                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-6-2001

USA v. Knight
Precedential or Non-Precedential:

Docket 99-5642




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"USA v. Knight" (2001). 2001 Decisions. Paper 204.
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Filed September 6, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-5642

UNITED STATES OF AMERICA

v.

RANGI KNIGHT,

       Appellant

Appeal from the United States District Court
for the District of Delaware
(D.C. Crim. No. 99-cr-00010-2)
District Judge: Honorable Joseph J. Longobardi

Submitted Under Third Circuit LAR 34.1(a)
July 16, 2001

Before: MANSMANN, SCIRICA and RENDELL,
Circuit Judges.

(Filed: September 6, 2001)

       Carl Schnee, Esquire
        United States Attorney
       Richard G. Andrews, Esquire
        First Assistant U.S. Attorney
       Office of the United States Attorney
       1201 Market Street
       P.O. Box 2046, Suite 1100
       Wilmington, DE 19899-2046

        COUNSEL FOR APPELLEE
       Raymond M. Radulski, Esquire
       1225 North King Street
       Legal Arts Building
       Wilmington, DE 19801

        COUNSEL FOR APPELLANT

OPINION OF THE COURT

MANSMANN, Circuit Judge.

Rangi Knight appeals from his sentence as a career
offender, asserting that the District Court based his
sentence on non-includable offenses. We hold that under
the plain error doctrine, application of an incorrect Federal
Sentencing Guidelines range presumptively affects
substantial rights, even if it results in a sentence that is
also within the correct range. Accordingly, we hold that the
District Court committed plain error when it selected
Knight's sentence from within the wrong range and we will
vacate Knight's sentence and remand for sentencing so that
the District Court may apply the correct Guidelines range
in the first instance.1

I.

Knight's presentence investigation report contained a
recommended sentence based on the Guidelines. The report
concluded, inter alia, that Knight should be assigned to
Criminal History Category VI based on either (a) his total of
14 criminal history points or (b) his classification as a
"career offender". This criminal history category produced a
Guidelines sentencing range of 151 to 188 months. No
objection was raised to the PSI in court. At the sentencing
hearing, at which time sentence was rendered in
accordance with the Guideline range which all parties
believed to be correct, the District Court stated :"Due to
the nature and severity of the defendant's prior criminal
_________________________________________________________________

1. Our jurisdiction is pursuant to 28 U.S.C.S 1291 and 18 U.S.C.
S 3742(a)(2).

                                2
history, a sentence at the middle of the range is appropriate."2
The District Court sentenced Knight to 162 months of
imprisonment.

The government now concedes that Knight's criminal
history score was erroneously calculated as Category VI
because that classification included (a) offenses which
should properly have been excluded under U.S.S.G.
S 4A1.2(d)(2)(B)3 and (b) a finding of "career offender" which
was improperly premised on the inclusion of convictions for
possession with intent to deliver cocaine and reckless
endangerment, which are not includable.4 Because three of
the criminal history points attributed to Knight should not
have been, and because he should not have been classified
as a career offender, Knight should have been sentenced
based on Criminal History Category V, rather than Category
VI. Thus, the correct Guideline range for Knight was 140 to
175 months, rather than the range of 151 to 188 months
applied by the District Court.

II.

As we explained above, Knight's sentence was selected
from the wrong Guideline range, but it also falls within the
correct Guideline range. Upon review, we are required
under the Sentencing Reform Act of 1984, 18 U.S.C.
SS 3551 et seq. (the "Act"), to determine not only whether
the sentence "is outside the applicable guideline range" but
also whether it "was imposed as a result of an incorrect
application of the sentencing guidelines". 18 U.S.C.A.
S 3742(e)(2), (3). See Williams v. United States, 503 U.S.
_________________________________________________________________

2. See District Court's July 27, 1999 Judgement and Commitment Order
at 6. In addition, in sentencing Knight, the Court noted that "when a
judge is confronted with a history of criminal like this . . . [he is]
stuck
in the guidelines that have been placed on [defendant] . . . ." Appendix
at 64.

