United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued December 13, 2012                Decided July 19, 2013

                         No. 12-3015

                UNITED STATES OF AMERICA,
                        APPELLEE

                              v.

                 RUSSELL JAMES CASO, JR.,
                       APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:07-cr-00332-1)


     Elizabeth G. Oyer argued the cause for appellant. With her
on the briefs was Scott M. Noveck.

     Lauren R. Bates, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief was Ronald C. Machen Jr.,
U.S. Attorney, and Elizabeth Trosman, John P. Mannarino, and
Mary Ann Snow, Assistant U.S. Attorneys.

    Before: GARLAND, Chief Judge, and ROGERS and GRIFFITH,
Circuit Judges.

    Opinion for the Court filed by Chief Judge GARLAND.
                               2
     GARLAND, Chief Judge: Russell James Caso, Jr. is innocent
of the crime for which he was charged and convicted. The
government does not dispute the point. Nonetheless, Caso was
denied an opportunity to collaterally attack his conviction and
sentence because he could not demonstrate that he is also
innocent of a separate and uncharged offense that has a lower
sentencing range under the United States Sentencing Guidelines.
Because Caso was not required to make such a showing, we
reverse the order denying his motion to vacate his conviction
and sentence.

                                I

     Caso’s conviction arose out of his work for former United
States Representative Curt Weldon. Caso initially served as one
of Representative Weldon’s legislative assistants. In 2005, he
was appointed as the Representative’s chief of staff. During this
time, Representative Weldon was approached by a nonprofit
consulting firm (“Firm A”) to take legislative action on two
proposals implicating relations between the United States and
Russia. The same firm retained Caso’s wife to edit written
drafts of those proposals. Over the course of several months,
Firm A paid Caso’s wife $19,000 for what appear to be de
minimis services. Mem. & Order Denying Mot. Vacate 2,
United States v. Caso, No. 07-332 (D.D.C. Jan. 12, 2012) (“Dist.
Ct. Op.”).

     Caso, like many officers and employees of the United States
Congress, was required to file an annual disclosure statement
detailing, among other things, the sources of “income earned by
a spouse from any person which exceed $1,000.” 5 U.S.C. app.
4 § 102(e)(1)(A); see generally 5 U.S.C. app. 4 §§ 101 et seq.
(“Ethics in Government Act of 1978”).              Despite this
requirement, Caso failed to list Firm A’s payments to his wife
on his 2005 disclosure statement. Nonetheless, Caso signed the
                                3
statement, certifying that it was true, complete, and correct.
Dist. Ct. Op. 2.

     On December 4, 2007, the government charged Caso with
conspiracy to commit honest-services wire fraud, in violation of
18 U.S.C. §§ 371, 1343, and 1346. See 18 U.S.C. § 371
(proscribing conspiracy to defraud the United States); id. § 1343
(proscribing “any scheme or artifice to defraud” that involves
the interstate transmission of signals over a wire); id. § 1346
(defining “scheme or artifice to defraud” to include “a scheme
or artifice to deprive another of the intangible right of honest
services”). On the same day, Caso entered into a plea
agreement, admitting that he had intentionally failed to disclose
Firm A’s payments to his wife and that “[a] reason for this
non-disclosure was that [he] knew that his wife’s financial
relationship with Firm A created a personal conflict of interest.”
Statement of Offense 3-4 (Dec. 7, 2007) (Appellant’s App. 14-
15); see Plea Agreement 2 (Dec. 7, 2007) (Appellant’s App. 19).

     On July 30, 2009, Caso was sentenced to three years’
probation, including a 170-day term of home confinement.
Caso’s term of probation ended on August 14, 2012, several
months before oral argument on this appeal was heard. See
Appellant’s Br. 9. The expiration of Caso’s term of probation
does not moot Caso’s appeal, however, because his conviction
has collateral consequences. See Carafas v. LaVallee, 391 U.S.
234, 237-38 (1968); Hamdan v. United States, 696 F.3d 1238,
1244-45 (D.C. Cir. 2012); United States v. Maddox, 48 F.3d
555, 560 (D.C. Cir. 1995).

