FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge]
Pourinski on brief for appellant.
T. Quinlivan, Assistant United States Attorney, and Andrew E.
Lelling, United States Attorney, on brief for appellee.
Lynch, Kayatta, and Barron, Circuit Judges.
Daniel Romero pled guilty to unlawful re-entry into the
United States, in violation of 8 U.S.C. § 1326(a) and
(b)(2). After finding Romero subject to the undisputed 46-57
month advisory United States Sentencing Guidelines range
calculated in his presentence report (PSR), the district
court sentenced Romero to a term of 42 months in prison. On
appeal, Romero points out for the first time that the PSR
erroneously applied an enhancement, but for which his
Guidelines range would be only 30-37 months. We vacate and
remand for resentencing.
relevant facts follow. On January 24, 2017, Department of
Homeland Security agents apprehended Romero in the course of
an investigation in Chelsea, Massachusetts. Romero, a native
of Honduras, had been ordered removed from the United States
and deported to Honduras on four occasions between 2006 and
2013. On February 23, he was charged with unlawful re-entry,
in violation of 8 U.S.C. § 1326(a) and (b)(2). On April
3, he pled guilty.
Probation Office prepared Romero's PSR on June 5, 2017.
The report applied, inter alia, a four-level enhancement
under U.S.S.G. § 2L1.2(b)(2)(D) on the grounds that by
the time Romero was first deported, he had already been
convicted of felonies other than illegal re-entry: use of a
motor vehicle without authority, and assault and battery.
Based on that enhancement and other adjustments, Romero's
offense level was 19 and his Guidelines range was 46-57
months. Romero did not object to the enhancement; instead, he
stated in his sentencing memorandum that "there is no
dispute that the [Guidelines range] is 46-57 months (level
19, CHC IV)."
Romero's sentencing hearing, held on July 11, 2017, the
district court checked with the parties that it correctly
understood that "there is no dispute with respect to the
sentencing guideline range." Romero's counsel
confirmed that the court's understanding was
"correct" and that the offense level of 19 and
corresponding Guidelines range of 46-57 months set forth in
the PSR rested on "correct calculations." After
hearing the parties' sentencing recommendations and
noting that it had considered Romero's Guidelines range
as a "beginning point," the court sentenced Romero
to a below-guidelines term of 42 months' imprisonment.
appeal, Romero claims for the first time that the district
court's application of the § 2L1.2(b)(2)(D)
enhancement was in error. He cites Application Note 3 to
§ 2L1.2, which instructs that for purposes of applying
subsection (b)(2) "only those convictions that receive
criminal history points" should be used. The purported
predicate convictions in Romero's PSR did not receive
criminal history points. Without the enhancement,
Romero's offense level would be 15 instead of 19, and his
Guidelines range would be 30-37 months instead of 46-57
review unpreserved challenges to the procedural
reasonableness of a sentence for plain error. United
States v. Rondón-García,
886 F.3d 14, 20 (1st Cir. 2018). Under that standard, the
defendant must show "(1) that an error occurred (2)
which was clear or obvious and which not only (3) affected
the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United
States v. Duarte, 246 F.3d 56, 60 (1st
government concedes that Romero can establish plain error
because application of the § 2L1.2(b)(2)(D) enhancement
was a "clear and obvious" error that affected his
"substantial rights." And the Supreme Court
recently held that "[i]n the ordinary case, as here, the
failure to correct a plain Guidelines error that affects a
defendant's substantial rights will seriously affect the
fairness, integrity, and public reputation of judicial
proceedings." Rosales-Mireles v.
United States, 138 S.Ct. 1897, 1911 (2018).
Rosales-Mireles is on all fours with Romero's
case, as it involved an error in a presentence report,
unnoticed by the parties and the district court, that
inflated the Guidelines range of a defendant convicted of
illegal re-entry from 70-87 months to 77-96 months. See
id. at 1901.
government's sole argument for an affirmance is that
Romero waived his claim of error. See United States
v. Corbett, 870 F.3d 21, 30 (1st Cir. 2017)
("Although a forfeited claim will be reviewed for plain
error, 'a waived issue ordinarily cannot be resurrected
on appeal.'" (quoting United States
v. Walker, 538 F.3d 21, 23 (1st Cir.
2008))). The crux of the argument is that by not just failing
to object but also affirmatively conceding to the district
court that the PSR's 46-57 month Guidelines range
calculation was "correct," Romero knowingly
relinquished his right to challenge the applicability of any
underlying enhancement. Cf. United States
v. Bauzó-Santiago, 867 F.3d 13, 24
(1st Cir. 2017) (defining waiver as the "intentional
relinquishment or abandonment of a known right"). Romero
counters that he never "intended to proceed under an
improperly calculated sentencing guideline range";
rather, he (like the Probation Office and the prosecution)
simply "missed the inaccuracy" in the PSR.
dubious about the government's waiver rationale.
Sentencing judges routinely ask defendants whether they have
any objections to the contents of their presentence report,
including in particular the calculated Guidelines range.
Where the Probation Office has committed an error in
preparing a presentence report that was not then caught by
either the prosecution or defense counsel, treating the
defendant's general concession that he has no objections
and that the calculated Guidelines range is
"correct" as a waiver of his right to challenge a
subsequently identified error on appeal would undermine our
law's distinction between forfeiture and waiver. Cf.
Rosales-Mireles, 138 S.Ct. at 1907 (emphasizing that the
Court "'routinely remands' cases involving
inadvertent or unintentional errors, including sentencing
errors," for plain error review (quoting Hicksv.United States, 137 S.Ct. 2000, 2000
(2017) (Gorsuch, J., concurring))); id. at 1904
(deeming it "unsurprising . . . that 'there will be
instances when a district court's sentencing of a