UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5128
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HARRY EDMUND LESHEN, a/k/a Harry E. Leshen, II,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (4:08-cr-00053-RBS-TEM-1)
Argued: March 26, 2010 Decided: November 10, 2011
Before MICHAEL 1 and DAVIS, Circuit Judges, and Eugene E. SILER,
Jr., Senior Circuit Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Richard Daniel Cooke,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
1
Judge Michael heard oral argument in this case but passed
away before the decision was filed. The decision is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
Defender, Alexandria, Virginia, Keith Loren Kimball, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Norfolk, Virginia, for Appellant. Dana J. Boente, Acting United
States Attorney, Alexandria, Virginia, Timothy R. Murphy,
Special Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Appellant Harry Edmund Leshen pled guilty without a
plea agreement to one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Leshen’s
presentence investigation report (PSR), adopted by the district
court, increased his base offense level because he had been
convicted of two or more “crime[s] of violence” under U.S.S.G.
§ 4B1.1 (the Career-Offender Guideline), as defined in U.S.S.G.
§ 4B1.2(a). On appeal Leshen argues for the first time that his
prior conviction for grand larceny is too old to be the basis of
the enhancement, and that his two convictions for sex offenses
are not crimes of violence. The government contends that the
sex offenses are “forcible sex offenses” and thus constitute
crimes of violence. For the reasons explained below we vacate
Leshen’s sentence and remand for resentencing. 2
2
At Leshen’s request, and by order entered on January 11,
2011, we placed this appeal in abeyance pending the court’s en
banc consideration of United States v. Vann, 620 F.3d 431 (4th
Cir. 2010) (affirming enhanced sentence for violation of 18
U.S.C. § 922(g)(1) pursuant to the Armed Career Criminal Act),
which had been relied on by the government in a post-argument
Rule 28(j) submission. Upon rehearing en banc, the enhanced
sentence imposed in Vann was vacated. See United States v. Vann,
2011 WL 4793230, No. 09-4298 (4th Cir. Oct. 11, 2011) (en banc).
3
I.
On May 13, 2008, a federal grand jury sitting in the
Eastern District of Virginia returned an indictment charging
Leshen with one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). J.A. 6-7. On
July 18, 2008, Leshen waived his right to have his plea taken
before the district court and pled guilty before a magistrate
judge. J.A. 8-25. The magistrate judge set a sentencing
hearing for October 27, 2008, and ordered a probation officer to
prepare a PSR. J.A. 23-24. At sentencing the district court
accepted Leshen’s guilty plea and found him guilty. J.A. 43.
The district court also adopted the PSR that is the basis of
Leshen’s appeal. Id.
The criminal history portion of the PSR details three
sets of convictions at issue here. Leshen was convicted of
grand larceny, a felony, in Virginia in 1988. J.A. 79. In 1996
in Pennsylvania he was convicted of aggravated indecent assault,
indecent assault, and corruption of a minor. 3 J.A. 80-81. And
in 2008 in Kentucky Leshen pled guilty to and was convicted of
3
Only the aggravated indecent assault conviction could
qualify as a predicate offense under the Career-Offender
Guideline because the other offenses are not punishable by
imprisonment for more than one year, as the Guideline requires.
See Pa. Cons. Stat. Ann. §§ 3126(b), 6301.
4
third-degree rape and third-degree sodomy. 4 J.A. 84-85.
Applying the relevant Guideline, U.S.S.G. § 2K2.1, the probation
officer initially set Leshen’s base offense level at 26 because
the firearm was a semiautomatic weapon “that is capable of
accepting a large capacity magazine and the defendant committed
the instant offense subsequent to sustaining two felony
convictions for crimes of violence.” J.A. 95. The PSR
elsewhere cited Leshen’s convictions for larceny and third-
degree rape, J.A. 75, 77, but did not assign any criminal
history points to the larceny conviction, J.A. 96.
The PSR set the final base offense level at 23 on the
basis of Leshen’s acceptance of responsibility. J.A. 77-78, 99.
The PSR deemed Leshen to have a criminal history category of
III. J.A. 96-98. Based on these figures, the PSR calculated a
Guidelines range of 57 to 71 months. J.A. 99. The PSR
calculation properly assigned only one criminal history point to
the Kentucky convictions because he had not yet been sentenced
for those offenses. J.A. 97; see U.S.S.G. § 4A1.2(a)(4). Since
then Leshen has been sentenced in Kentucky to two five-year
terms to run consecutively to one another and consecutively to
his federal sentence.
