United States v. Vargem

When a district court misstates Sentencing Guidelines ranges it constitutes plain error because there is probability the district court would have applied a different sentence. It is also plain error to apply an enhancement when other actions by the defendant are not “relevant conduct” in relation to the conviction.

An officer obtained an emergency protective order against Steven Lee Vargem, on behalf of his wife, which included a prohibition from owning, possessing, etc. firearms. During an arrest, investigators recovered an unregistered pistol. Also, during a warranted search, 28 firearms, including an unregistered machine gun were found. “He was ultimately indicted [and convicted] for unlawful possession of a machine gun in violation of 18 U.S.C. §§ 922(o) and 924(a)(2), and unlawful possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871” and sentenced 30 months imprisonment. Vargem appealed. The government conceded “the district court miscalculated Vargem’s base offense level [of 20] under the United States Sentencing Guidelines (“Guidelines”), “Section 922(g)(8) did not apply, that Vargem was not a prohibited person under § 2k2.1, and the base offense level should have been 18 pursuant to § 2K2.1(a)(5).” The court “also applied a six-level enhancement for multiple firearms.” “[T]he resulting guideline range was 70 to 87 months.” The government argued resentencing was not necessary because “Vargem received a sentence well below his calculated Guidelines range, [and] … a two-point correction in the base offense level would not affect his substantial rights.” The panel held “the district court’s “failure accurately to state the [correct] Guidelines range” in this case “derailed the sentencing proceeding before it even began”” and “had the district court started with the correct Guidelines range, there is a reasonable probability that it would have imposed a different sentence.” The panel also reasoned “[b]ecause … possession of the remaining firearms was not “relevant conduct” in relation to Vargem’s offense of conviction—ownership of an unregistered machine gun— … the six-level enhancement was erroneous.” The Panel held “that the district court committed plain error in calculating Vargem’s offence level under the Guidelines.” AFFIRMED IN PART, VACATED IN PART, REMANDED.