276 F.3d 131, 158 (3d Cir.
2002) (quoting United States v. Knight, 266 F.3d 203, 207
(3d. Cir. 2001); see also, e.g., United States v. Davis, 397
F.3d 340, 349-50 (6th Cir. 2005) (collecting cases from the
Second, Seventh, Eighth, Ninth, and Tenth Circuits). To the
extent that the district judge may have understood the 2011
Guidelines to require consecutive sentencing here, that
created a risk of a longer term of incarceration than Head
would have received under the 1988 Guidelines—a risk
sufficient to violate the Ex Post Facto Clause, see Peugh, 133
S. Ct. at 2084, and impair Head’s substantial rights, Saro, 24
F.3d at 288.

     On plain-error review, a court of appeals should remedy
any error that “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Puckett v. United
States, 556 U.S. 129, 135 (2009) (quoting Olano, 507 U.S. at
736). We exercise that discretion here because, as a practical
matter, the district court’s error may have extended Head’s
incarceration by nearly three years. Application of the wrong
Guidelines, apparently resulting in a substantially increased
sentence, warrants vacation of the sentence. See, e.g., United
States v. John, 597 F.3d 263, 285-86 (5th Cir. 2010); United
States v. Davis, 397 F.3d 340, 349 (6th Cir. 2005). Our
decision accords with that of several courts conducting plain-
error review that have found similar sentencing increases, or
risks of increases, to be sufficiently significant to call for
                              12
reversal. See, e.g., United States v. Myers, 772 F.3d 213, 219
(5th Cir. 2014); United States v. Woodard, 744 F.3d 488, 497
(7th Cir. 2014); United States v. John, 597 F.3d 263, 286 (5th
Cir. 2010); Davis, 397 F.3d at 345-49; United States v.
Comstock, 154 F.3d 845, 850 (8th Cir. 1998); United States v.
Orr, 68 F.3d 1247, 1252 (10th Cir. 1995). We hold that there
is on this limited record the “requisite degree of risk,” Peugh,
133 S. Ct. at 2082, that the district court’s decision stemmed
from ex post facto application of a Guideline adopted after
Head committed the offense to require resentencing.

                          *    *   *

     We have carefully considered Head’s several other
claims and find no further error. Pursuant to 18 U.S.C.
§ 3742(f), we vacate the district court’s January 20, 2012,
order and remand with instructions to re-sentence Head in
light of the Sentencing Guidelines in effect at the time of his
offense.

                                                    So ordered.
     SENTELLE, Senior Circuit Judge, dissenting: While I
recognize that the majority correctly demonstrates that the
district court technically erred in the wording supporting its
sentence, I cannot join an opinion that vacates and remands the
trial court’s decision ostensibly under plain error review.
Indeed, I fear that this circuit is drifting toward a jurisprudence
in which there is no distinction between reviewing for “plain
error” and simply reviewing to determine whether the district
court erred. See United States v. Brown, 808 F.3d 865 (D.C. Cir.
2015).

    The majority acknowledges that appellant “failed to
present” his ex post facto “argument to the district court.” Maj.
Op. at 2. It further acknowledges that we will therefore review
the court’s “decision only for plain error.” I would note the
context of that review arises from a sentencing proceeding in
which the district court stated:

    Well, based upon the conviction, the Court revokes your
    period of supervised release in this case. The [S]entencing
    [C]ommission guidelines actually require that the sentence
    here—which I’ll give you the minimum under the
    guidelines, which is 30 months. But the guidelines do
    require that it be consecutive unless I find a basis for
    departure.

    Because of your really poor prior record, I can’t find a basis
    for departure, so the 30 months will be consecutive.

App. 95.

     If we are in fact reviewing this proceeding under the plain
error standard, then we affirm unless we conclude that the
district court committed (1) legal error that (2) was plain, (3)
affected the defendant’s “substantial rights,” and (4) seriously
                                2

affected the “fairness, integrity or public reputation of the
judicial proceedings.” United States v. Olano, 507 U.S. 725,
731–32 (1993) (quoted at Maj. Op. 8).

     The legal error element is no different than legal error under
review other than plain error, except that we do not notice it
unless it meets the total criteria applicable under the plain error
standard. The majority, after a thorough scholarly plunge into
the history of the applicable guidelines, concludes that while the
sentencing judge correctly stated the requirements of the current
guidelines as to consecutive or concurrent sentencing, the
version in effect in 1988 at the time of the defendant’s
commission of his first offense (for which the current revocation
is punishment), unlike the guidelines in effect at the time of the
revocation, gave the district judge discretion to sentence
concurrently rather than consecutively. While I am not at all
certain that this error satisfies any common definition of “plain,”
I acknowledge that it is error. However, when the judge’s
record recitation goes on to make plain that he knew that he
could depart and enter a concurrent sentence but was unwilling
to do so because of the seriousness of the defendant’s record, the
chances that this error (whether or not plain) affected the
defendant’s substantial rights seem to me exceeding small and,
at best, theoretical. Likewise, the entry of a sentence that by the
majority’s acknowledgment could be entered based on the
judge’s discretion even under the old guidelines, and would be
required to be entered under the current guidelines, hardly seems
to me to seriously affect the “fairness, integrity or public
reputation of the judicial proceedings.”

     Therefore, I respectfully dissent from what appears to me to
be a conclusion not warranted under plain error review.