4
Only the third-degree rape conviction could qualify as a
predicate offense. See U.S.S.G. §§ 2K2.1 cmt. n.10, 4A1.2(a)(2).
5
At the sentencing hearing the district court adopted
the PSR and its Guidelines calculation, to which Leshen did not
object. J.A. 29-35, 48-52. In pronouncing the sentence the
court explained, “frankly I think the Guidelines are pretty
generous, given your criminal background here and your record.
But I am going to sentence you within the Guidelines at the top
end of 71 months.” J.A. 56. Leshen timely filed a notice of
appeal on November 6, 2008. J.A. 69.
II.
When a defendant unlawfully possesses a firearm in
violation of 18 U.S.C. § 922(g)(1) and the weapon is
semiautomatic and can accept a large-capacity magazine, the
defendant receives a base offense level of at least 20.
U.S.S.G. § 2K2.1(a). The base offense level increases to 22 if
the defendant has a prior conviction for a crime of violence,
and to 26 for two or more such convictions. Leshen challenges
the increase in his base offense level from 20 to 26, arguing
the district court erred in using his larceny conviction because
it was too old, and erred in using his convictions for sex
offenses because they are not crimes of violence. Because
Leshen did not object below, we review for plain error. See
United States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010). To
prevail Leshen must demonstrate that (1) an error occurred that
6
(2) was plain and (3) affected the outcome of the sentencing,
and that (4) the appellate court should exercise its discretion
to correct the error because it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (internal
quotations and citations omitted).
We conclude that the larceny conviction cannot
increase Leshen’s base offense level, and that — notwithstanding
Leshen’s heavy burden — the district court plainly erred in
classifying Leshen’s prior sex offenses as crimes of violence.
A.
We first consider the larceny conviction. The
government does not dispute that it would be plain error to
increase Leshen’s base offense level on account of that 1988
conviction. U.S. Br. at 13-14. We agree. Only prior felonies
receiving criminal history points under U.S.S.G. § 4A1.1(a)-(c)
count for career-offender purposes. U.S.S.G. § 2K2.1 cmt. n.10.
The larceny conviction here received no criminal history points
because it exceeded the Guidelines’ fifteen-year counting
period. See U.S.S.G. § 4A1.2(e).
The record does not reveal whether the district court
relied on the larceny conviction. On the one hand, Worksheet C
of the PSR assigns no criminal history points to the conviction.
J.A. 96. On the other hand, the narrative portion of the PSR
7
describing the underlying felony convictions giving rise to
Leshen’s § 922(g)(1) disqualification cites the larceny
conviction and the Kentucky conviction, but not the Pennsylvania
conviction. J.A. 75. At sentencing the district court remarked
that the larceny conviction “hasn’t actually been counted in
some of these calculations.” J.A. 55.
It is enough to say that the conviction cannot
increase Leshen’s base offense level, and that any such error
would be plain. Such error would not affect the calculation of
Leshen’s Guideline range, however, unless the district court
plainly erred in counting at least one of his other convictions
as a crime of violence. We now address those offenses.
B.
The term “crime of violence” in U.S.S.G. § 2K2.1(a)
has the same meaning as in the Career-Offender Guideline.
U.S.S.G. § 2K2.1 cmt. n.1. The Career-Offender Guideline, in
turn, contains a two-pronged definition:
The term “crime of violence” means any offense
under federal or state law, punishable by imprisonment
for a term exceeding one year, that –
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential
risk of physical injury to another.
U.S.S.G. § 4B1.2(a). The application note elaborates:
8
“Crime of violence” includes murder,
manslaughter, kidnapping, aggravated assault, forcible
sex offenses, robbery, arson, extortion, extortionate
extension of credit, and burglary of a dwelling. Other
offenses are included as “crimes of violence” if (A)
that offense has as an element the use, attempted use,
or threatened use of physical force against the person
of another, or (B) the conduct set forth (i.e.,
expressly charged) in the count of which the defendant
was convicted involved use of explosives (including
any explosive material or destructive device) or, by
its nature, presented a serious potential risk of
physical injury to another.
U.S.S.G. § 4B1.2 cmt. n.1 (emphasis added).
Two methodological points inform whether an offense
constitutes a crime of violence. First, we utilize the familiar
“categorical approach,” looking only to the elements of the
offense. United States v. Seay, 553 F.3d 732, 737 (4th Cir.
