Unexplained Variance After 2255 Error, But Harmless

US v. Ketter: Ketter was convicted of being a felon in possession of a firearm and sentence to 192 months in prison under the Armed Career Criminal Act. After Johnson, and after having served 90 months in prison, Ketter successfully had his sentence vacated in a 2255 proceeding.  A New PSR calculated Ketter’s advisory Guideline range as 27 to 33 months, with a supervised release term of 1 to 3 years. The district court imposed a sentence of time served, to be followed by a two-year term of supervised release. That was opposed to the usual three-year term, with the court taking into account that Ketter had served 53 months over the Guideline range.

Ketter appealed, arguing that his sentence was substantively unreasonable. The Fourth Circuit disagreed. First, it held that the matter was not moot (as argued by the Government after being directed to address the issue by the court) because, even though Ketter had served his sentence of imprisonment, the district court on remand could still provide relief in the form of a lower term of supervised release. As to the sentence, the court concluded it was an “unexplained variance . . .and so constituted procedural error,” but that any error was harmless. That was because “the district court fully and expressly accounted for Ketter’s overserved time” when it imposed a two-year term of supervised release. In addition, “any error did not have the practical effect of prolonging Ketter’s incarceration by even one day.”