United States v. Darrell Loving ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1382
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARRELL A. LOVING,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:20-cr-00010-JTM-APR-1 — James T. Moody, Judge.
____________________
ARGUED DECEMBER 14, 2021 — DECIDED JANUARY 3, 2022
____________________
Before SYKES, Chief Judge, and HAMILTON and ST. EVE, Cir-
cuit Judges.
HAMILTON, Circuit Judge. Appellant Darrell Loving pled
guilty to drug crimes and was sentenced to 71 months in
prison, the top of the Sentencing Guideline range as found by
the district court. On appeal Loving contends that the district
court erred in calculating his guideline range. He argues that
the court did not explain how it calculated the total offense
level and that, regardless of the explanation, the court made
2 No. 21-1382
two guideline errors: disregarding the parties’ agreement for
an additional one-level reduction in the offense level for
timely acceptance of responsibility, and misusing a departure
provision of the Sentencing Guidelines to determine the cal-
culated range rather than as a basis for an upward departure
or variance. Loving’s arguments are correct, and the record
does not allow us to treat the errors as harmless. We vacate
Loving’s sentence and remand for resentencing.
I. Factual and Procedural Background
When an Indiana State Police trooper stopped Loving for
speeding in 2019, he had heroin and cocaine in his car. The
trooper asked Loving if he had marijuana on him. Loving
sped away, dragging the trooper several feet. As Loving con-
tinued to flee, he also drove at high speed through the scene
of a recent car accident, endangering other officers and first-
responders. Officers eventually caught up with Loving and
arrested him. They found 271 grams of cocaine and 56 grams
of heroin. Loving pled guilty to possessing cocaine and heroin
with intent to distribute them in violation of 21 U.S.C.
§ 841(a)(1).
In addressing the Sentencing Guidelines, the presentence
investigation report proposed setting Loving’s offense level at
24 based on the drug quantity. U.S.S.G. § 2D1.1(a)(5). With a
two-level enhancement for reckless endangerment during
flight, see § 3C1.2, offset by a two-level reduction for accept-
ing responsibility, § 3E1.1(a), the PSR proposed 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 pressed two guideline issues in its
sentencing memorandum. First, it argued that Loving
No. 21-1382 3
“should receive the third point of acceptance of responsibil-
ity,” see U.S.S.G. § 3E1.1(b), lowering his offense level to 23
and his advisory range to 51 to 63 months. Loving agreed on
that point. Second, the government urged the court to sen-
tence Loving above that lower guideline range, as if he had
earned another offense level:
From this [51 to 63-month] range, the govern-
ment is seeking a one-level upward departure,
pursuant to Guidelines Section 3C1.2, applica-
tion note 6, for substantial risk of death or bod-
ily injury to more than one person during reck-
less endangerment during flight. This one-level
upward departure results in the equivalent of a
range of 57 to 71 months.
Loving opposed that extra offense level, whether as an up-
ward departure or as an extra level added to the calculated
range.
The district court adopted the findings from the PSR, but
it did so without addressing, let alone adopting, the parties’
agreement that Loving should receive the third level for ac-
ceptance of responsibility and that his calculated guideline
range should be based on a total offense of level of 23. The
court found that Loving’s total offense level was 24, that his
criminal history category was II, and that his advisory guide-
line imprisonment range was 57 to 71 months. Loving ob-
jected to “the increase under 3C1.2, the upward variance tak-
ing it to 24.” In response, the government presented testi-
mony that Loving’s flight through the scene of the car acci-
dent had endangered bystanders, establishing what the gov-
ernment called “the factual basis for a one-level upward vari-
ance” under application note 6 of U.S.S.G. § 3C1.2.
4 No. 21-1382
The court overruled Loving’s objection and kept the calcu-
lated guideline range at 57 to 71 months:
[D]efendant’s objection is not well taken; there-
fore, it is overruled. My findings stay in place,
and I will repeat them. The defendant’s total of-
fense level is 24. His criminal history category is
2. That makes his advisory guidelines imprison-
ment range 57 to 71 months.