2009). Thus “we consider the offense generally, that is to say,
we examine it in terms of how the law defines the offense and
not in terms of how an individual offender might have committed
it on a particular occasion.” Begay v. United States, 128 S.
Ct. 1581, 1584 (2008). 5 Second, we are guided by the “nearly
identical” and “materially indistinguishable” language defining
the term “violent felony” in the Armed Career Criminal Act
5
We leave to the district court in the first instance
consideration of whether the decision in Sykes v. United States,
--- U.S.----, 131 S.Ct. 2267 (2011), bears on the issues
presented here.
9
(ACCA). 6 United States v. Rivers, 595 F.3d 558, 560 n.1 (4th
Cir. 2010). Our “precedents evaluating the ACCA apply with
equal force to U.S.S.G. § 4B1.2.” United States v. Jarmon, 596
F.3d 228, 231 (4th Cir. 2010).
We hold that the district court plainly erred by
counting Leshen’s convictions for third-degree rape and
aggravated indecent assault as crimes of violence. Although the
government bases its argument on the commentary, we begin with
the two prongs of the definition.
1.
It is clear enough that neither the Kentucky nor the
Pennsylvania offense has as an element the use, attempted use,
or threatened use of physical force. “Physical force” as used
here means “violent force — that is, force capable of causing
physical pain or injury to another person.” Johnson v. United
States, 130 S. Ct. 1265, 1271 (2010). A person commits third-
degree rape in Kentucky “when . . . (b) [b]eing twenty-one (21)
6
The ACCA provides that
the term “violent felony” means any crime punishable
by imprisonment for a term exceeding one year . . .
that (i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or (ii) is burglary, arson, or extortion,
involves the use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
18 U.S.C. § 924(e)(2)(B).
10
years old or more, he or she engages in sexual intercourse with
another person less than sixteen (16) years old.” Ky. Rev.
Stat. Ann. § 510.060. Similarly, in Pennsylvania
a person who engages in penetration, however slight,
of the genitals or anus of a complainant with a part
of the person’s body for any purpose other than good
faith medical, hygienic or law enforcement procedures
commits aggravated indecent assault if . . . (7) the
complainant is less than 13 years of age; or (8) the
complainant is less than 16 years of age and the
person is four or more years older than the
complainant and the persons are not married to each
other.
18 Pa. Cons. Stat. Ann. § 3125. Because physical force is not
necessary under the Kentucky and Pennsylvania statutes, they do
not constitute crimes of violence under the first prong. Other
circuits, dealing with similar statutes, have reached the same
conclusion. See, e.g., United States v. Wynn, 579 F.3d 567, 573
(6th Cir. 2009); United States v. Dennis, 551 F.3d 986, 989
(10th Cir. 2008).
Bolstering our conclusion is that both Kentucky and
Pennsylvania have in place comprehensive schemes that categorize
some sex offenses as “forcible” and others as “nonforcible.”
Compare Ky. Rev. Stat. Ann. § 510.040 (first-degree rape
requires “forcible compulsion”) with id. § 510.060 (no such
requirement for third-degree rape); compare 18 Pa. Cons. Stat.
Ann. § 3121 (rape requires “forcible compulsion”) with id.
§ 3125 (no such requirement for aggravated indecent assault).
11
Especially revealing are the states’ expansive definitions of
“forcible compulsion.” See 18 Pa. Cons. Stat. Ann. § 3101
(defining term as “[c]ompulsion by use of physical,
intellectual, moral, emotional or psychological force, either
express or implied”); Van Dyke v. Commonwealth, 581 S.W.2d 563,
565 (Ky. 1979) (“‘Forcible compulsion’ may consist of physical
force or threats that do not cause substantial physical pain or
an impairment of physical condition.”). Because Leshen’s
offenses did not satisfy even these broad definitions of
“forcible,” we are not persuaded that the offenses have as
elements the use of “violent” force.
We have explained that sentencing courts must respect
state schemes that distinguish forcible and nonforcible sex
offenses. In United States v. Thornton, 554 F.3d 443 (4th Cir.
2008), we dealt with a Virginia law making it a felony to
“carnally know, without the use of force, a child” between
thirteen and fifteen years of age. Va. Code Ann. § 18.2-63. We
reasoned that “[a]lthough . . . a minor victim cannot give legal
consent to sexual activity, the victim’s inability to consent
does not erase the Code’s distinction between forcible and
nonforcible sexual offenses.” Thornton, 554 F.3d at 448.
