Incorrect Sentencing Calculation Was Plain Error Even Though Sentencing Court Varied Based on Policy Disagreement with Reentry Guideline

U.S. v. Rosales-Miranda, 2014 WL 3033419 (decided 6/17/14, published at the request of the defense, 7/7/14) - A good case for the 3rd and 4th prongs of the plain error analysis in a sentencing context. Both parties agreed the district court committed plain error when it imposed a 16-level enhancement under § 2L1.2 based on misdemeanor domestic violence convictions. The court varied downward from a guideline range of 70 to 87 months to 36 months based on its policy disagreements with USSG § 2L1.2's double-counting of convictions and its lack of an empirical basis. There was a reasonable probability the error significantly affected the sentence. The range without the error would have been 30-37 or 33-41 months. The 10th noted the error more than doubled the guideline range, which the 10th stressed must be the starting point for any sentencing. The incorrect range then exerted its force on the judge, even though the ultimate sentence was within the correct range. And the policy reasons the court gave for varying downward from the wrong range would justify varying downward from the correct range. The 8-level bump for Mr. R-M's aggravated felony would warrant a complaint about double-counting. The 10th held that, although U.S. v. Hoskins, 654 F.3d 1086, 1099 (10th Cir. 2011), might dictate a different 3rd- prong determination, earlier precedent, which controls in a precedent-conflict situation, allowed for reversal even if the ultimate sentence fell within the correct range. The government was wrong to say the district court so hated the § 2L1.2 guidelines it would have ignored the correct range. The 4th-fairness-integrity-public-reputation prong was met because the court made a "patent, egregious" calculation error and there was a strong possibility the error had made a significant difference in the sentence imposed. Sentence reversed.