After the court announced its guideline findings, Loving
asked for a sentence of 48 to 54 months. The government rec-
ommended 71 months, arguing that “even if an appellate
court thought that [Loving] shouldn’t have gotten the one-
point enhancement, just the 3553(a) factors … would warrant
the 71 months sentence.”
The district court sentenced Loving to 71 months in
prison. The court said three times that the case called for a
sentence within the applicable guideline range. The court said
that Loving showed no mitigating circumstances that “war-
rant a sentence below the applicable advisory” range, that his
crimes were “deserving of no less than a guideline sentence,”
and that the appropriate sentence was “71 months … which
is within the applicable guidelines sentencing range.” The
court also said that the statutory sentencing factors under
18 U.S.C. § 3553(a) justified a within-guideline sentence:
[T]his sentence of imprisonment is imposed for
the following reasons: It reflects the seriousness
of the crimes of conviction. It promotes respect
for the law. It provides just punishment for the
crimes of conviction. It is sufficient but not
greater than necessary to hold the defendant
No. 21-1382 5
accountable for his criminal conduct. It takes
into account the circumstances and the nature of
the crimes of conviction and the background,
history, and the personal characteristics of the
defendant. It provides the defendant with cor-
rectional treatment in the most effective man-
ner. It affords adequate deterrence to this type
of criminal conduct. It protects the public from
further crimes of this type by the defendant, and
it avoids unwarranted sentence disparities
among defendants.
The court issued a written judgment and Statement of Rea-
sons the same day. In the Statement of Reasons, the district
court checked a box indicating that it had adopted the guide-
line calculations in the PSR without change.
II. Analysis
On appeal, Loving argues that the district court made two
procedural errors that affected his guideline range. First, the
PSR’s calculated range (57 to 71 months) did not reflect the
parties’ later agreement that Loving’s offense level should be
reduced to 23, so that his guideline range would drop to 51 to
63 months. Second, the district court treated the government’s
request for “departing” from this 51- to 63-month range as if
his actual, calculated guideline range were 57 to 71 months.
In doing so, Loving contends, the court mistakenly enhanced
his offense level based on application note 6 of U.S.S.G.
§ 3C1.2, which suggests consideration of a “departure” rather
than a change in the calculated guideline range itself.
6 No. 21-1382
A. Standard of Review
Before delving into the merits of these arguments, we ad-
dress two matters concerning the standard of review. First,
the government contends that Loving “invited”—and thus
waived—the errors he asserts on appeal by accepting the gov-
ernment’s view that the correct guideline calculation de-
pended on whether note 6 of U.S.S.G. § 3C1.2 applied here.
We disagree. The sentencing transcript shows that Loving ob-
jected explicitly “to the increase under 3C1.2, the upward var-
iance taking it to 24.” Loving is not challenging on appeal any
choice he urged the district court to make. There was no in-
vited error here.
The government also argues that even if Loving did not
invite the error, he forfeited his arguments by failing to raise
them in the district court. Again we disagree. Loving clearly
preserved his challenge to the guideline range. In his filings
before the sentencing hearing, he argued for an offense level
of 23 and a sentencing range of 51 to 63 months, as he does on
appeal. At the hearing, he objected to the court’s use of offense
level 24. These arguments preserved an objection to a higher
offense level and sentencing range. Loving was not required
to take a later “exception” to the court’s actions after its deci-
sion. See United States v. Pennington, 908 F.3d 234, 238 (7th Cir.
