Sentence Vacated Following Miscalculation of Base Offense Level

By: Zachary M. Nielsen

In United States v. Black (D. Kan.)(15-3111)(07-CR-10221-MLB-4), the 10th Circuit vacated the district court’s sentence and remanded for resentencing due to an error in the calculation of the base offense under the United States Sentencing Guidelines. In addition, the Court found that, despite a 23-month delay in bringing him to trial, the government did not deny defendant Black his Sixth Amendment right to speedy trial.


Black was convicted of conspiring to distribute cocaine, using a telephone in committing or facilitating the conspiracy, and possessing with intent to distribute cocaine. See 21 U.S.C. §§ 841(a)(1),843(b) 846. At sentencing, probation recommended Black receive a sentence as a career-offender under U.S.S.G § 4B1.1(b). In its amended Presentence Investigation Report, it found his current offense to carry a max penalty of life in prison. Accordingly, Black’s total offense level was calculated to be 37 and his criminal history score as VI. This gave him an advisory Guideline range of 360 months to life. On April 30, 2015, Black was sentenced to 360 months in prison. However, Black’s instant offense actually carried a maximum penalty of thirty years making the correct base offense level 34, with a Guideline range of 262 to 327 months given his criminal history. See 21 U.S.C. § 841(b)(1)(C).


Because Black made no objection to the Guideline calculation at the district court level, his appeal was reviewed for plain error. During sentencing the district court made clear that it would have imposed the 360 month sentence regardless of a different Guideline range. Despite this, the Court found that (1) the district court erred, (2) the error was plain, (3) the error effected the defendant’s substantial rights, and (4) the error seriously affected the fairness of the proceeding. United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014). The Government conceded error and the Court found resentencing was the only appropriate course of action given that the current sentence was above the appropriate Guideline range. See United States v. Rosales-Miranda, 755 F.3d 1253 (10th Cir. 2014).


Despite the substantial length of time between the initial indictment and the beginning of trial, the Court determined the Government had not denied Black’s Constitutional right to a speedy trial. Under the pertinent factors: (1) the length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant, the Court found Black suffered little to no prejudice and failed to properly assert his right. See Barker v. Wingo, 407 U.S. 514, 530 (1972). Consequently, the court held that the long delay in no way advantaged the prosecution.