United States of America v. Donald L. Shaw

United States Court of Appeals
For the Eighth Circuit
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No. 23-2169
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United States of America
Plaintiff - Appellee
v.
Donald L. Shaw
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 11, 2024
Filed: June 17, 2024
[Published]
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Before LOKEN, KELLY, and STRAS, Circuit Judges.
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PER CURIAM.
Donald Shaw appeals the 24-month prison sentence that the district court
imposed following the second revocation of his supervised release. After careful
review, we vacate and remand for resentencing.

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I.
Shaw pleaded guilty to Felon in Possession of a Firearm, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). In October 2019, he was sentenced to 40 months
of imprisonment and 24 months of supervised release. In September 2022, Shaw’s
term of supervised release was revoked, and the district court sentenced him to 8
months of imprisonment and 18 months of supervised release.
Shaw began his second term of supervised release in January 2023. In March
2023, the United States Probation Office (USPO) filed a petition to revoke his
release, alleging that Shaw was noncompliant with several conditions of his
supervision. The most serious conduct alleged—an incident involving felony
domestic assault and possession of a firearm—qualified as a Grade A violation. All
other instances of noncompliance alleged were Grade C violations. In the Sentencing
Computation worksheet submitted to the court, the USPO determined that Shaw’s
applicable Guidelines range—assuming the most serious grade violation was Grade
A—would be 33 to 41 months of imprisonment, lowered to 24 months due to the
statutory maximum under 18 U.S.C. § 3583(e)(3). See United States Sentencing
Guidelines (USSG) § 7B1.4(b)(1) (2021).
Shaw contested the violations. By the time of the revocation hearing, the
alleged assault victim had retracted statements she previously made to law
enforcement and was unavailable to testify. Over Shaw’s hearsay objections, the
government offered the testimony of a local domestic abuse detective who
investigated the assault. Shaw’s federal probation officer also testified, again over
Shaw’s objection, about statements the victim made concerning a firearm she said
Shaw took from her apartment on the night of the assault.
The district court declined to revoke Shaw’s term of supervised release based
on the conduct supporting a Grade A violation, stating, “I’m not going to revoke
[Shaw] based upon the issues surrounding the assault.” The court nevertheless

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concluded that Shaw’s “supervised release [was] revoked because he violated the
conditions of release,” and sentenced him to 24 months of imprisonment with no
supervised release to follow.
II.
On appeal, Shaw argues that the district court procedurally erred when it
sentenced him without first calculating the applicable Guidelines range for his Grade
C violations. See USSG § 7B1.4. Because Shaw did not raise this objection to the
district court, we review for plain error. See United States v. Miller, 557 F.3d 910,
916 (8th Cir. 2009). Such an error must be plain and affect substantial rights, and we
will exercise our discretion to correct the error only if it “seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting United
States v. Olano, 507 U.S. 725, 732 (1993)). An error affects a person’s substantial
rights if it is prejudicial, meaning there is a reasonable probability of a more
favorable outcome had it not occurred. United States v. Dang, 907 F.3d 561, 564
(8th Cir. 2018).
Failing to calculate the proper Guidelines range is procedural error. Gall v.
United States, 552 U.S. 38, 51 (2007) (“[The appellate court] must first ensure that
the district court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range”); Rosales-Mireles v.
United States, 585 U.S. 129, 143–44 (2018); Miller, 557 F.3d at 916 (applying same
standards to revocation proceedings). “When a defendant is sentenced under an
incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls
within the correct range—the error itself can, and most often will, be sufficient to
show a reasonable probability of a different outcome absent the error.” Molina-
Martinez v. United States, 578 U.S. 189, 198 (2016).
The government does not meaningfully contest that the district court failed to
calculate the Guidelines range for a Grade C violation—which the parties agree was
8 to 14 months. And there is no dispute that the district court found only Grade C

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violations. The government nevertheless argues there was no error, pointing out that
it expressly requested an upward variance to the statutory 24-month maximum if the
district court found it had proven Grade C, but not Grade A, violations. According
to the government, this is sufficient for us to conclude that “the district court was
aware of” the appropriate range—a range that was never calculated.
The government’s request for a variance may suggest that everyone
understood that the advisory range would be lower than 24 months. But without an
accurate Guidelines calculation, the government’s request alone cannot tell us how
much lower the range was and, more importantly, does not give us a point of
reference for the extent of the upward variance. See Gall, 552 U.S. at 51 (concluding
that the reasonableness of a sentence is determined by the “totality of the
circumstances, including the extent of any variance from the Guidelines range”);
Rosales-Mireles, 585 U.S. at 134 (“The district court has the ultimate responsibility
to ensure that the Guidelines range it considers is correct.”). We recognize that the
district court expressed concerns about Shaw’s conduct while on supervised release
and said that Shaw was “not amenable to supervision.” These statements support its
decision to revoke Shaw’s term of supervised release; they do not, however,
convince us that the district court was determined to impose the statutory maximum
sentence regardless of the grade of Shaw’s violations. See Molina-Martinez, 578
U.S. at 204.
In similar contexts, we have concluded that the failure to articulate the
applicable range in open court did not rise to the level of plain error. See United
States v. Elbert, 20 F.4th 413, 415–16 (8th Cir. 2021) (finding no plain error where
“[t]he district court did not recite the guideline range at the hearing, but the record
shows that the advisory range was properly calculated in a violation worksheet that
the probation office submitted to the court several days before the proceeding”);
Dang, 907 F.3d at 564–65 (finding no error despite lack of Guidelines calculation
where the USPO filed a violation worksheet with the court and the court
demonstrated adequate consideration of Chapter 7 of the Guidelines). But in those
cases, the correct Guidelines range was calculated in the revocation documents made

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available to the parties and the district court. Here, the probation officer calculated
only the Guidelines range for a Grade A violation in the revocation worksheet. The
Guidelines range applicable to the Grade C violations given Shaw’s criminal history
was simply not calculated at any time during the relevant proceedings.
Shaw’s revocation hearing spanned two separate days, several weeks apart,
and the parties’ focus during the hearing was on the contested Grade A conduct. This
may have played a role in the district court’s failure to calculate the applicable range
for Shaw’s Grade C violations. Nevertheless, on this record, the oversight was plain
error that affected Shaw’s substantial rights and is “sufficient to show a reasonable
probability of a different outcome absent the error.” See Molina-Martinez, 578 U.S.
at 198. Thus, Shaw is entitled to be resentenced.1 See, e.g., United States v.
Mulverhill, 833 F.3d 925, 930–31 (8th Cir. 2016) (remanding for resentencing
because the district court was silent as to the sentence it would have imposed absent
the error in calculating the Guidelines range).
We remand the matter to the district court to give it the opportunity to
calculate and consider the appropriate range for the Grade C violations it found
before imposing a sentence that is “sufficient, but not greater than necessary” to meet
the purposes of sentencing under 18 U.S.C. § 3553(a). See Molina-Martinez, 578
U.S. at 204 (“[The Guidelines] serve as the starting point for the district court’s
decision and anchor the court’s discretion in selecting an appropriate sentence.”);
Rosales-Mireles, 585 U.S. at 133.
1 Because we conclude that Shaw is entitled to be resentenced as a result of
this procedural error, we need not address his arguments that the district court erred
in considering hearsay testimony or that the length of his revocation sentence was
substantively unreasonable.

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III.
We vacate Shaw’s sentence and remand to the district court for resentencing.
LOKEN, Circuit Judge, dissenting without opinion.
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