3. More specifically, the score included points for probationary sentence
offenses committed while Knight was under 18 years of age and which
occurred more than five years prior to the offenses for which Knight was
being sentenced.

4. Under a proper reading of U.S.S.G. S 4B1.2(3), neither of these
convictions should have been considered for career offender purposes.

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193, 202 (1992) (holding that "the reviewing court is obliged
to conduct two separate inquiries" corresponding to these
separate grounds for review). Even though a sentence falls
within the correct range, it nevertheless resulted from an
incorrect application of the Guidelines if it was chosen from
the incorrect range. See id. at 203 ("a sentence is imposed
`as a result of ' an incorrect application of the Guidelines
when the error results in the district court selecting a
sentence from the wrong guideline range"). In such a case,
remand for resentencing is mandated by the Act:"If the
court of appeals determines that the sentence was imposed
. . . as a result of an incorrect application of the sentencing
guidelines, the court shall remand the case for further
sentencing proceedings with such instructions as the court
considers appropriate." 18 U.S.C.A. S 3742(f)(1). See also
Williams, 503 U.S. at 202 ("First, was the sentence imposed
. . . as a result of an incorrect application of the
Guidelines? If so, a remand is required under S 3742(f)(1).").

Notwithstanding this mandatory and unconditional
statutory language, our sister Courts of Appeals have held
that where a defendant has failed to object to a purported
error before the sentencing court, our review on appeal is
only to ensure that plain error was not committed. See Fed.
Rule Crim. P. 52(b).5 Under this standard we must find that
(1) an error was committed, (2) the error was plain, i.e.,
clear or obvious, and (3) the error affected the defendant's
substantial rights. In addition, even where plain error
exists, our discretionary authority to order correction is to
be guided by whether the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings. See, e.g., United States v. Nappi , 243 F.3d
758, 732, 734 (3d Cir. 2001).6
_________________________________________________________________

5. But see United States v. Young, 981 F.2d 180, 190 n.1 (5th Cir. 1993)
(Justice, J., dissenting) (observing that "mandatory nature of the
Supreme Court's language in Williams would indicate" that the
contemporaneous objection rule does not apply "in a case involving
misapplication of the federal sentencing guidelines").

6. See generally Michael O'Shaughnessy, Appellate Review of Sentences,
88 Geo. L.J. 1637, 1643 (May 2000) ("If the defendant . . . fails to raise
an alleged sentencing error at sentencing . . . the claim will only be
reviewed on appeal for plain error. Even if the alleged sentencing error
is plain error, an appellate court may still affirm the sentence on the
ground that the error was harmless.") (citing cases).

                               4
There is no question that error was committed and that
it was plain because, under the Guidelines, Knight should
have been charged with three fewer criminal history points
and should not have been classified as a "career offender".
The Government concedes that the first two elements of our
plain error test are met, and further, that if we determine
that Knight's substantial rights were affected, it would not
be appropriate to argue that we should not exercise our
discretion to correct the error.7 Nonetheless, the
government contends that remand is unnecessary because
Knight cannot show that his sentence would have been
different had the sentencing range been properly calculated.
Thus, this appeal turns on whether application of an
incorrect guideline range resulting in a sentence that is also
within the correct range affects substantial rights. We hold
that it presumptively does.

Ordinarily, a defendant who failed to object to an error
before the trial court must demonstrate prejudice by
showing that the outcome -- in this context, the sentence
-- was affected, in the sense that it likely would have been
different but for the error. However, we have recognized
that in some circumstances, such prejudice may be
presumed. As we recently explained:

       Normally, in order for an error to "affect substantial
       rights" under the third prong of the [plain error] test,
       the error must have been "prejudicial"--in other words,
       "[i]t must have affected the outcome of the district
       court proceedings." It is the defendant who bears the
       burden of persuasion with respect to prejudice.
       However, the Supreme Court has cautioned that some
       errors to which no objection was made should be
_________________________________________________________________

7. The government's concession aside, we believe that a sentence
resulting from a plainly erroneous misapplication of the Guidelines gives
rise to at least a presumptively appropriate occasion for exercise of our
discretionary power to correct the error. Cf. United States v. Ford, 88
F.3d 1350, 1356 (4th Cir. 1996) ("sentencing a defendant at the wrong
guideline range seriously affects the fairness, integrity and public
reputation of the judicial proceedings."); United States v. Weaver, 161
F.3d 528, 530 (8th Cir. 1998) ("public's confidence in the judicial
process
would be undermined if an inadvertent . . . error were to be allowed to
influence the length of a criminal defendant's sentence").