Because “the Virginia General Assembly considers forcible and
nonforcible sexual offenses to present different risks that are
punishable in different ways,” we rejected the attempt to
12
conflate the “nonforcible carnal knowledge offense . . . with
Virginia’s forcible sexual offenses through the concept of
constructive force.” Id.
We turn next to the second prong. Here too we
conclude that Leshen’s prior offenses plainly do not constitute
crimes of violence. The second prong contains both a listing of
offenses as well as an “otherwise” clause for offenses that
present a “serious potential risk of physical injury.” Because
the second prong does not expressly list sex offenses (whether
forcible or not) as crimes of violence, the offenses constitute
crimes of violence only if they fall within the “otherwise”
clause. Precedents from the Supreme Court and this court
foreclose this argument. In Begay the Supreme Court held that
drunk driving is not a “violent felony” under the “otherwise”
clause of the ACCA. 128 S. Ct. at 1584. The Court reasoned
that drunk driving “is simply too unlike the provision’s listed
examples for us to believe that Congress intended the provision
to cover it.” Id. The listing of offenses “illustrate[s] the
kinds of crimes that fall within the statute’s scope,” all of
which “typically involve purposeful, violent, and aggressive
conduct.” Id. at 1584-86 (internal quotations and citations
omitted). To constitute a violent felony, an offense must be
“roughly similar, in kind as well as in degree of risk posed, to
the examples themselves.” Id.
13
We applied Begay in Thornton, where we held that
Virginia’s carnal-knowledge statute is not a violent felony
under the same clause. 554 F.3d at 444. We explained that it
is not enough merely that adult-minor sexual activity presents a
generalized risk of harm. Id. at 448. Instead, “the offense
must also be like those listed [in the second prong], both in
kind and degree of risk.” Id. at 447. Unlike violations of the
listed offenses, however, violations of the carnal-knowledge
statute do not “show an increased likelihood that the offender
is the kind of person who might deliberately point the gun and
pull the trigger.” Id. at 449. The risks associated with
violations of the carnal-knowledge statute “are not immediate or
violent in nature and do not inherently support an inference
that an offender will later commit a violent crime.” Id. Nor
can the concept of constructive force “shoehorn the carnal
knowledge offense into the definition of a violent felony.” Id.
at 448. The offense at issue in Thornton, we concluded, simply
was not sufficiently “violent” and “aggressive” to constitute a
violent felony. Id. at 448-49.
In light of these decisions we hold that the Kentucky
and Pennsylvania offenses plainly are not crimes of violence
under the “otherwise” clause. Both offenses closely resemble
the carnal-knowledge statute in Thornton: all three statutes
criminalize adult sexual contact with minors, notwithstanding
14
legally ineffective consent in-fact; all three statutes fall on
the nonforcible side of their respective states’ classification
schemes for sex offenses; and all three involve physical contact
of some kind. Because the Kentucky and Pennsylvania offenses
are for nonforcible offenses, and because both states have
separate offenses in place to account for situations in which
force is present, we conclude that the “typical” violation of
the statutes here is not sufficiently violent and aggressive to
be a crime of violence. See United States v. Terrell, 593 F.3d
1084, 1090-91 (9th Cir. 2010) (holding that simple rape is a
crime of violence under the ACCA because physical force
typically is present, unlike in statutory rape).
2.
The Government frames its argument in terms of the
commentary to the guidelines, arguing that Leshen’s convictions
constitute “forcible sex offenses” under the application note
and thereby are crimes of violence. This is so, we are told,
because the application note shows that the Career-Offender
Guideline is broader than the ACCA, at least for sex offenses.
It follows, according to the government, that “[a]ny offense
that qualifies as a forcible sex offenses [sic] is categorically
a crime of violence.” Appellee’s Br. at 17. The government
relies on our decision in United States v. Pierce, 278 F.3d 282
(4th Cir. 2002), for the proposition that “taking indecent
15
liberties with a child is a forcible sex offense.” Appellee’s
Br. at 17-18. This argument is unavailing.
We observe at the outset that Guidelines commentary
“that interprets or explains a guideline is authoritative unless
it . . . is inconsistent with, or a plainly erroneous reading
of, that guideline.” Stinson v. United States, 508 U.S. 36, 42
(1993); United States v. Payton, 28 F.3d 17, 19 (4th Cir. 1994).
