Tenth Circuit Corrects Court for Failing to Consider Downward Sentencing Guideline Lee

United States v. Lee, No. 21-6167 (10th Cir. 2023)

Lee was charged in the state with feloniously pointing a firearm, kidnapping, sexual batter, and possession of a firearm after conviction for a felony. He pled guilty to the felon in possession charge and the state court sentenced him to 84 months. It also dismissed the remaining three counts. Thereafter, a federal grand jury indicted Lee with being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1) based on the same events as the state case.

At federal sentencing, the PSR recommended a total offense level of 37, criminal history category V, and 324 to 405 months imprisonment based on the same conduct brought in the state prosecution. However, because of the statutory maximum under 922(g)(1), Lee’s effective guidelines range was 120 months imprisonment.

The PSR also provided that under U.S.S.G. 5G1.3(b), if a term of imprisonment resulted from another offense that is relevant conduct to the instant offense the court (1) shall adjust the federal sentence for any period of imprisonment already served on the undischarged term if the court finds the BOP will not credit it to the federal sentence and (2) shall run the federal sentence concurrent to the remainder of the undischarged term of imprisonment. The PSR noted that Lee’s guilty plea in state court was relevant conduct to the federal offense and specified the state sentenced him to seven years and that he had been in continuous primary state custody.

At sentencing, Lee requested the district court run its sentence concurrently to his state sentence under U.S.S.G. 5G1.3(b)(2) and requested credit for 15 months spent in state custody. Without ruling, the district court sentenced him to 120 months imprisonment to run concurrently to the state sentence. The parties asked for clarification as to whether Lee would receive the 15-month reduction under 5G1.3(b)(1), and the district court responded that it was not in a position to know that the BOP absolutely would not credit the 15 months. As such, the court declined to reduce the sentence.

On appeal before the Tenth Circuit, Lee argued that his sentence should be vacated and remanded for resentencing because the district court procedurally erred in disregarding 5G1.3(b)(1) in determining his advisory Guideline range.

In response, the government argued that, under Booker, the court was not required to follow the Guidelines and could disregard 5G1.3(b) in its discretion. The Tenth Circuit found the government’s argument only half correct. While the Guidelines are advisory post-Booker, the district court must still properly calculate and consider the Guidelines’ advisory recommendation. Failure to do so is procedural error. The district court’s failure to account for 5G1.3(b)-whether or not it used its discretion to apply the downward provision-was procedural error.

Second, the government argued that any error was harmless, since the Guideline range was significantly above the statutory maximum of 120 months. However, the Tenth Circuit refused to hold the error did not affect Lee’s sentence. At sentencing, the district court said that although it was not inclined to vary downward 15 months, it had no objection to the BOP giving Lee credit for the time. Because the court could not say with certainty whether the district court would have imposed a different sentence had it applied U.S.S.G. 5G.13(b)(1), it found it must vacate the sentence and remand for resentencing.