     Shortly after Caso was sentenced, the Supreme Court
handed down Skilling v. United States, 130 S. Ct. 2896 (2010),
a decision that substantially limited the permissible reach of 18
U.S.C. § 1346, the honest-services fraud statute. Prior to
Skilling, the government had used that statute to prosecute
                                 4
public officials who failed to disclose conflicts of interest, on the
theory that such nondisclosure constituted a “scheme or artifice
to deprive another of the intangible right of honest services,” 18
U.S.C. § 1346. See Skilling, 130 S. Ct. at 2932-33. In Skilling,
however, the Court interpreted § 1346 more narrowly. In an
effort to avoid a “vagueness shoal,” id. at 2907, the Court held
that § 1346 “proscribe[s] bribes and kickbacks -- and nothing
more.” Id. at 2932.

     After the Supreme Court issued its decision, Caso filed a
motion under 28 U.S.C. § 2255 to vacate and set aside his
conviction and sentence on the ground that “the conduct to
which he admitted in the statement of the offense -- which did
not stipulate [his] receipt of a bribe or a kickback -- does not
constitute an offense under § 1346 following Skilling.” Dist. Ct.
Op. 4; see Def.’s Mot. Vacate 1 (Apr. 25, 2011). The
government opposed the motion. It did not dispute that Caso
was “‘actually innocent’ of the honest services wire fraud upon
which his conspiracy conviction was based, as that offense now
is defined under Skilling.” Opp’n to Def.’s Mot. Vacate 16
(Nov. 3, 2011).1 But it maintained that Caso had procedurally
defaulted his Skilling challenge by failing to directly appeal his
conviction on the ground that the conduct to which he pled did
not constitute an offense. Id. at 9-10; see Dist. Ct. Op. 6.

     The district court agreed with the government. It noted that
a defendant is ordinarily required to first “raise the basis of his
habeas challenge during trial or on appeal in order to assert that
claim on collateral review.” Dist. Ct. Op. 6 (citing United States
v. Frady, 456 U.S. 154, 162 (1982)). Because Caso had failed


    1
      See Dist. Ct. Op. 6 (“The defendant and the government both
agree that the defendant is actually innocent of the crime of honest
services wire fraud as defined post-Skilling, since the admitted-to
conduct did not include a bribe or a kickback.”).
                                 5
to do so, the court held that he had presumptively defaulted his
claim for collateral relief. Finally, the court agreed with the
government that Caso had failed to satisfy the narrow conditions
for excusing such a default that the Supreme Court set out in
Bousley v. United States, 523 U.S. 614 (1998).

     In Bousley, the Court noted that, “[w]here a defendant has
procedurally defaulted a claim by failing to raise it on direct
review, the claim may be raised in habeas only if the defendant
can first demonstrate” one of two conditions: (i) “cause” for the
default and “actual prejudice” resulting therefrom, or (ii) that the
defendant is “actually innocent.” Id. at 622 (citing, inter alia,
Murray v. Carrier, 477 U.S. 478, 485, 496 (1986)). To satisfy
the second condition, the “petitioner must demonstrate that, ‘“in
light of all the evidence,’” ‘it is more likely than not that no
reasonable juror would have convicted him.’” Id. at 623
(quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995) (quoting
Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack
on Criminal Judgments, 38 U. CHI. L. REV. 142, 160 (1970))).
In addition, and central to this appeal, the Bousley court
announced the following rule:

         In cases where the Government has forgone more
         serious charges in the course of plea bargaining,
         petitioner’s showing of actual innocence must also
         extend to those charges.

Id. at 624 (emphasis added).

    Caso has not attempted to satisfy the first condition for
overcoming procedural default; he relies solely on the second.
To meet that condition, the district court held that Caso had to
demonstrate his “actual innocence” not only of the crime for
which he was charged and convicted -- conspiracy to commit
honest-services wire fraud, in violation of 18 U.S.C. § 371 -- but
                                6
also of the separate, uncharged offense of making a “materially
false . . . statement” to the government, in violation of 18 U.S.C.
§ 1001. The court held that the government had forgone the
false statement charge in the course of bargaining, and that this
charge was just as serious as the honest-services conspiracy
charge of which Caso had been convicted. Concluding that
Caso could not show his actual innocence of the false statement
charge in light of the admissions he made in his plea agreement,
the court denied his motion to vacate his conviction and
sentence.

     The question at issue on this appeal is whether, in order to
fall within the “actual innocence” condition for excusing
procedural default, Caso is required to show his actual
innocence of the false statement charge. Because that is a legal
question, we review the district court’s holding de novo. United
States v. Weaver, 234 F.3d 42, 46 (D.C. Cir. 2000).