When such an inconsistency arises “the Sentencing Reform Act
itself commands compliance with the guideline.” Stinson, 508
U.S. at 42. Thus, we have recognized our “duty to harmonize the
U.S. Sentencing Guidelines and commentary.” United States v.
Benkahla, 530 F.3d 300, 312 (4th Cir. 2008).
It is clear that the Kentucky and Pennsylvania
offenses do not fit within the commentary. To begin, we are
skeptical of the commentary’s utility because it was drafted
before Begay and thus does not consider the implications of that
decision. Furthermore, the very inclusion of the modifier
“forcible” demonstrates that the Sentencing Commission
contemplates some sex offenses as nonforcible. As we have
explained, the offenses here do not qualify as forcible. We
also find significant that in all other respects the commentary,
text, and the ACCA have identical coverage. All other offenses
listed in the commentary (1) plainly have as elements the use of
physical force (e.g., murder, kidnapping, aggravated assault),
16
(2) are repetitions of offenses enumerated in the Guideline text
(e.g., burglary of a dwelling, arson, extortion), or (3) by
their terms present a serious potential risk of physical injury
that is similar in kind and degree to listed offenses (e.g.,
manslaughter, robbery). But see United States v. Peterson, 629
F.3d 432 (4th Cir. 2011)(involuntary manslaughter under North
Carolina law not a “crime of violence” under the Career-Offender
Guideline). Given the otherwise parallel coverage of the three
sources, we find unconvincing the argument that the Commission
singled out sex offenses for broader coverage.
What is more, the government cannot, simply by
referring to the commentary and Pierce, escape the need to link
the commentary (and Leshen’s convictions) to either prong of the
definition. “[F]orcible sex offenses” does not have
freestanding definitional power. And while Pierce held that an
offense similar to the ones at issue here involves forcible sex,
it never explained the prong under which the term falls.
Pierce’s holding is grounded in the concept of constructive
force, but that concept no longer satisfies either prong of the
definition. Under the first prong constructive force is not the
same as physical force. Cf. United States v. Chacon, 533 F.3d
250, 255-56 (4th Cir. 2008). As for the second prong, even the
government concedes in light of Begay and Thornton that Pierce
is no longer controlling. Appellee’s Br. at 18. Furthermore, in
17
light of the en banc court’s per curiam opinion in Vann, see
supra n.2, the government’s reliance on Pierce is plainly
unavailing.
Nor are we swayed by the government’s invocation of
the definition of the term in U.S.S.G. § 2L1.2 (the Immigration
Guideline). “For purposes of [that] subsection[,] . . .
‘[c]rime of violence’ means . . . forcible sex offenses
(including where consent to the conduct is not given or is not
legally valid, such as where consent to the conduct is
involuntary, incompetent, or coerced), statutory rape, sexual
abuse of a minor . . . .”). U.S.S.G. § 2L1.2 cmt. n.1(B).
Prior to the addition of the parenthetical clause, we held that
a Maryland statute, which prohibits sexual intercourse with a
victim “[w]ho is mentally defective, mentally incapacitated, or
physically helpless” when the defendant should be aware of the
disability, is a crime of violence. Chacon, 533 F.3d at 255.
We noted that “although the use of force necessarily involves a
degree of compulsion, it can be effected through ‘power’ or
‘pressure,’ which do not necessarily have physical components.”
Id. at 257.
We have no difficulty distinguishing the Immigration
Guideline. We begin with the obvious point that the Immigration
Guideline is broader on its face than the Career-Offender
Guideline. The former enumerates statutory rape as a crime of
18
violence, while the latter omits it altogether. And the
Commission, when it added the parenthetical clause to the
Immigration Guideline in 2008, declined to add the clause to the
Career-Offender Guideline. See Amendments to the Sentencing
Guidelines, Policy Statements, and Official Commentary at 29-30,
U.S. Sentencing Commission (May 1, 2008), available at
http://www.ussc.gov/2008guid/finalamend08.pdf. These features
demonstrate that the Commission is aware of the distinction
between forcible and nonforcible offenses and knew how to treat
them alike when it so sought. We agree that the Immigration
definition “has always expressly covered more sex crimes than
[the Career-Offender] definition, and there is nothing
irrational about the Sentencing Commission’s decision to
continue that approach with the 2008 amendment adding language
to [the Immigration Guideline] alone.” Wynn, 579 F.3d at 575.
