by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit remanded to the U.S. District Court for the Central District of Illinois for resentencing where that court’s inoculating statement regarding a potential Sentencing Guidelines miscalculation failed to satisfy the conditions enunciated in United States v. Abbas, 560 F.3d 660 (7th Cir. 2009).

Christopher Asbury was adjudged guilty by a jury on a charge of distributing at least 50 grams of methamphetamine. Asbury sold 83.1 grams of 99% pure methamphetamine to a confidential informant (“CI”). Because of a prior drug offense, he faced a statutory sentencing range of 15 years to life.

The probation office prepared the Presentence Investigation Report (“PSR”). The PSR noted that the quantity of meth involved in the offense was 82.2 grams (i.e., 99% of 83.1). Using the drug conversion tables of Sentencing Guidelines § 2D1.1, cmt. 8(D) (table 2), the PSR calculated a converted drug weight of 1,644 kilograms. But the PSR also asserted that it was “relying on reports” of other CIs that were “obtained from investigative reports prepared by law enforcement that this [probation] office deemed credible” to claim that Asbury had actually sold a total converted weight of 33,282.6 kilograms of meth to several individuals over an approximate 18-month period.

Asbury objected to the additional converted weight, arguing he was not responsible for those alleged sales. Rather than requiring additional evidence as to the factual basis for the added drug quantity, the District Court determined that the additional weight was “relevant conduct” and stated it was “adopt[ing] the probation officer’s position.” This resulted in raising Asbury’s Guidelines range of 210 to 262 months to a range of 360 months to life.

The court explained that even “if [it] erred in some way in calculation of the applicable guidelines” that “would not affect [its] sentence.” The court added even “if [it] were to impose the statutory mandatory minimum [of 180 months, Asbury] would not be out until he was in his early 50s. Likewise, I am to protect the public from further crimes of the defendant. The defendant will be out of commission for a lengthy period of time.” The court then imposed a sentence of 360 months (double the statutory minimum) without explaining why the greater sentence was necessary if, as it stated, the mandatory minimum would have sufficed for deterrence and to protect the public.

Asbury appealed, arguing, inter alia, that the District Court erred by relying on the unsupported and disputed allegations made by the CIs in the PSR.

The Court agreed with the Government’s concession that the drug-quantity finding cannot be sustained. In United States v. Helding, 948 F.3d 864 (7th Cir. 2020), the court found prejudicial error where “no step [was] taken to find some modicum of reliability of the CI information supplied to the probation officer charged with preparing the PSR.” The Court noted that the District Court in the current case similarly failed to take any steps to determine the reliability of the CI information.

 The Court also cited to United States v. Gibbs, 26 F.4th 760 (7th Cir. 2022), in which the court instructed: “The government bears the burden of proving by a preponderance of the evidence that uncharged drug quantities are attributable to the defendant.” The District Court clearly erred in arriving at its drug-quantity finding, according to the Court. Consequently, the task before the Court was to determine whether the error was harmless.

The Court explained that 18 U.S.C. § 3553(a) compels sentencing courts to proceed in two steps. First, the court must calculate the correct advisory sentencing range under the Sentencing Guidelines. § 3553(a)(4). Then, the court must consider the sentencing factors of § 3553(a). That is, sentencing courts are required to start with the Guidelines and then must weigh the § 3553(a) factors.

Under the statutory system, sentencing courts are not permitted to use their discretion to bypass the Guidelines. Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018). Courts may reject the Guidelines’ advisory sentencing range, but when they do, they are required to explain the final sentence and state which of the permissible sentencing considerations it relied upon in doing so. See Kimbrough v. United States, 552 U.S. 85 (2007). The explanation must discuss any “ground of recognized legal merit” put forth by the defendant that’s supported by a factual basis in the record. See United States v. Castaldi, 743 F.3d 589 (7th Cir. 2014).

The statute does not allow sentencing courts to nullify the Guidelines by simply asserting that any latent errors in the calculations are irrelevant because the errors wouldn’t make any difference to the choice of sentence. See United States v. Abbas, 560 F.3d 660 (7th Cir. 2009). However, the Abbas Court instructed that when the sentencing court provides “a detailed explanation” of the basis for a “parallel result” (that is, a sentence different than the Guidelines recommendation), such explanation may render any error in the Guidelines calculation harmless. The Court explained that Abbas authorizes sentencing courts to “inoculate” their non-Guidelines range sentences from reversal on appeal by providing the reviewing court sufficient information needed to determine whether an error was harmless without the need for a remand.

The Court observed that such “inoculating statements” by sentencing courts have greatly increased since they were first approved of in Abbas. Consequently, the Court took this opportunity to clarify the matter by reiterating that “a conclusory comment tossed in for good measure” isn’t sufficient to render a Guidelines error harmless. Abbas. The Court explained that an inoculating statement regarding an imposed sentence is effective against errors identified on appeal only if two conditions are satisfied: (1) the inoculating statement must be “detailed,” i.e., specific attention to the contested Guideline issue must be given in the explanation, see Abbas, and (2) the inoculating statement must explain the “parallel result,” i.e., it must be “tied to the decision the court made” and explain why the potential error would not “affect the ultimate outcome.” United States v. Bravo, 26 F.4th 387 (7th Cir. 2022). If an inoculating statement fails to satisfy either of these conditions, the Court stated “we cannot say with confidence that the district court would have reached the same sentence despite the guidelines error. It follows that we cannot say whether the error was harmless.”

 Turning to the present case, the Court determined that the District Court failed to provide any such detailed explanation to demonstrate it would have arrived at the same sentence under either Guidelines range. The error was further compounded by the District Court’s failure to explain why the 360-month sentence was imposed after it had first implied the 180-month sentence would have satisfied § 3553(a)’s sentencing factors. Such an acknowledgment runs counter to § 3553(a), which states that the “court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of the statute. Additionally, the District Court’s attempted inoculating statement — “if I made an error in the guideline calculation in terms of offense level, that would not affect my sentence” — is not the type of specific explanation required by Abbas, according to the Court.

The Court noted that the Supreme Court has stated that an error in calculating the Guidelines range “can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Rosales-Mireles. That general rule applies to the current case, the Court concluded, summarizing: “The district court did not assure itself that there was an adequate factual basis for the drug quantity reported in the PSR, and its brief comment to the effect that the guidelines had not driven its sentence was not enough to fix this problem. In fact, the court’s later remarks suggesting that even a 180-month sentence would have sufficed confused things further.”

Accordingly, the Court vacated the sentence and remanded for re-sentencing using an offense level that did does not rely on the contested relevant conduct. See: United States v. Asbury, 27 F.4th 576 (7th Cir. 2022). 

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