                                II

     Caso proffers three arguments for why he should not be
required to demonstrate his “actual innocence” of the separate,
uncharged offense of making a false statement. In this Part, we
set out his first two arguments. We do not, however, need to
resolve them. As we discuss, even if Caso is wrong about them,
his third argument -- which we set out in Part III -- is sufficient
to require a decision in his favor.

                                A

     Caso’s first contention is that Bousley does not require him
to show his “actual innocence” of making a false statement in
violation of 18 U.S.C. § 1001 because he was never charged
with that crime. Caso notes that Bousley states that a habeas
petitioner must show his actual innocence of “more serious
                                7
charges” that the government “has forgone.” Bousley, 523 U.S.
at 624 (emphasis added). In his view, this refers to charges that
were actually presented in an indictment or information.

     But Bousley’s use of the word “charges” is not alone
sufficient to establish Caso’s position. There is nothing strained
about concluding that a prosecutor can forgo “charges” either by
dropping them after an indictment or by never bringing them at
all. Notably, Bousley referenced charges forgone by the
prosecution “in the course of plea bargaining,” id., a process that
may either follow or precede the issuance of an indictment (or
information).

     To support his interpretation, Caso points us to Bousley’s
application of its own rule. Kenneth Bousley had pled guilty to
“using” a firearm during a drug trafficking crime in violation of
18 U.S.C. § 924(c)(1), a provision that makes it unlawful to use
or carry a firearm during such a crime. Bousley subsequently
filed a 28 U.S.C. § 2255 motion collaterally attacking his
conviction. After the Supreme Court narrowed the meaning of
“using” to “active employment,” see Bailey v. United States, 516
U.S. 137 (1995), Bousley contended that his guilty plea was
neither knowing nor intelligent because the district court had
misinformed him about the nature of the charged offense. The
Court held that, although Bousley had procedurally defaulted
this claim by failing to raise it on direct appeal, he could
overcome that default if he could demonstrate that he did not
“use” a firearm as the term was defined in Bailey. The Court
rejected the government’s argument that Bousley had to
demonstrate he was actually innocent not only of “using” a
firearm, but also of “carrying” one. Bousley, 523 U.S. at 624.
The Court gave the following reasons:

         [P]etitioner’s indictment charged him only with ‘using’
         firearms in violation of § 924(c)(1). And there is no
                                8
         record evidence that the Government elected not to
         charge petitioner with ‘carrying’ a firearm in exchange
         for his plea of guilty.

Id.

     Focusing on the first sentence in the above quotation, Caso
maintains that he does not have to demonstrate his innocence of
the false statement offense because the government never
charged him under § 1001. But the Supreme Court did more
than merely look to Bousley’s indictment to see what the
government charged. In addition, it observed that “there is no
record evidence that the Government elected not to charge
petitioner with ‘carrying’ a firearm in exchange for his plea of
guilty.” Id. In Caso’s case, by contrast, the government
contends (and the district court agreed) that it does have “record
evidence” that it elected not to charge him with making a false
statement in violation of 18 U.S.C. § 1001.

     In support of this contention, the government points to an
affidavit from its lead prosecutor, averring that the government
had indeed contemplated charging Caso with violating § 1001,
but had consciously forgone doing so as part of the plea
agreement. Gov’t Br. 27; see Decl. of Howard Sklamberg 2
(Supplemental App. at 84). Caso responds that only evidence
created contemporaneously with a charging decision should be
considered in determining what charges the government elected
not to bring. Considering post hoc record evidence “would
invite abuse,” he argues, because the “government can always
point to new or additional charges that its prosecutors could
have or would have pursued but for the plea agreement.”
Appellant’s Br. 24, 26.

    But there is more than just post hoc evidence in this case.
As part of the plea agreement, the government agreed that Caso
                                9
would “not be further prosecuted criminally for the conduct set
forth in the attached Statement of Offense.” Plea Agreement 1.
For his part, Caso agreed that the Statement of Offense “fairly
and accurately” described his conduct. Id. at 2. Although that
statement did not specifically cite 18 U.S.C. § 1001, it did
include admissions that were sufficient to establish at least a
presumptive violation of that section. In particular, Caso
stipulated that he had “intentionally failed to disclose that his
wife received payments from Firm A” on his financial
disclosure form, “even though he knew that he was required to
do so.” Statement of Offense 3-4. And he conceded that “[a]
reason for this non-disclosure was that [he] knew that his wife’s
financial relationship with Firm A created a personal conflict of
interest.” Id. at 4. The district court noted that these
contemporaneous writings made the prosecutor’s affidavit
“eminently credible.” Dist. Ct. Op. 9.