2018). “[T]he Rules of Evidence and the Rules of Criminal Pro-
cedure require a litigant to make known the position it advo-
cates and to present evidence and argument for that posi-
tion,” but they “do not require a litigant to complain about a
judicial choice after it has been made.” United States v. Bartlett,
567 F.3d 901, 910 (7th Cir. 2009); see Fed. R. Crim. P. 51.
No. 21-1382 7
B. The Guideline Issues
Turning to the merits, we agree with Loving that the dis-
trict court made procedural errors in calculating a total of-
fense level of 24. First, the court did not explain why it
adopted this total offense level. District courts must calculate
a defendant’s total offense level in a manner that allows ap-
pellate review of the reasoning. United States v. Titus, 821 F.3d
930, 933–34 (7th Cir. 2016), citing United States v. Bokhari, 430
F.3d 861, 863–64 (7th Cir. 2005). The sentencing transcript here
does not show which of two possible paths the court followed
in reaching offense level 24. The court could have adopted a
total offense level of 24 from the PSR despite the parties’
agreement to reduce it by one level based on timely ac-
ceptance of responsibility. Or the court could have reduced
the PSR’s calculation by one level in light of the parties’ agree-
ment on the third acceptance level, but then accepted the gov-
ernment’s reliance on § 3C1.2, application note 6, to add a
level to the guideline calculation rather than use an upward
departure. The court’s explanation at sentencing could be
read as indicating that both occurred, but that would have
been internally inconsistent. Adopting both the calculations
in the PSR and the government’s argument for an extra level
under the application note would have resulted in an offense
level of 25, not 24:
o Base offense level 24
o Reckless endangerment +2
enhancement, § 3C1.2
o Acceptance of -2
responsibility, § 3E1.1
8 No. 21-1382
o Enhancement for +1
endangering multiple
people, § 3C1.2, appl. n.6
Total offense level 25
This absence of an explicit rationale for the total offense level
could itself be ground for remand. When the record “lacks
sufficient clarity for this court to determine … the district
court’s methodology and final determinations pertaining to
total offense level,” remand may be needed for the district
court to make explicit its calculations. Titus, 821 F.3d at 934–
35 (remanding for resentencing where district court did not
make explicit the factual findings that led to the total offense
level) (internal citation omitted). In this case, however, re-
mand is not based only on the absence of an explanation. Both
possible rationales were erroneous for other reasons.
First, if the court adopted the calculations from the PSR,
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). In its
current form, § 3E1.1 allows for a reduction of as much as
three levels in the total offense level based on the defendant’s
acceptance of responsibility. Section 3E1.1(a) provides for a
two-level reduction. A third level is available if the offense
level before applying § 3E1.1(a) is 16 or greater and if the gov-
ernment makes a motion to apply the third level. Loving ar-
gues that the court must grant the third-level reduction upon
the government’s motion, citing United States v. Mount, 675
F.3d 1052, 1057 (7th Cir. 2012). After we decided Mount, how-
ever, the Sentencing Commission amended the commentary
to § 3E1.1 to clarify that the district court has the authority to
No. 21-1382 9
deny a government motion for a third level. U.S.S.G. App. C.,
Amend. 775 (Nov. 1, 2013), discussed in United States v. Var-
gas, 961 F.3d 566, 580 (2d Cir. 2020). Amendment 775 added a
paragraph to Note 6 to § 3E1.1 using the phrase “the court in
deciding whether to grant the motion.…” The Sentencing
Commission’s explanation of the amendment discussed the
conflict between our decision in Mount and United States v.
Williamson, 598 F.3d 227, 230 (5th Cir. 2010), and explained
that the amendment was intended to resolve the conflict
against the Mount position by endorsing a sentencing court’s
discretion to deny such a motion.
That amendment to the commentary effectively super-
seded our holding in Mount that the third level is mandatory
upon the government’s proper motion. The problem here is
that the district court denied the government’s motion with-
out giving any explanation. Even under Amendment 775, it is
clear that a sentencing court must explain a denial of such a
motion by the government. See Vargas, 961 F.3d at 584. That
did not happen here.
