Panel rejects invited-error doctrine; refused to shield a sentence-in-advance

United States v. Moore, 2022 WL 1087336 (10th Cir., April 12, 2022) (KS): At sentencing, Moore requested a sentence of time served and three years supervised release. The government asked for a 51 month prison term. The district court offered Moore a choice, 48 months of probation, subject to at least 84 months of imprisonment if he violated any terms of his probation or 51 months imprisonment immediately. Moore chose the former. Ten months after the sentence was imposed Moore violated travel and housing conditions of his probation. These were grade C violations with a recommended imprisonment range of 5-11 months. The district court instead imposed a prison term of 84 months. On appeal Moore argued that sentence was procedurally and substantively unreasonable. The panel agreed. The panel rejected the government’s suggestion that Moore had invited the error. It said that doing so would “shield from our review even a sentence-in-advance sentence all the way up to the statutory maximum.” It wasn’t willing to let that happen. The panel then reviewed Moore’s challenge to the court’s sentencing procedure for plain error. It held Moore proved the district court’s “sentence-in-advance system” satisfied all four prongs of the plain error test. According to Supreme Court and circuit precedent, a district court is supposed to start with the facts, calculate the advisory guideline range and then decide whether a variance is warranted to ensure a just sentence. The court here plainly erred because it set a minimum future sentence without engaging in an analysis that becomes pertinent only after probation is revoked. In other words, the court could not have known when it sentenced Moore originally whether his future conduct categorically would justify at least a 33 month consecutive prison term to its offered 51 month sentence. Consequently, its sentencing procedure was unreasonable. After this, the opinion is confounding and fraught. The panel, in essence described the procedure that should be followed when a court revokes probation. First it analyzed 18 U.S.C. § 3565(a)(1-2). If a court decides that an individual has violated a term of probation, it then, with the 18 U.S.C. § 3553(a)’s factors in mind, must choose between (1) continuing the person on probation with or without modifying conditions or (2) revoking probation and re-sentencing the person. Because the court here revoked Moore’s probation, it was required by § 3565(a)(2) to “resentence” Moore. That meant reevaluating the case as it stood when the court imposed probation. According to § 3553(a)(4)(A), the court had to look at the probation officer’s recommendation, the parties’ objections, the § 3553(a) factors, including the person’s history, characteristics and pre-probation sentencing conduct. This is necessary, the panel said, because the Guidelines in Chapter Seven tell the court if it revokes probation it may “impose any other sentence that initially could have been imposed.” (emphasis in original). The panel then stepped back to the district court’s analysis at the initial sentencing. There the court said a 51 month imprisonment term was appropriate and thus it was one that “could initially have been imposed.” Next, the panel reviewed the policy statements in the Guidelines’ Chapter 7, which it said the district court “must apply.” The district court also must consider “the § 7B1.4 sentencing grid for the probation violation – not the sentence guidelines for the underlying offense.” (emphasis in original). The panel claims that this necessary “two-step” approach to sentencing when probation is revoked is derived from United States v. Kelley, 359 F.3d 1302, 1306 (10th Cir. 2004). But Kelly rejected this approach. There, relying on a Ninth Circuit decision the accused said the district court must consider the guideline range applicable to his underlying offense before the court sentenced him after ordering his supervised release revoked. The Kelly panel said § 3553(a)(4)(A) has no application in a supervised release revocation hearing, instead, the relevant sentencing analysis is girded by the Chapter 7 policy statements referenced in § 3553(a)(4)(B). It noted that the congressional record supported its decision: In § 3553(a)(4)(B), “Congress clearly intended that these guidelines or policy statements rather than those applicable at sentencing, be used by courts when sanctioning probation (or supervised release) violators.” You might be thinking, so what’s the hub-bub, bub? Well, if the court can go back to the original sentencing and the imprisonment range which it forwent in exchange for probation (or a much lower prison term), then arguably it can use that “sentence that initially could have been imposed” to justify a variance well above the recommended imprisonment range from Chapter 7. Moore seems to invite such a procedure. The panel explained that the district court plainly erred because it didn’t explain why an 84 month prison term was appropriate under § 3553(a) and Chapter 7. Its questions at the end of the opinion offer an outline by which the district court can make that prison term procedurally and substantively reasonable. Judge Bacharach dissented. In his opinion Moore invited the sentencing terms imposed to avoid prison. Moore knew the risks because the district court emphasized them repeatedly. And so did his attorney. Because Moore agreed each time to the sentencing terms, he knowingly invited any potential error which vitiated any challenge on appeal. For these same reasons, the sentencing procedure did not seriously affect the fairness or public reputation of the proceedings.