     Nonetheless, the relevant language in Bousley is ambiguous.
The Court’s reference to “record evidence” does not clearly
resolve whether post hoc affidavits of the kind presented by the
government should be considered in determining whether the
government considered and then dropped a charge. Nor does the
Court’s reference to “forgone . . . charges” resolve whether the
government’s decision to forgo a charge must have been
expressly made or whether it is sufficient that it be implicit in
the conduct the defendant acknowledges in his plea. Because
Caso wins this appeal even if we assume that the government
agreed to forgo the false statement charge, see infra Part III, we
need not resolve those questions today.

                                B

    Caso’s second argument is that Bousley’s “actual
innocence” requirement does not extend to the § 1001 offense
because that offense was not “more serious,” Bousley, 523 U.S.
                                 10
at 624, than the § 371 charge. In his view, it was at most
“equally serious.” The parties dispute the appropriate measure
of seriousness, an issue we address in Part III. The government
insists that the correct measure is the statutory maximum
penalty; Caso contends that the correct measure is the
Sentencing Guidelines range. But as Caso notes, even if we
were to adopt the government’s measure, the § 1001 charge of
making a false statement and the § 371 charge of conspiring to
commit honest-services wire fraud are equally serious: both
have the same statutory maximum penalty of 5 years’
imprisonment.2

     The government argues, and the district court held, that
Bousley requires a habeas petitioner to show not only that he is
actually innocent of the charge to which he pled guilty, but also
“of any charges of greater or equal seriousness” that the
government forwent in exchange for the guilty plea. Gov’t Br.
13 (emphasis added); see Dist. Ct. Op. 10-12. In response, Caso
points to Bousley’s plain language, which only extends the
showing-of-innocence requirement to “more serious charges.”
Bousley, 523 U.S. at 624 (emphasis added).

     Once again, the Bousley Court’s application of its own rule
generates ambiguity with respect to the meaning of its language.
As we noted above, in Bousley the Court looked to the
indictment and other record evidence to determine whether the
habeas petitioner had to show his actual innocence of “carrying”
as well as “using” a firearm. Yet, as the government points out,
the “carrying” offense bears the same statutory penalty as the


     2
     The offense of honest-services wire fraud itself, 18 U.S.C.
§§ 1343, 1346, is more serious than the false statement offense by any
measure because it has a statutory maximum penalty of 20 years.
Caso was charged only with conspiracy to commit such fraud under
18 U.S.C. § 371, which has a 5-year maximum.
                                   11
“using” offense for which Bousley was convicted. See 18
U.S.C. § 924(c)(1). Likewise, the two offenses are assigned the
same base offense level under the Sentencing Guidelines. See
U.S. SENTENCING GUIDELINES MANUAL § 2K2.4 (2008)
(“U.S.S.G.”). Hence, if it were unnecessary to show actual
innocence of an “equally serious” charge, the Court’s analysis
would have been superfluous. The fact that the Court
nonetheless undertook that analysis suggests that it intended the
actual innocence requirement to extend to “equally serious”
charges, notwithstanding that its language mentioned only
“more serious” ones. Moreover, as we note below, the likely
rationale for the Bousley rule supports requiring petitioners to
show their innocence of equally serious charges. See infra note
6.

     The few courts of appeals that have considered this issue
appear divided with respect to its resolution.3 And Caso is
surely correct that we should hesitate before adding a condition
not included in the express language of the Supreme Court’s
opinion. See generally United States v. Oakar, 111 F.3d 146,
153 (D.C. Cir. 1997). Once again, because Caso wins this
appeal even if we assume that he must demonstrate his
innocence of charges both equal to and more serious than the
honest-services conspiracy charge, see infra Part III, we do not
need to pursue this issue further.




     3
      Compare Lewis v. Peterson, 329 F.3d 934, 937 (7th Cir. 2003)
(“The logic of the Bousley opinion does not require that the charge
that was dropped or forgone . . . be more serious than the charge to
which the petitioner pleaded guilty. It is enough that it is as serious.”),
with United States v. Johnson, 260 F.3d 919, 921 (8th Cir. 2001)
(implying that one charge must be “more serious” than the other).
                              12
                              III

     Even if we assume that the government did forgo the false
statement charge, and even if we assume that a habeas petitioner
must show his innocence of a forgone charge that is of either
equal or greater seriousness than the charge of conviction, Caso
contends that we must nonetheless reverse the district court.
That is so, he argues, because the § 1001 charge is of neither
equal nor greater seriousness than the § 371 charge to which he
pled guilty. Rather, a violation of § 1001 is a less serious
offense than a violation of § 371. It is less serious, Caso
maintains, because its Sentencing Guidelines range is lower and
because the Guidelines provide the proper measure of the
relative seriousness of offenses.