                               5
       "presumed prejudicial" if the defendant cannot make a
       specific showing of prejudice.

United States v. Adams, 252 F.3d 276, 285 (3d Cir. 2001)
(citations omitted), quoting United States v. Olano, 507 U.S.
725 (1993).

Our determination in Adams that denial of a criminal
defendant's right of allocution is presumptively prejudicial
was predicated on two factors: First, allocution is supposed
to affect sentencing, as the defendant may be his own
"most persuasive and eloquent advocate" in a sentencing
hearing. Adams, 252 F.3d at 288. See also Adams, 252
F.3d at 288 ("the right of allocution `is designed to temper
punishment with mercy in appropriate cases, and to ensure
that sentencing reflects individualized circumstances' ")
(quoting United States v. Alba Pagan, 33 F.3d 125, 129 (1st
Cir. 1994)). Second, although allocution ought to have an
effect, "the impact of [its] omission on a . . . discretionary
[sentencing] decision is usually enormously difficult to
ascertain." Id. at 287 (quoting Alba Pagan, 33 F.3d at 130).

Both of these factors also support our recognition of
presumptive prejudice from application of the wrong
Guidelines range. First, it is beyond cavil that the
Guidelines are intended to, and do, affect sentencing.8
Indeed, that is their very raison d'etre. Second, absent a
fortuitous comment by the sentencing judge on the record,
it is very difficult to ascertain the impact of an erroneous
Guidelines range. We therefore conclude that an error in
application of the Guidelines that results in use of a higher
sentencing range should be presumed to affect the
defendant's substantial rights.

Although we have not previously had occasion to address
the element of prejudice where a sentence falls within both
_________________________________________________________________

8. See, e.g., United States v. Thayer , 201 F.3d 214, 230 (3d Cir. 1999)
(observing that although a sentencing court may"approach the
Guidelines with a `tentative view' of the sentence appropriate to the case
. . . [it] may also select a sentence based on its position within the
range
specified by the Guidelines"); United States v. Lavoie, 19 F.3d 1102,
1104 (6th Cir. 1994) (observing that "a district court's sentencing
determination is impacted by its understanding of the appropriate
guideline range").

                               6
the correct and incorrect Guidelines ranges, our holding
today is in keeping with our prior cases that have
recognized the potentially prejudicial nature of Guideline
calculation errors. See United States v. Pollen , 978 F.2d 78,
90 (3d Cir. 1992) ("The district court's improper calculation
. . . , resulting in a significantly higher Guideline
sentencing range, certainly is an error that seriously
affected [defendant]'s substantial rights and so amounts to
plain error."); United States v. Felton, 55 F.3d 861, 869 n.3
(3d Cir. 1995) ("This circuit and others have found that the
miscalculation of a defendant's offense level `certainly is
error that seriously affect[s] the defendant's rights, and so
amounts to plain error.' ") (quoting Pollen, 978 F.2d at 90).9

The practical effect of the presumption we recognize
today is that a sentence based upon a plainly erroneous
Guideline range will ordinarily be remanded so that the
District Court may exercise its discretion to choose an
appropriate sentence based upon the correct range, unless
the record shows that the sentence was unaffected by the
error. This approach effectuates the intent of the Act that
"it [be] the prerogative of the district court, not the court of
appeals, to determine, in the first instance, the sentence
that should be imposed in light of certain factors properly
considered under the Guidelines." Williams , 503 U.S. at
205. We applied similiar reasoning in the plain error
context in Pollen, wherein we "decline[d] to engage in the
type of speculation urged by the government concerning
whether the district court would have [imposed the same
sentence] under a properly calculated Guideline sentence
range", noting that such speculation "is inappropriate" in
light of the inherently discretionary nature of the
sentencing court's decision. Pollen, 978 F.2d at 89-90.

