Misclassification of Defendant as Career Offender Harmless When District Court Would Impose Same Sentence Regardless

US v. Cox: Cox pleaded guilty to multiple drug charges. In the PSR, the probation officer identified two of his prior convictions as “controlled substance offenses,” making him a career offender. One of them was a 2009 drug conviction from Florida that applied not only to distribution and possession with intent to distribute but to purchasing drugs. The district court overruled Cox’s objection and imposed a sentence of 120 months – a “compromise” between the Government’s request for a bottom of the career offender Guideline sentence (151 months) and Cox’s argument for a nearly top-of-the-unenhanced Guideline sentence (104 months). The district court said it would impose the same sentence “in the event I am wrong” about the career offender determination because the un-enhanced Guideline would understate Cox’s history of recidivism.

On appeal, the Fourth Circuit affirmed Cox’s sentence. Although “there can be little doubt that the probation officer and the district court erred in their Guidelines calculations” (and the Government didn’t argue otherwise), the error was harmless. “The district court left no room for doubt as to what it would do upon any remand” and imposed the same 120-month sentence. Further that sentence was not substantively unreasonable.