United States v. Montgomery

• Decision Date: 24 May 2021
• Docket Number: No. 20-1201,20-1201
• Citation: 998 F.3d 693
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edres MONTGOMERY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

998 F.3d 693

UNITED STATES of America, Plaintiff-Appellee,

v.Edres MONTGOMERY, Defendant-Appellant.

No. 20-1201

United States Court of Appeals, Sixth Circuit.

Decided and Filed: May 24, 2021

ON BRIEF: Andrew N. Wise, FEDERAL COMMUNITY DEFENDER OFFICE, Detroit, Michigan, for Appellant. Patricia Gaedeke, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

Before: STRANCH, BUSH, and READLER, Circuit Judges.

JOHN K. BUSH, Circuit Judge.

The difference between waiver and forfeiture has long bedeviled lawyers and judges alike. Lawyers often split the difference, using the terms interchangeably or even offering a formulation like "my opponent waived and/or forfeited that argument." Sometimes they will also invoke invited error, which falls within the continuum between forfeiture and waiver. But the terms have different meanings and, especially in criminal cases, different consequences. For Edres Montgomery, the difference is dispositive. At his resentencing hearing, the district court applied the wrong Criminal History Category, placing Montgomery in a higher Sentencing Guidelines range. Had Montgomery waived the right to challenge that error, he would be stuck with the sentence he received under the incorrect range. But he only invited the error, which means that we have discretion to review it if the interests of justice demand that we do so. Here, they do. We therefore vacate Montgomery's sentence and remand for resentencing under the correct Guidelines range.

I.

In 2007, a jury convicted Montgomery of conspiracy to distribute cocaine or cocaine base, distribution of cocaine base, and witness tampering. United States v. Montgomery , 358 F. App'x 622, 625 (6th Cir. 2009). At the time, the conspiracy conviction required a mandatory sentence of life in prison, on top of which he received a separate 360-month sentence for the distribution count. Id. Then, three years later, Congress passed the Fair Sentencing Act of 2010, which changed the sentencing scheme for offenses involving crack cocaine. United States v. Boulding , 960 F.3d 774, 777 (6th Cir. 2020). But the Fair Sentencing Act did not make those changes retroactive, so they did not help Montgomery. Id. More recently, in 2018, Congress passed the First Step Act, which made the Fair Sentencing Act's changes to crack-cocaine offenses retroactive, allowing defendants like Montgomery to move for a reduced sentence. Id. He did so in 2019, initially proceeding pro se.

In reviewing Montgomery's motion, the district court had to re-calculate Montgomery's Guidelines range to ensure that it sentenced him under the Guidelines as they existed at the time of resentencing. Id. at 784. It determined that he remained in Criminal History Category VI, but that his base offense level had dropped for each offense, giving him a lower Guidelines range. His new ranges were, according to the district court, 292–365 months for the conspiracy count and 151–88 for the distribution count. After considering the relevant sentencing factors, the district court granted Montgomery's motion and varied downwards from those ranges, reducing his sentences to 275 months for the conspiracy conviction and 145 months for the distribution conviction. Montgomery now appeals, arguing that the district court plainly erred when it placed him in Criminal History Category VI instead of category V. The government offers two arguments in response. First, it argues that Montgomery waived his right to challenge his criminal history categorization. Second, it argues that the district court's error was not plain because the district court's obligation to sentence Montgomery under the correct Guidelines range was not clear.

II.

First, we must clarify the difference between waiver, invited error, and forfeiture and explain their different consequences in the criminal law setting. As we have noted recently, our cases discussing waiver and forfeiture are not a model of clarity. See United States v. Petlechkov , 922 F.3d 762, 767 (6th Cir. 2019) (noting that our cases sometimes use the terms interchangeably); United States v. Wooden , 945 F.3d 498, 503 (6th Cir. 2019) (same), cert. granted on other grounds , ––– U.S. ––––, 141 S. Ct. 1370, 209 L.Ed.2d 118 (2021). Our discussion of invited error fares no better—we call it a "branch of the doctrine of waiver," Harvis v. Roadway Exp., Inc. , 923 F.2d 59, 61 (6th Cir. 1991), but we treat it more like "waiver-light," giving ourselves discretion to forgive it, see United States v. Savoires , 430 F.3d 376, 381 (6th Cir. 2005).

In the district court, both of Montgomery's briefs used the Guidelines range that the district court ultimately applied (292–365 months). His second supplemental brief also said that he had a Criminal History Category of VI. We must determine whether that briefing waived his challenge to the Criminal History Category, invited the error, or merely forfeited the argument.