In Pollen we considered remand necessary despite the
government's assertion that the district court had
_________________________________________________________________

9. Although the errors at issue in Pollen and Felton involved
miscalculation of the offense level rather than of the criminal history,
we
can see no reason to treat one type of misapplication of the Guidelines
differently from another. Choosing a sentence from the wrong range has
the same propensity to affect a defendant's substantial right to receive a
fair sentence no matter what the source or nature of the error.

                               7
"intimated" that it would have imposed the same sentence
under a lower Guideline range. 978 F.2d at 89-90. In the
present case, the District Court did not intimate that the
sentence would have been the same if the correct range
were applied. On the contrary, the Court stated that it was
selecting a sentence "at the middle of the range", and that
its decision was predicated on the defendant's incorrectly
assessed prior criminal history. Under these circumstances,
even if we were inclined to disregard our admonition in
Pollen not to speculate, we would be unable to conclude
that it is even reasonably likely that the same sentence
would have been imposed if the correct range and history
were considered. Because the record does not permit us to
find that the same sentence would have been imposed, we
hold that Knight was prejudiced by the incorrect
application of the Guidelines, and we therefore remand to
allow the District Court to impose a sentence based upon
a correct application of the Guidelines.

Our holding today is in accord with decisions of several
of our sister Courts of Appeals, which effectively (albeit not
explicitly) apply a similar presumption. For example, the
Seventh Circuit has held:

       Because it . . . sentenced [defendant] on the basis of
       the wrong Guidelines range, the district court
       committed plain error. . . . . Although the sentence that
       the district court selected in this case is within the
       correct as well as the incorrect Guidelines range, we
       must remand unless we have reason to believe that the
       error did not affect the district court's selection of a
       particular sentence.

United States v. Wallace, 32 F.3d 1171, 1174-75 (7th Cir.
1994). Similarly, the Sixth Circuit has explained that:

       If the range the court used resulted from an incorrect
       application of the guidelines, an after-the-fact
       determination that the sentence actually imposed
       happened to be within the proper range does not cure
       the court's error. The actual sentence imposed in such
       a case is not material because it is the district court's
       application of the guidelines to arrive at the sentencing
       range that is at issue, not that court's discretionary
       choice of sentence within that range.

                               8
United States v. Lavoie, 19 F.3d 1102, 1104 (6th Cir. 1994).
See also, e.g., United States v. Plaza-Garcia, 914 F.2d 345,
347-48 (1st Cir. 1990) (remanding sentence within both
erroneously applied and correct Guideline ranges under
plain error doctrine, because sentence "may well have been
influenced by the [erroneous] sentencing recommendation");
United States v. Martinez-Rios, 143 F.3d 662 (2d Cir. 1998)
(although it was unclear whether correcting error would
have any effect on sentencing level, remand was required
under plain error analysis);10United States v. Ford, 88 F.3d
1350, 1356 (4th Cir. 1996) (holding, where court
miscalculated criminal history points, that "[t]he error
clearly affected [defendant]'s substantial rights because the
extra points caused [defendant] to be sentenced at a more
severe guideline range"); United States v. Spears, 159 F.3d
1081, 1088 (7th Cir. 1998) (remanding where juvenile
offenses were wrongly included, resulting in wrong criminal
history category: "The district court looked at the wrong
sentencing range when determining [defendant]'s sentence.
We have determined this to constitute plain error."); United
States v. Robinson, 20 F.3d 270, 273 (7th Cir. 1994) ("A
sentence based on an incorrect guideline range constitutes
an error affecting substantial rights and can thus
constitute plain error."); United States v. Weaver, 161 F.3d
528, 530 (8th Cir. 1998) (rejecting government's assertion
that "error did not affect [defendant's] substantial rights
because . . . sentence he received fell within the Guidelines
range . . . which would have applied absent the error");11
_________________________________________________________________