Second, and on the other hand, if the court accepted the
calculation from the government’s sentencing memorandum,
where it urged a one-level increase to Loving’s offense level
based on application note 6 of § 3C1.2, the decision runs into
a different error: In that event, the court improperly used one
of the departure provisions of the Sentencing Guidelines to
calculate Loving’s advisory range. Since the Guidelines were
deemed advisory in United States v. Booker, 543 U.S. 220 (2005),
we have often said that sentencing courts are no longer re-
quired to engage in traditional departure analysis. E.g., United
States v. Pankow, 884 F.3d 785, 793–94 (7th Cir. 2018); United
States v. Brown, 732 F.3d 781, 786 (7th Cir. 2013). That does not
10 No. 21-1382
mean, however, that departure provisions are entirely obso-
lete. Departure provisions have always played an integral role
in the advisory guideline sentencing system. E.g., Pankow, 884
F.3d at 793 (“we have emphasized that ‘district courts can still
take guidance from the departure provisions … and apply
them by way of analogy when assessing the § 3553(a) fac-
tors’”), citing Brown, 732 F.3d at 786.
But even after Booker, the first step in the sentencing pro-
cess has remained correct calculation of the applicable guide-
line range. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904
(2018); see U.S.S.G. § 1B1.1(a) (providing application instruc-
tions for Sentencing Guidelines). It is not until the second
step, which is optional, that the court may consider the advice
in the Sentencing Guidelines about potential departures.
U.S.S.G. § 1B1.1(b). Finally, at step three, the court must con-
sider the sentencing factors listed under 18 U.S.C. § 3553(a)
and determine, in light of those factors, whether to accept or
reject the advice of the Guidelines. U.S.S.G. § 1B1.1(c); Peugh
v. United States, 569 U.S. 530, 536 (2013).
The problem with the district court’s use here of the rele-
vant departure provision—application note 6 of U.S.S.G.
§ 3C1.2—is that the court seems to have applied it at the
wrong step of the sentencing process. Nothing prohibited the
court from considering the provision—which suggests an up-
ward departure may be appropriate if the defendant endan-
gered multiple people during flight—at step two of the sen-
tencing process, and using it to explain an upward variance
from the guideline range. See United States v. Ramirez, 983 F.3d
959, 962 (7th Cir. 2020) (affirming sentence where court relied
on U.S.S.G. § 3C1.2, application note 6, to vary from correct
guideline range). In this case, however, the district court
No. 21-1382 11
relied on this provision at step one of the sentencing process
to increase Loving’s calculated offense level and to anchor his
advisory guideline range to “57 to 71 months.” This was a pro-
cedural error.
To be sure, the difference between adding one offense
level in calculating the guideline range and applying an up-
ward departure equivalent to one offense level might seem
hypertechnical to some. That difference could easily be
deemed harmless if the district court had acknowledged the
difference and had indicated clearly that it would have no ef-
fect on the final sentence imposed. See United States v. Hines-
Flagg, 789 F.3d 751, 757 (7th Cir. 2015) (error in guideline cal-
culation not shown to be harmless). Under either approach,
the Sentencing Guidelines as a whole would point toward the
same effective range for a prison sentence. In this case, how-
ever, we simply cannot deem harmless the apparent confu-
sion 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 calcu-
lated guideline range influenced the court’s chosen sentence.
See Molina-Martinez v. United States, 758 U.S. 189, 199 (2016)
(explaining that if a court explains the chosen sentence rela-
tive to the sentencing range, “then the Guidelines are in a real
sense the basis for the sentence”) (emphasis in original). Second,
as explained above, each of the two possible paths toward cal-
culating 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 appro-
priate regardless of the correct guideline range.
12 No. 21-1382
We express no opinion about whether 71 months in prison
is an appropriate sentence for Loving. The PSR shows that he
endangered multiple people during his flight, first by drag-
ging an officer as he drove away and then by driving through
the scene of a recent car accident. On remand, after consider-
ing the government’s motion for the third level of an ac-
ceptance-of-responsibility reduction and calculating Loving’s
correct guideline range, the district court may consider a pos-
sible upward departure or variance and must consider the fac-
tors under 18 U.S.C. § 3553(a). Both paths allow consideration
of the circumstances of Loving’s offenses and his attempted
flight, as long as the path of the court’s reasoning is clear.
Loving’s sentence is VACATED and the case is
REMANDED for resentencing.