A. THE DIFFERENT DOCTRINES

Waiver, invited error, and forfeiture are best understood as operating on a continuum.

At one extreme is waiver. "[W]aiver is the ‘intentional relinquishment or abandonment of a known right.’ " United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Johnson v. Zerbst , 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ). A plea agreement, for example, typically waives an array of rights. United States v. Smith , 960 F.3d 883, 886 (6th Cir. 2020). But waiver need not be quite that direct. Take United States v. Jackson , 995 F.3d 476 (6th Cir. 2021). There, Jankie Jackson's attorney explicitly told the district court that he "couldn't have, in good faith, objected to his leadership role," and therefore the leadership role enhancement was proper. Id. at 484. That is waiver. Id. Because a defendant can only waive a right that he knows of and actively abandons, true waiver will be relatively rare. As such, it comes with the strictest consequences: waiver "extinguishes an ‘error’ under Rule 52(b)," so we cannot review the supposed error at all.

Olano , 507 U.S. at 733, 113 S.Ct. 1770 ; Jackson , 995 F.3d at 484 ("[W]e may not review waived claims at all." (quoting United States v. Hall , 373 F. App'x 588, 591–92 (6th Cir. 2010) )).

Forfeiture is at the other end of the spectrum. It is the passive failure to make a timely assertion of a right. Olano , 507 U.S. at 733, 113 S.Ct. 1770. If a defendant fails to object to a district court's ruling at trial, for example, he forfeits the argument. See, e.g. , United States v. Ford , 761 F.3d 641, 653 (6th Cir. 2014) ; see also Black v. United States , 561 U.S. 465, 474, 130 S.Ct. 2963, 177 L.Ed.2d 695 (2010) ("[B]y properly objecting to the honest-services jury instructions at trial, Defendants secured their right to challenge those instructions on appeal."). The same is true if a defendant fails to object to the way the Sentencing Guidelines are applied to him. See United States v. Mabee , 765 F.3d 666, 671 (6th Cir. 2014).¹ But in criminal cases, it is forfeiture in name only— Federal Rule of Criminal Procedure 52(b) allows us to consider such unpreserved arguments for plain error. See United States v. Simmons , 587 F.3d 348, 358 n.6 (6th Cir. 2009) (noting that an argument was forfeited "only in the sense that the claim is subject to a more deferential standard of review on appeal").

Finally, covering much of the space in the middle is invited error. A litigant invites error when he contributes in some way to the district court's error without intentionally relinquishing his rights. See United States v. Barrow , 118 F.3d 482, 490 (6th Cir. 1997) (discussing error that the party "himself invited or provoked the court or the opposite party to make"). In Barrow , we applied the invited-error doctrine to a defendant's challenge to jury instructions to which he had originally stipulated. Id. at 490–91. And in United States v. Thompson , we applied it when a defendant "specifically recommended (along with the government) that the district court apply" two sentencing enhancements. 509 F. App'x 449, 451–52 (6th Cir. 2012) ; see also United States v. Jallad , 468 F. App'x 600, 607–08 (6th Cir. 2012). Because in such circumstances a defendant is more responsible for the district court's error than when he merely forfeits an argument, but has not made the conscious choice to waive the argument, the consequences fall in between those for forfeiture and waiver. We do not review invited errors as a matter of course, but we are also not foreclosed from reviewing them; instead, we review for plain error when "the interests of justice demand" it. United States v. Howard , 947 F.3d 936, 945 (6th Cir. 2020) (quoting United States v. Latham , 358 F. App'x 661, 664–65 (6th Cir 2009) (per curiam)). That crucial difference means that although we have said that invited error is a branch of waiver, it is best to keep the two analytically distinct.

Of course, there will be cases that sit on the hazy border between invited error and waiver. In United States v. Aparco-Centano , for example, Aparco-Centano's counsel explicitly agreed that two of his prior offenses were aggravated felonies for sentencing purposes. 280 F.3d 1084, 1088 (6th Cir. 2002). Doing so, we said, waived his challenge to the district court's decision to treat them as such. Id. But we went on to say that we review "waived" arguments when the interests of justice demand it. Id. That phrasing was imprecise—better stated, we review invited errors when the interests of justice demand it, Barrow , 118 F.3d at 491 ; we do not review waived arguments at all, Olano , 507 U.S. at 732–33, 113 S.Ct. 1770. So were we wrong (or at least inexact) to say that Aparco-Centano waived the challenge, or wrong to raise the possibility that we could review it anyway? More likely it was the former—a labeling error on our part. Nothing in our reasoning there shows that Aparco-Centano was aware that the statuses of his prior crimes were subject to...