United States v. Corn

47 F.4th 892

UNITED STATES of America, Plaintiff - Appellee,

v.Christopher L. CORN, Defendant - Appellant.

No. 21-1881

United States Court of Appeals, Eighth Circuit.

Submitted: November 16, 2021

Filed: September 6, 2022

Rebecca L. Kurz, Asst. Fed. Public Defender, Kansas City, MO, argued (Laine Cardarella, Fed. Public Defender, on the brief), for defendant-appellant.

David Wagner, Asst. U.S. Atty., Kansas City, MO, argued (Teresa A. Moore, Acting U.S. Atty., on the brief), for plaintiff-appellee.

Before COLLOTON, GRASZ, and KOBES, Circuit Judges.

COLLOTON, Circuit Judge.

Christopher Corn challenges a sentence imposed by the district court¹ after revocation of Corn's term of supervised release. We conclude that Corn invited any error regarding the statutory maximum sentence, and the district court did not abuse its discretion in sentencing Corn within the invited range. We therefore affirm the judgment.

In 2019, Corn pleaded guilty to unlawful possession of a firearm in a school zone. See 18 U.S.C. §§ 922(q)(2)(A), 924(a)(4). The plea agreement stated that Corn "understands that this is a Class D felony" with a maximum sentence of five years’ imprisonment and three years of supervised release. The agreement further recited that if Corn violated a condition of his supervised release, the court may impose an additional period of imprisonment of up to two years and a new term of supervised release. At sentencing, Corn agreed that he could be sentenced to a term of supervised release not to exceed three years, and requested a sentence that included a three-year term of supervised release. The district court sentenced Corn to a term of fifty-five months’ imprisonment and three years’ supervised release.

Corn was released from custody and began his term of supervised release in March 2020. In April 2021, the district court revoked Corn's supervised release after he admitted to the possession and use of methamphetamine. The court determined that the maximum term of imprisonment for a revocation sentence was two years, that the advisory guideline range was eight to fourteen months, and that imprisonment and supervised release together could not exceed thirty-six months.

Corn agreed with those calculations, and asked the court to impose a revocation sentence of one year and a day in prison with no supervision to follow. The district court instead varied upward from the advisory range and imposed a sentence of twenty months’ imprisonment and twelve months of supervised release.

Corn's principal argument on appeal is that his revocation sentence exceeds the maximum term authorized by statute, and that the district court plainly erred in imposing it. The maximum term depends on the term of supervised release authorized by statute for Corn's original firearms offense. When a district court revokes a term of supervised release, the court may impose a term of imprisonment and a new term of supervised release, but the total term cannot exceed the term of supervised release authorized by the original statute of conviction. See 18 U.S.C. § 3583(h).

Corn now argues that the statute of conviction in his case, 18 U.S.C. § 922(q), authorizes a term supervised release of only one year. He thus contends that his revocation sentence of twenty months’ imprisonment and twelve months of supervised release exceeds the maximum. An offender convicted under § 922(q) is subject to a term of imprisonment of up to five years. Id. § 924(a)(4). The penalty provision, § 924(a)(4), is silent as to the applicable period of supervised release, but states that "[e]xcept for the authorization of a term of imprisonment of not more than 5 years made in this paragraph, for the purpose of any other law a violation of section 922(q) shall be deemed to be a misdemeanor." Id.

The authorized term of supervised release for a misdemeanor is not more than one year. Id. § 3583(b). Corn argues that because § 922(q) is a misdemeanor "for the purpose of any other law," it is a misdemeanor for the purpose of calculating his term of supervised release under § 3583(b). As such, Corn contends that § 922(q) authorizes a term of supervised release of not more than one year, and that one year allocated between imprisonment and supervised release is the maximum punishment allowed after a revocation of supervised release.