     The government disagrees. It maintains, and the district
court held, that seriousness can only be measured by comparing
the statutory maximum penalties for each offense. As noted
above, by that measure violations of § 1001 and § 371 are
equally serious.

     In Subpart A, we consider whether the Guidelines or the
statutory maxima are the appropriate measure of seriousness
under Bousley. In Subpart B, we apply our conclusion to the
facts of Caso’s case.

                               A

     Bousley did not tell us which measure of seriousness to
employ in determining which offenses are “more serious.” Nor
did it explain the rationale for requiring habeas petitioners to
demonstrate their innocence of “more serious” offenses.
Although intuiting the Court’s unexpressed rationale is a tricky
business, we must attempt to do so because determining which
                                 13
measure of seriousness most closely satisfies that rationale is the
best way to decide which measure to apply.

     1. The parties appear to believe that the rationale for the
“more serious offense” requirement rests on the dynamics of
plea bargaining -- i.e., that it represents an effort to recreate the
bargaining outcome that the parties would have reached absent
the invalid charge. It is not clear, however, how the “more
serious” requirement meshes with those dynamics. The
government suggests that, in a case in which it has forgone a
more serious charge, a showing of innocence regarding that
charge is required because it would have demanded a plea to the
more serious charge had it known the charge of conviction was
invalid. That may well be true. But surely the government
would have made the same demand if the only other charge had
been a less serious one, and yet the Bousley rule does not
encompass such a charge. Moreover, even if the government
had demanded a plea to the more serious charge, it is by no
means clear that the defendant would have acceded to that
demand. It is possible that he would have agreed to plead rather
than go to trial, in the hope of receiving leniency from the court.
But it is also possible that he would have chosen to take his
chances at trial rather than plead to a more serious charge
carrying the risk of a higher sentence.4 In short, the dynamics of
plea bargaining are complicated -- even more complicated if we
factor in offenses of equal severity -- and it is not at all clear that
the “more serious” rule goes very far toward recreating the


     4
      There is similar uncertainty regarding the scenario in which the
remaining charge carries a lower sentence. It is possible that a
defendant who agreed to plead to a more serious charge would have
pled to a less serious charge if he had known that the offense of
conviction was invalid. But it is also possible that, with his exposure
limited to a lower sentence, the defendant would have preferred to
take his chances at trial.
                                 14
bargaining outcome the parties would likely have reached had
they known the charge of conviction would be invalidated.5

     Another, possibly more plausible, rationale relates to the
equities of plea bargaining rather than to its dynamics. The
Court may have regarded it as fair that, if the uncharged offense
is more serious than the offense of conviction, the lesser penalty
for the latter should stand unless the defendant can show that he
is innocent of both offenses. This ensures, the Seventh Circuit
has said, that the defendant does not receive an unjustified
“windfall.” Lewis, 329 F.3d at 936.6 But if the only uncharged
offense is less serious than the offense of conviction, it would
plainly be unfair to force the defendant to suffer the greater
penalty associated with a crime of which he can demonstrate his
innocence. Whether or not the defendant is guilty of the less
serious uncharged offense, there is no justification for making
him bear a greater penalty for a crime that he did not commit.
To put the point more sharply: we should not require a person
to spend 30 years in prison on an erroneous murder conviction
because he was guilty of an uncharged theft offense that would
carry a sentence of one year.

   2. In the end, it does not matter whether the rationale for the
Bousley rule is rooted in the dynamics of the plea bargaining


     5
      See generally Stephanos Bibas, Plea Bargaining Outside the
Shadow of Trial, 117 HARV. L. REV. 2463, 2464-67 (2004) (noting
that a host of structural distortions, including imperfect heuristics,
psychological biases, lawyering problems, information deficits, and
risk preferences all affect plea bargaining decisions).
     6
      Similar considerations may suggest that the equity rationale’s
logic extends to an equal as well as more serious charge. As noted in
Part II.B, however, there are contrary considerations. We do not need
to resolve the question to resolve Caso’s case.
                                    15
process or in its equities (or in both). Either rationale leads to
the conclusion that the appropriate measure of the seriousness of
an offense must be derived from the Sentencing Guidelines
rather than the statutory maximum penalty.

