Plain error at sentencing results in defense win

United States v. Farley, ___F.4th___, No. 21-8013 (10th Cir. June 15, 2022) (sentencing: incorrect guidelines calculation is plain error requiring reversal) The Government and Mr. Farley negotiated a plea with stipulated sentence of between 20 and 40 years (for three counts manufacturing kiddie porn) (240-480 months). The PSR puts Mr. Farley’s guideline range as 1080 months. The district court was unhappy with the stipulated sentence and said it wasn’t going to abide by it. Mr. Farley still pleads guilty to the three counts. The Court sentences him 630 months (52 ½ years). In making this calculation the Court said it would have to vary 9-10 levels to get to 40 years (480 months) but only 6 levels to get to the 630 months. The district court's reasoning is not set forth The Tenth Circuit points out that, in fact, the district court would only have to vary one level down – from 43 to 42 – to get a sentencing range of 360 months to life for Mr. Farley’s Category II criminal history. The Court agrees this is plain error because “it is unambiguously contradicted by the guidelines table.” The first two hurdles of plain error review; but Mr. Farley must still prove it affected his substantial rights and seriously affects the fairness, integrity, or public reputation of judicial proceedings. Mr. Farley succeeds. The trial court relied upon three main ideas in coming to its sentence: “(1) it wanted to vary downward at least some degree from the PSR-recommended 1080 months’ sentence due to Mr. Farley’s mitigating factors, (2) it wanted to run the sentences consecutively so as to respect each individual victim and the seriousness of the offenses, and (3) it did not want to vary down more than six offense levels.” Because the court expressly relied on its idea that it did not want to vary more six levels, the Tenth Circuit concedes that the “error was integral in the district court’s reasoning and acted as a limiting factor in how low it was willing to go.” Relying on Rosales-Mireles v. United States, 138 S.Ct. 1897, 1908 (2018), the Court held a court’s excusal of “obvious errors ... that threaten to require individuals to linger longer in federal prison than the law demands” is likely to diminish the public’s “view of the judicial process and its integrity.”