10. The Second Circuit expressly rejected the government's reliance on
United States v. Bermingham, 855 F.2d 925 (2d Cir. 1988) for the
proposition that the "sentence [could] be sustained because the sentence
actually imposed . . . was within the Guidelines ranges for both [the
correct and incorrect levels]." 143 F.3d at 675. The Court noted that
"Bermingham permits this Court to affirm a sentence derived from an
incorrect offense level only where the sentence also falls within the
sentencing range for the correct offense level, and the District Court has
indicated that it would have imposed the same sentence under either
offense level." Id. at 676 (emphasis in original). In contrast, the record
here "suggest[ed]" that the District Court would have imposed a lesser
sentence. Id.

11. In Weaver, the Eighth Circuit noted the District Court's indication at
sentencing that it would sentence the defendant"at the bottom" of the

                               9
United States v. Osuna, 189 F.3d 1289, 1295 (10th Cir.
1999) (holding where correction of error "alters[defendant]'s
sentence range from 51-63 months to 46-57 months . .. .
[t]he fact that the guideline ranges overlap does not make
a plain error harmless.").

We recognize that other courts have found that
sentencing errors do not affect a substantial right where,
because the sentence fell within both the right and the
wrong range, the same sentence could have been imposed
without error. See, e.g. United States v. Leonard, 157 F.3d
343 (5th Cir. 1998) (upholding sentence imposed where it
could be reinstated on remand). We believe that these cases
provide too little protection for the substantial right at
issue, and that the rule which we follow today better
effectuates the Guidelines' purpose to institute fair and
uniform sentencing.12 A defendant has a right to a sentence
that not only falls within a legally permissible range, but
that was imposed pursuant to correctly applied law. 13 See
United States v. Urrego-Linares, 879 F.23 1234, 12390 (4th
Cir. 1989) (observing that defendant is entitled to have "his
sentence determined in accordance with the applicable
_________________________________________________________________

applicable range, and observed that because "the court might well have
sentenced [defendant] to a lesser term . . . under the range that [should]
have been applied", it was "unwilling to say that [defendant]'s
substantial
rights were not affected". 161 F.3d at 530 (citing with approval United
States v. Wallace, 32 F.3d 1171, 1174-75 (7th Cir. 1994)).
12. See S. Report 86, U.S. Code Cong. & Admin. News 1984, p. 3269
("The provisions for appellate judicial review of sentences in section
3742
are designed to reduce materially any remaining unwarranted disparities
by giving the right to appeal a sentence outside the guidelines and by
providing a mechanism to assure that sentences inside the guidelines are
based on correct application of the guidelines.") (emphasis added). See
also, e.g., United States v. Knobloch, 131 F.3d 366, 373 (3d Cir. 1997)
(recognizing that "the Guidelines were designed to promote fair and
consistent treatment of offenders"); United States v. Lavoie, 19 F.3d
1102, 1103 (6th Cir. 1994) (noting that "appellate review of sentences is
intended to further the Sentencing Reform Act of 1984's primary goal of
insuring correct application of the guidelines").

13. The Act recognizes these distinct rights in providing separately for
correction of sentences "outside the applicable guideline range" and
sentences "imposed as a result of an incorrect application of the
sentencing guidelines". 18 U.S.C.A. S 3742(e)(2), (3).

                               10
law") (citing Townsend v. Burke, 334 U.S. 736 (1948)).
Because imposition of a sentence selected from the wrong
range is likely to impair a defendant's right to a fair
sentence, we believe it is appropriate under plain error
analysis to remand for sentencing under the correct range
notwithstanding a defendant's inability to establish that his
separate right to receive a sentence within the applicable
guideline range was also impaired.

III.

For the foregoing reasons, we   will vacate the District
Court's judgment and order of   sentence and remand with
instructions for the District   Court to resentence Knight
within the correct Guidelines   range.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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