Error in Calculating Guideline Range Reason for Reversal

In United States v. Todd, the Tenth held that the district court's failure to properly calculate the guideline range warranted reversal. The district court failed to take into account the admissions of the defendant that he obtained at least two ounces of meth per month over the year preceding the indictment, instead noting that the government had failed to prove the quantities by a preponderance of the evidence.

Relying largely on the uncontroverted admissions of the defendant, the probation department, the government, and the Tenth Circuit all agree that the defendant's guideline range should have taken into account the quantities acknowledged (and unrefuted) by the defendant himself. Because the guideline error resulted in a range of 77-96 months rather than 188-235 months, the court of appeals declines to find the error harmless, noting that "the district court expressly relied upon the lesser Guidelines range when passing sentence."

Though not central to the disposition of the appeal, the Tenth Circuit also addresses the defendant's argument that acquitted conduct should not factor into a court's sentence. The Court, while also noting that the case did not really present the issue of acquitted conduct, holds that Watts remains good law and acquitted conduct can be properly considered.

The Todd decision should provide a reminder to all defense counsel that admissions of prior conduct will be counted as relevant conduct. Also of interest is that Gorsuch authored the opinion in this case. He has taken the lead, so to speak, in parsing out the Tenth's view of post-Rita and post-Gall sentencing (he also authored the recent McComb decision), which could cause reason for concern among defense practitioners as his views appear to be extremely deferential to the government (and not just in a Gall-mandated deference).