Sentencing Plain Error Recognized Where Guidelines Improperly Calculated

US v. Johnson, 2005 WL 1649224, 10th Cir.(Kan.), Jul 14, 2005: The COA remands for resentencing, finding that the defendant had demonstrated plain error. Defendant was convicted of various drug conspiracy charges. The COA found two errors: an incorrect calculation of the guidelines and enhancement based on judicially found facts. When calculating his guidelines sentencing range, two criminal history points were included based on the probation officer's mistaken belief that Mr. Johnson was on parole when he began participating in the conspiracy. Actually, his parole had ended a year earlier. Thus, there was error in calculating the guidelines and Mr. Johnson should have been in a lower criminal history category. Additionally, there was Booker error because Mr. Johnson had received an enhancement for use of a firearm. The enhancement was not found by a jury nor admitted by the defendant, and resulted in a sentence that exceeded the sentence authorized by the jury verdict alone. The third prong of plain error review was satisfied because the COA affirmed that an incorrect application of the guidelines is a fundamental error affecting substantial rights. The fourth prong was satisfied because the government asked for life imprisonment and instead sentenced the defendant to the bottom of the applicable guideline range, 360 months. Although the sentencing court's statements indicated "rough satisfaction" with the sentence, remand was appropriate because the substantial increase in the defendant's sentencing range as a result of the error and the doctrine of applying fourth prong analysis less rigidly in the case of constitutional error weighed in recognizing the error.