     There is no doubt that, in deciding whether to plead and
what to plead to, defendants rely primarily on their expected
Guidelines exposure rather than on the statutory maximum for
the offense. See generally Peugh v. United States, 131 S. Ct.
2072, 2085 (2013) (plurality opinion) (explaining that a
defendant who is contemplating a plea “will be aware that the
[Guidelines] range is intended to, and usually does, exert
controlling influence on the sentence that the court will
impose.”).7 The United States Attorneys’ Manual makes clear
that the government makes the same calculation in deciding the
charges upon which it will insist. See U.S. ATTORNEYS’
MANUAL § 9-27.300(A) (instructing United States Attorneys to
charge “the most serious offense that is consistent with the
nature of the defendant’s conduct,” and explaining that “[t]he
‘most serious’ offense is generally that which yields the highest
range under the sentencing guidelines”).




     7
      Indeed, our cases have made clear that a defense counsel’s
conduct may be constitutionally deficient if counsel fails to advise his
client of the correct Guidelines range he would face upon taking a
plea. See United States v. Hanson, 339 F.3d 983, 990 (D.C. Cir.
2003); United States v. Booze, 293 F.3d 516, 518 (D.C. Cir. 2002);
United States v. McCoy, 215 F.3d 102, 108 (D.C. Cir. 2000); United
States v. Gaviria, 116 F.3d 1498, 1512 (D.C. Cir. 1997); cf. U.S.S.G.
§ 6B1.2 cmt. (“The Commission encourages the prosecuting attorney
prior to the entry of a plea of guilty . . . to disclose to the defendant the
facts and circumstances . . . that are relevant to the application of the
sentencing guidelines.”).
                                 16
      This reliance on the Guidelines is plainly logical. Although
the government correctly notes that the Guidelines are no longer
binding on district courts, see United States v. Booker, 543 U.S.
220 (2005), the Supreme Court reminded us just this Term that
they nonetheless remain the “lodestone of sentencing.” Peugh,
131 S. Ct. at 2084 (majority opinion). “Even after Booker . . .,
district courts have in the vast majority of cases imposed either
within-Guidelines sentences or sentences that depart downward
from the Guidelines on the Government’s motion. In less than
one-fifth of cases since 2007 have district courts imposed above-
or below-Guidelines sentences absent a Government motion.”
Id. Nor is this mere happenstance. Guidelines calculations are
still “the starting point and the initial benchmark” for every
sentencing decision, and “district courts must begin their
analysis with the Guidelines and remain cognizant of them
throughout the sentencing process.” Id. at 2080, 2083 (quoting
Gall v. United States, 552 U.S. 38, 49, 50 n.6); see United States
v. Turner, 548 F.3d 1094, 1099-1100 (D.C. Cir. 2008).8 “These
requirements mean that ‘[i]n the usual sentencing, . . . the judge
will use the Guidelines range as the starting point in the analysis
and impose a sentence within the range.’” Peugh, 131 S. Ct. at
2083 (quoting Freeman v. United States, 131 S. Ct. 2685, 2692
(2011)). Accordingly, in deciding what charge to demand or to
accept, the parties must necessarily look to the Guidelines.

    Looking to the statutory maxima, by contrast, would
provide the parties with little useful information. The statutory


     8
      Moreover, a district court’s “[f]ailure to calculate the correct
Guidelines range constitutes procedural error.” Peugh, 131 S. Ct. at
2080. And courts of appeals may -- and this Circuit does -- “presume
that a within-Guidelines sentence is reasonable.” Id. (citing Rita v.
United States, 551 U.S. 338, 347 (2007)); see United States v. Watson,
476 F.3d 1020, 1023 (D.C. Cir. 2007); United States v. Dorcely, 454
F.3d 366, 376 (D.C. Cir. 2006).
                               17
ranges are far broader than the Guidelines ranges. Compare 18
U.S.C. § 1001 (authorizing a sentence between 0 and 5 years
absent special circumstances), with U.S.S.G. § 2B1.1
(generating Guidelines ranges as narrow as six months). And
courts rarely sentence defendants to the statutory maxima. See
U.S. SENTENCING COMM’N, SPSS DATAFILE FOR FISCAL YEAR
2012, available at http://www.ussc.gov/
Research_and_Statistics/Datafiles/index.cfm (data set indicating
that approximately 1% of offenders sentenced in fiscal year
2012 received the applicable statutory maximum).