Another significant difference is that the Immigration
Guideline defines “crime of violence” entirely in commentary,
while the Career-Offender Guideline sets forth a complete
definition in the text. Thus, in Chacon we did not face the
possibility that the text and commentary could come into
conflict. Here, however, the commentary merely offers further
guidance on a term fully defined in the text. In interpreting
the Career-Offender Guideline we decline to create the tension
19
between text and commentary that would result from treating the
Kentucky and Pennsylvania offenses as crimes of violence.
3.
We next determine whether the error affected the
outcome of the sentence and whether our failure to correct it
would “seriously affect[] the fairness, integrity, or public
reputation of judicial proceedings.” Puckett, 129 S. Ct. at
1429. We answer both questions affirmatively.
To prevail Leshen must show that the error “affected
the outcome of the district court proceedings.” United States
v. Olano, 507 U.S. 725, 734 (1993). For sentencing errors a
defendant “must establish that [the imposed] sentence was longer
than that to which he would otherwise be subject.” United
States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en banc).
We have held that a defendant was entitled to resentencing when
sentenced under an erroneously calculated Guidelines range, even
when the sentence imposed was between the correct and erroneous
ranges. United States v. McCrary, 887 F.2d 485, 489 (4th Cir.
1989). This is because we “cannot confidently assume” that the
factors influencing a specific term of imprisonment in the
erroneous range necessarily would cause the court to select the
same term within the correct range. Id. at 489. This principle
is just as valid after United States v. Booker, 543 U.S. 220
(2005). After Booker “the Guidelines should be the starting
20
point and the initial benchmark” for sentencing. Gall v. United
States, 552 U.S. 38, 49 (2007). From this starting point the
district court then weighs specific factors relevant to the
defendant to arrive at a reasonably appropriate sentence.
United States v. Diaz-Ibarra, 522 F.3d 343, 347 (4th Cir. 2008).
We are confident that the error affected Leshen’s
sentence. The enhancement increased Leshen’s base offense level
from 17 to 23. Even with his criminal history category now at
IV (rather than III as at his initial sentencing), his
Guidelines range would be 37 to 46 months, 20 to 25 months
shorter than the range applied at his original sentencing (57 to
71 months). See U.S.S.G. Ch. 5, Pt. A. While the district
court sentenced Leshen at the top of the Guidelines range, and
while the court did remark that the range was “pretty generous”
in light of Leshen’s record, in its very next breath the court
indicated it would stay within the Guidelines range. J.A. 56.
Finally, we determine whether we ought to exercise our
discretion to correct the error. We have held that a sentence
to a term of supervised release 11 months longer than authorized
by statute seriously affects the fairness of judicial
proceedings. United States v. Maxwell, 285 F.3d 336, 342-43
(4th Cir. 2002). In Maxwell we stated that “no court of justice
would knowingly require a man to endure significant restrictions
on his liberty as provided under supervised release for nearly a
21
year longer than deserved.” Id. at 343; cf. United States v.
Allen, 450 F.3d 565, 570 & n.4 (4th Cir. 2006) (sentence below
statutory minimum was plain error and warranted resentencing).
We exercise our discretion to correct the error here as well.
Not to resentence Leshen would be even more
“fundamentally unfair” than not to resentence the defendant in
Maxwell. There the excess time was a mere 11 months, but here
the Guidelines range is 20 to 25 months shorter than his initial
sentence. Furthermore, the restriction on liberty in Maxwell
was mere supervised release, but here it is incarceration. We
emphasize as well that the costs of remand are minimal. Whereas
noticing a trial error necessitates a new trial, noticing a
sentencing error results in, at most, a remand for resentencing.
The government cites the circumstances underlying
Leshen’s convictions to oppose resentencing. See U.S. Br. at
27. We decline the government’s invitation. As we have made
clear the district court is free to — and did — consider that
record in reaching a reasonable sentence. Leshen also has now
been sentenced in Kentucky for those very offenses, receiving a
total of ten years’ imprisonment to run consecutively to his
federal sentence. We will not count that record for a third
time to deny Leshen the benefit of a properly calculated
Guidelines range.
22
III.
For the foregoing reasons, the judgment is vacated and
the case is remanded for resentencing proceedings consistent
with this opinion.
VACATED AND REMANDED
23