A Northern Indiana District Court judge who sentenced a defendant to the maximum will have to go back for a do-over after the 7th Circuit Court of Appeals vacated the prison term because of procedural errors that could not be deemed harmless.
Darrell Loving pleaded guilty to drug crimes after law enforcement found 271 grams of cocaine and 56 grams of heroin in his car. The presentence investigation report proposed setting Loving’s offense level at 24 because of the drug quantity.
Also, the report recommended a two-level enhancement because after being stopped initially, Loving sped away, dragging an Indiana State Police trooper for several feet. However, this was offset by a two-level reduction because Loving accepted responsibility.
The report recommended a total offense level of 24 and a criminal history category of II, yielding an advisory guideline range of 57 to 71 months in prison.
The government then noted two guideline issues in its sentencing memorandum. First, it argued that Loving should receive credit for accepting responsibility, which would lower his offense level and his advisory range to 51 to 63 months. Loving agreed on that point.
Second, the government urged the court to sentence Loving above that lower guideline range as if he had had earned another offense level. Loving opposed the extra offense level.
The district court adopted the findings from the PSR but did so without addressing or adopting the parties’ agreement that Loving should receive the lower level for taking responsibility. In sentencing the defendant to the maximum 71 months, Senior Judge James Moody told Loving that his crimes were “deserving of no less than a guideline sentence,” and that the appropriate sentence was 71 months.
However, the 7th Circuit vacated Loving’s sentence and remanded for resentencing, in part because Moody’s comments indicated he relied on a calculation error when determining the defendant’s prison term.
The appellate panel agreed with Loving that the district court made procedural errors in calculating a total offense level of 24. Although the absence of an explanation from the lower court as to its rationale could be enough for a remand, the 7th Circuit asserted it was ordering a resentencing because both potential paths the district court followed to get the offense level contained procedural errors.
If the district court had adopted the calculations from the presentencing report, the 7th Circuit pointed out, then it erred by failing to explain why it declined to apply the further one-level reduction for acceptance of responsibility to which the parties had agreed under U.S.S.G. § 3E1.1(b).
On the other hand, if the district court accepted the calculation from the government’s call for a one-level increase of Loving’s offense level, then the lower court improperly used one of the departure provisions of the Sentencing Guidelines to calculate Loving’s advisory range.
Specifically, the problem was that the district court used the relevant departure provision — application note 6 of U.S.S.G. § 3C1.2 — and applied it at the wrong step of the sentencing process. The lower court could have considered the provision at step two of the sentencing process and used it to explain an upward variance from the guideline range. Here, however, the Northern Indiana court relied on this provision at step one to anchor Loving’s advisory guideline range to 57 to 71 months.
The 7th Circuit held it could not deem harmless the apparent confusion between guideline range and upward departure.
“First, at sentencing, the district court said three times that Loving deserved a sentence within the guideline range. Those statements are strong evidence that the erroneously calculated guideline range influenced the court’s chosen sentence,” Judge David Hamilton wrote, referring to Molina-Martinez v. United States, 758 U.S. 189, 199 (2016). “Second, as explained above, each of the two possible paths toward calculating the total offense level as 24 included an error. Finally, we cannot infer, based on the district court’s terse comments about the sentencing factors under 18 U.S.C. § 3553(a) that the court believed a 71-month prison sentence would be appropriate regardless of the correct guideline range.”
The case is United States of America v. Darrell A. Loving, 21-1382.