     As we discuss below, Caso’s Sentencing Guidelines range
for both the § 1001 and the § 371 offense are well below the
statutory maximum for each offense. Hence, if the rationale of
the Bousley rule is to recreate the bargaining outcome that the
parties would likely have reached absent an invalid charge, we
must appraise any forgone charges just as the parties would have
-- by reference to the Guidelines.

     An equity rationale likewise requires resort to the
Guidelines. On that rationale, a defendant should not be
absolved of his conviction and sentence if he cannot show he is
innocent of an uncharged crime that carries an even longer
sentence. At the same time, a defendant should not be required
to serve a longer sentence associated with a crime he did not
commit, just because he cannot demonstrate his innocence of
another crime that would have yielded a shorter sentence. Once
again, knowing the statutory maxima is largely irrelevant to this
analysis. The operative question is how severe a sentence the
forgone charge would likely have yielded. Only the Guidelines
can generate a reasonable answer to that question.

     The sole argument the government makes for using
statutory maxima as the measure of seriousness for Bousley
purposes is that the maxima reflect Congress’ judgment
                               -18-
regarding the relative seriousness of offenses. It is not even
clear that this is correct as a matter of congressional
understanding, as it was Congress that authorized the Sentencing
Guidelines and mandated that district courts consider them in
imposing sentences. See 28 U.S.C. § 994; 18 U.S.C.
§ 3553(a)(4).9 But even if the statutory maxima do suggest
Congress’ view of the relative seriousness of offenses, a focus
on Congress’ perception responds to neither of the possible
rationales for the Bousley rule: it is irrelevant both to the
dynamics of plea bargaining and to its equities. And the
government proffers no reason why the Bousley Court would
have wanted congressional perceptions to govern a defendant’s
right to have his habeas claim heard if he was convicted of a
crime of which he is actually innocent.

     In sum, we conclude that the appropriate measure of the
relative seriousness of offenses for purposes of the Bousley rule
must be derived from the Sentencing Guidelines rather than the
statutory maxima. Accord United States v. Halter, 217 F.3d
551, 553 (8th Cir. 2000); United States v. Lloyd, 188 F.3d 184,
189 n.13 (3d Cir. 1999).

                                B

     Caso was sentenced for conspiracy to commit
honest-services wire fraud, an offense with a Guidelines base
offense level of 14. Pre-Sentence Report (PSR) ¶ 32; see
U.S.S.G. § 2C1.1(a)(1) (2008); id. § 2X1.1(a). Because the
value of the payments his wife received was more than $10,000
but less than $30,000, the base offense level was enhanced by


    9
      See also U.S.S.G. § 1A1.3, at 2-3 (“Congress sought
proportionality in sentencing through a system that imposes
appropriately different sentences for criminal conduct of differing
severity.”).
                                -19-
four levels to 18. PSR ¶ 33; see U.S.S.G. §§ 2C1.1(b)(2),
2B1.1(b)(1)(C).      After a reduction for acceptance of
responsibility, Caso’s total offense level was 15. PSR ¶¶ 39, 40;
see U.S.S.G. § 3E1.1(b). For a defendant like Caso, who had no
prior criminal history, that total offense level corresponded to a
Guidelines range of 18-24 months. PSR ¶ 82; U.S.S.G. ch. 5, pt.
A.10

     By contrast, the offense of making a false statement under
18 U.S.C. § 1001 corresponds to a base offense level of 6. See
U.S.S.G. § 2B1.1(a)(2). Under the circumstances of this case,
there appear to be no relevant enhancements. See id.
§ 2B1.1(b). With the appropriate reduction for acceptance of
responsibility, the total offense level would have been 4. See id.
§ 3E1.1(a).11 Because Caso had no prior criminal history, his
Guidelines range would have been the lowest range possible, 0-6
months, see id. ch. 5, pt. A, well short of the 18-24 months range
for a violation of § 371. On this basis, the false statement
offense was the less serious offense for Bousley purposes.12

    One of the government’s arguments against using the
Guidelines rather than the statutory maxima as the measure of