The government counters that § 922(q) authorizes a term of supervised release of up to three years. Corn's firearms offense is not classified by a letter grade in § 922(q), and offenses "not specifically classified by a letter grade" are assigned letter grades in 18 U.S.C. § 3559(a) based on the maximum term of imprisonment allowed. Because the maximum term of imprisonment for a violation of § 922(q) is five years, the government contends that the offense is classified as a Class D felony under § 3559(a)(4). The authorized term of supervised release for a Class D felony is up to three years, 18 U.S.C. § 3583(b)(2), so the government argues that Corn's revocation sentence of twenty months’ imprisonment and twelve months of supervised release is within the applicable maximum of thirty-six months. On this view, because the availability of a three-year term of supervised release follows directly from "the authorization of a term of imprisonment of not more than 5 years made in this paragraph," 18 U.S.C. § 924(a)(4), the misdemeanor classification "for the purpose of any other law" does not apply. Two circuits have concluded that the government's interpretation is not plainly erroneous. United States v. Grant , 665 F. App'x 304, 308 (4th Cir. 2016) ; United States v. Alvira-Sanchez , 804 F.3d 488, 495 (1st Cir. 2015).

In this case, we conclude that Corn is not entitled to plain-error review because he invited the alleged error. Under the invited error doctrine, a defendant who invites the district court to make a particular ruling waives his right to claim on appeal that the ruling was erroneous. United States v. Campbell , 764 F.3d 874, 879 (8th Cir. 2014) ; United States v. Mariano , 729 F.3d 874, 881 (8th Cir. 2013). The plain-error standard applies only "when a defendant inadvertently fails to raise an objection in the district court." United States v. Thompson , 289 F.3d 524, 526 (8th Cir. 2002). A defendant cannot complain on appeal that the court proceeded in a way that his lawyer requested. Id.

Corn invited the district court to classify § 922(q) as a Class D felony rather than as a misdemeanor. Corn's plea agreement regarding the offense stated that he "understands that this is a Class D felony" with a maximum sentence that could include three years of supervised release. Corn also acknowledged that if he violated a condition of his release, the court could impose an additional period of imprisonment of up to two years, a punishment available only for a felony.

At the original sentencing hearing, Corn sought a sentence that included a three-year term of supervised release. That term is authorized for a Class D felony, but exceeds the punishment allowed for a misdemeanor. See 18 U.S.C. § 3583(b)(2), (b)(3), (e)(3).

Corn again invited the district court to treat § 922(q) as a Class D felony at the revocation hearing. Corn agreed that the statutory maximum penalty was two years’ imprisonment, and that custody and supervised release together could not exceed three years. Corn specifically asked the court for a revocation sentence of a year and a day in prison—a term that was permissible only if § 922(q) was classified as a felony rather than a misdemeanor. The district court accepted the invitation to treat § 922(q) as a felony, although it did not adopt Corn's preferred sentence within the statutory range for a Class D felony.

Corn's invitation is comparable to the defendant's litigating position in United States v. Love , 449 F.3d 1154 (11th Cir. 2006). There, the defendant sought to appeal a sentence that included a term of five years’ supervised release on the ground that the statute of conviction did not authorize any term of supervised release. Id . at 1156. But the defendant had acknowledged in a plea agreement that the statute authorized a term of up to five years’ supervised release, and he had requested a sentence with two years of supervised release. Id. at 1157. The Eleventh Circuit ruled that because the defendant invited the district court to impose a sentence that included a term of supervised release, he was precluded from arguing on appeal that the statute did not authorize supervised release. The court thus affirmed the sentence that included a term of five years’ supervised release. Id.

In this case, Corn invited the district court to treat § 922(q) as a felony by imposing a sentence that was permissible only if the offense was so classified. Corn thus invited any error in classifying the offense as a felony, and he is foreclosed from asserting on appeal that § 922(q) should be classified as a misdemeanor. See Campbell , 764 F.3d at 879 ; Mariano , 729 F.3d at 881.

The dissent argues that the invited error rule should not apply where the government "first introduced the error" and the sentence imposed allegedly exceeds the statutory maximum penalty. On that view, even if the district court had imposed precisely the sentence of a year and a day that Corn requested, he could appeal on the ground that the sentence was one day too long. We decline to adopt the proposed exception to the ordinary rule.

This court has declined to deviate from the invited error rule with respect to an alleged error that was introduced by the government. In Campbell , a plea agreement provided that a certain provision of the sentencing guidelines would apply in determining a prison term. The district court applied the guideline, but the defendant later challenged that decision on appeal. This court held that the defendant invited the alleged error, and that appellate review was not available. 764 F.3d at 879. We then applied Campbell in United States v. Montagne , 854 F. App'x...