Tuesday, March 04, 2008

Juvenile adjudication of "discontinuance" not a "sentence" under 4A1.2. Improper Guidelines calculation not harmless error.

United States v. Langford, No. 06-2774 (3d Cir. February 22, 2008) - Langford entered a guilty plea to bank robbery, armed bank robbery, and carrying and brandishing a firearm during a crime of violence. At sentencing, defense counsel argued that a prior juvenile adjudication that was "discontinued" should not be counted in Langford’s criminal history category. Specifically, that a "discontinuance" was not a sentence under § 4A1.2(a) and therefore a point should not be added - making Langford a category III, rather than a IV. The sentencing court disagreed and ruled that the "discontinuance" counted under § 4A1.2(a) and concluded that Langford was a criminal history category IV.

On appeal Langford argued that the district court improperly calculated his criminal history score and, as a result, started with an incorrect Guidelines range in the sentencing process. In turn, the government argued it was harmless error. In a majority opinion drafted by Judge Rendell (joined by Nygaard), the Third Circuit held that the "discontinuance" was not a sentence under § 4A1.2(a) and that the resulting improper Guidelines range was not harmless error.

With respect to the "discontinuance" the Court focused on the language of § 4A1.2(a) which limits the assignment of criminal history points to those offenses committed prior to age eighteen which "resulted in imposition of an adult or juvenile sentence..." The Court then reviewed the Pennsylvania statutes and determined that a juvenile court can adjudicate a child delinquent and then order the juvenile petition discontinued. The Government argued that the "discontinuance" is akin to a "suspended sentence" which counts under §4A1.2(a). The Court disagreed and, relying on Black’s Law Dictionary, noted that a suspended sentence occurs when the court sentences one "formally" but the sentence is not "actually served". The Court also dismissed each of the Government’s several alternative arguments: 1) that Langford’s "discontinued" sentence was intended to be concurrent to a previously imposed sentence on another case; 2) that the juvenile court had no reason to sentence Langford because it had already committed him on another case; and 3) that the juvenile court’s order for a DNA sample was sufficient to amount to a sentence.

After rejecting these arguments, the Third Circuit found that in light of the district court’s error, the Guidelines range was affected. Therefore, the Court found the proper guideline range should have been calculated with a category III, not a IV - which reduced the range from 46-57 months down to 37-46 months.

The Court then reviewed the effect of this error. Citing United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), the Court first ruled that although advisory, the Guidelines play an "integral role" at sentencing and therefore the district court is required to calculate them properly. Therefore, a miscalculation of the Guidelines would result in the failure to discharge its duties under step one of Gunter. In addition, the proper Guidelines range is the "natural starting point from which the sentencing court exercises its discretion under § 3553(a) at Gunter’s third step." The Court also found support in the Supreme Court’s recent decision in Gall v. United States, 128 S.Ct. 586, 597 (2007), which found an improper Guidelines calculation a "serious procedural error" and Kimbrough v. United States, 128 S.Ct. 558, 564 (2007), which found that a "district judge must include the Guidelines range in the array of factors warranting consideration."
Not only did the Court find that the district court’s failure to properly calculate the Guidelines affected the three part sentencing process, but also that it "the failure to start with the correct Guidelines range is legal error that thwarts reasonableness review–that is, it cuts off [the Court of Appeals] review process before [the Court] even reach[es] the issue of reasonableness."

The Court then considered whether the improper calculation of the Guidelines was harmless error. Immediately, the Court stated that "the use of an erroneous Guidelines range will typically require reversal..." The Court noted, however, that in limited circumstances the error could be harmless. The Court, citing Williams v. United States, 503 U.S. 193, 203 (1992) stated, "we will remand for re-sentencing ‘unless [we] conclude on the record as a whole ... that the error did not affect the district court’s selection of that sentence imposed." It then rejected the Government’s position that harmless error applies when incorrect range and correct range overlap - the only remedy here for the sentence imposed as a result of incorrectly calculated Guidelines range is remand for re-sentencing.

While Judge Weiss agreed with the majority that a "discontinuance" is not a sentence under § 4A1.2, he dissented stating that the miscalculation in the Guidelines range did not make the sentence unreasonable. He proposed some new test - requiring significant procedural error. Specifically,"[t]he reasonableness of a sentence will not be vitiated by an "insignificant" error in the Guidelines calculation. The Guidelines computation should be performed carefully, but it is designed to produce a range – not a designated point. Consequently, the Guidelines calculation need not be as precise as an engineering drawing. There is enough play in the system to allow for harmless error."

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