     10
      See Dist. Ct.’s Statement of Reasons 1 (Aug. 13, 2009)
(adopting the above calculations); Gov’t Sent’g Mem. 3 (July 27,
2009) (recommending the above calculations but urging the court to
apply an additional enhancement that would have increased the total
offense level by 4 levels to 19).
     11
       See also U.S.S.G. § 3E1.1(b) (limiting the reduction for
acceptance of responsibility to 2 levels unless the offense level prior
to the reduction is 16 or greater).
     12
      See Appellant’s Br. 38 & n.8. The government neither
challenges nor addresses Caso’s calculation of what his Guidelines
range would have been for making a false statement.
                                 -20-
seriousness is that several Guidelines factors do not relate to the
seriousness of the statutory offense, but rather to the
circumstances of the particular case. In this case, the
enhancement for the value of the payments Caso’s wife received
is such a factor. In addition, there are other factors that relate to
the characteristics of the defendant rather than to those of the
offense: here, for example, Caso’s acceptance of responsibility
and his criminal history. Although we take the government’s
point, a good argument can be made that all of these factors are
relevant to evaluating relative seriousness. All are part of the
determination of the defendant’s final Guidelines range and
hence of his likely sentence, and both possible rationales for the
Bousley rule depend upon knowing what the defendant’s actual
sentence likely would be -- not what some average or typical
sentence might be for the mine run of those who commit the
same statutory offense.13

     But even if we were to consider the Guidelines shorn of any
factors particular to the defendant or his conduct, we would
reach the same result in this case. The base offense level for all
public officials who conspire to commit honest-services fraud is
14; the base offense level for all those who make a false
statement is 6. On this measure, the former remains the more
serious charge.14 The same is true if one looks to the resulting

     13
        Cf. Lloyd, 188 F.3d at 189 n.13 (“[I]t is the actual penalty
prospectively assessed this defendant for each Count -- determined in
accordance with the refining criteria of the United States Sentencing
Guidelines and set forth in the government’s Presentencing Report --
that is relevant to our comparison of the seriousness of the respective
charges at the time of the plea bargain.”).
     14
       Cf. Halter, 217 F.3d at 554 (“[T]he Guidelines themselves
specifically refer to the ‘most serious’ count as being the one with the
higher offense level. We choose to adopt this understanding of the
phrase ‘more serious’ for the purpose of applying Bousley.”) (citing
                               -21-
Sentencing Guidelines ranges for any criminal history category.
See U.S.S.G. ch. 5, pt. A.

     In a footnote, the government contends that, even if we do
consider the Guidelines in measuring the seriousness of an
offense, our “inquiry should not be limited solely to the
applicable guideline range, but to the actual penalty
prospectively assessed this defendant.” Gov’t Br. 35 n.17
(internal quotation marks omitted). In this regard, the
government reminds us that Caso was not sentenced to 18-24
months on his § 371 charge. Instead, because the government
filed a section 5K1.1 departure motion advising the court that
Caso had provided substantial assistance to its investigation,
Caso was sentenced to three years of probation, including 170
days of home confinement. See U.S.S.G. § 5B1.1(a)(1). But
that suggests that Caso would have received an even lower
sentence -- most likely, probation without confinement -- had he
instead pled to the false statement charge, since the Guidelines
authorize a sentence of probation for such a charge even before
taking into account a defendant’s cooperation. See id.
§§ 2B1.1(a)(2); 5B1.1(a)(1).

    In sum, by any relevant measure, the government did not
forgo a more serious charge when it charged Caso with
conspiring to commit honest-services wire fraud.

                               IV

     Under the rule enunciated in Bousley, a defendant who has
procedurally defaulted a claim by failing to raise it on direct
review may raise it in habeas if he can demonstrate that he is
actually innocent both of the charge for which he was convicted
and of “more serious” charges that the government forwent in


U.S.S.G. § 3D1.3(a) (1998)).
                               -22-
the course of plea bargaining. Bousley, 523 U.S. at 624.15 If no
“more serious” charges were waiting in the wings, the defendant
need only demonstrate his actual innocence of the charge of
conviction.

     We hold today that the appropriate measure of
“seriousness” for purposes of this rule must be determined by
reference to the United States Sentencing Guidelines. This
approach reflects the continued relevance of the Guidelines in
charging decisions, plea bargaining, and sentencing, and best
aligns with any plausible rationale for the Bousley rule. Because
Russell Caso is actually innocent of his offense of conviction,
and because the government did not forgo any more serious
charge in the course of plea bargaining, the judgment of the
district court is

                                                        Reversed.




    15
      As noted in Part I, a defendant may also raise a procedurally
defaulted claim if he can demonstrate “cause” for the default and
“actual prejudice” resulting therefrom. Bousley, 523 U.S. at 622.
