United States of America v. Jamaryus Moore

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMARYUS MOORE,
Defendant - Appellant.
No. 20-3171
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 6:18-CR-10073-JWB-2)
_________________________________
Edward L. Robinson of Robinson Law Firm, LLC, Wichita, Kansas, for
Defendant-Appellant.
Molly M. Gordon, Assistant United States Attorney (Duston J. Slinkard,
Acting United States Attorney, with her on the brief), Wichita, Kansas, for
Plaintiff-Appellee.
_________________________________
Before BACHARACH, SEYMOUR, and PHILLIPS, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
At Jamaryus Moore’s initial sentencing hearing, after an extended back and
forth between the district court and the parties, the court offered Mr. Moore a choice.
Mr. Moore could take (1) an immediate 51-month sentence of imprisonment; or (2) a
FILED
United States Court of Appeals
Tenth Circuit
April 12, 2022
Christopher M. Wolpert
Clerk of Court
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 1

-- 1 of 30 --

2
48-month sentence of probation, subject to at least 84 months’ imprisonment for any
future probation violation. Mr. Moore took the second option. And for over a year,
Mr. Moore upheld his end of the bargain. But one thing led to another, and he ended
up violating some travel and housing conditions of his probation. After Mr. Moore
admitted his violations, the district court made good on its promise and sentenced
him to 84 months’ imprisonment.
The question here is whether the district court’s sentencing bargain was
procedurally unreasonable. We hold that it was. Exercising jurisdiction under 28
U.S.C. § 1291, we reverse and remand for resentencing.
BACKGROUND
Mr. Moore was indicted for robbery under 18 U.S.C. § 1951(a). After he
pleaded guilty, the probation office calculated Mr. Moore’s advisory guideline range
as 51 to 63 months’ imprisonment. No party objected to the guideline range, and the
district court accepted that calculation.
I. Mr. Moore’s Sentencing Hearings
At his initial sentencing hearing, the government led off by recommending a
low-end sentence of 51 months’ imprisonment. But Mr. Moore had higher hopes—he
asked for time served and three years of supervised release. 1
1 At the time of his first sentencing hearing, Mr. Moore had served about 9
months’ of pretrial confinement, for which he received credit at sentencing.
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 2

-- 2 of 30 --

3
At first, the district court balked at Mr. Moore’s request. Yet it mused that it
didn’t “want to throw somebody away if there’s some hope to get ‘em pointed in the
right direction.” R. vol. 1 at 62. But before forgoing a prison sentence, the district
court wanted a “big hammer” by which it could later sentence Mr. Moore to a longer
prison term if he violated any conditions of his sentence. 2 R. vol. 1 at 61.
Mr. Moore proposed a six-month trial period, during which the district court
could continue to monitor his behavior while he was out on bond. The idea was that
this would enable Mr. Moore to show that he was a worthy of a sentence of
probation.
The district court was agreeable and offered Mr. Moore a choice. He could
take the government’s recommended sentence of 51 months’ imprisonment, or he
could try to comply with the conditions set by the district court to avoid prison.
But the district court warned Mr. Moore that if he violated “any conditions,” it
would sentence him to at least 84 months, and depending on his violations, up to the
statutory maximum for his underlying crime, which was 20 years. R. vol. 1 at 66–67;
see also R. vol. 3 at 59 (“[Y]ou just need to know that I have got 20 years to play
with.”). The district court twice asked Mr. Moore if he would take that risk. He
responded “yes, sir” both times.
2 Based on Mr. Moore’s crime, the maximum sentence he could have received
had his supervised release been revoked was 24 months’ imprisonment. See 18
U.S.C. § 3583(e)(3). To the district court, that wasn’t “a real big club in the greater
scheme of things.” R. vol. 1 at 60. So it declined to adopt Mr. Moore’s initial
proposal.
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 3

-- 3 of 30 --

4
About a week later, the parties returned to court to implement Mr. Moore’s
six-month, trial-period plan. The district court reiterated to Mr. Moore that while it
was “prepared to give [him] a low-end guideline sentence, which is what the
Government argued for, [of] just over four years,” it was also willing to take a chance
on him. R. vol. 3 at 13. It then, again, warned Mr. Moore that violating any
conditions meant that “seven years is the starting point, and it may get worse from
there.” R. vol. 3 at 18–19. And once again, Mr. Moore acknowledged that he
understood, telling the district court that “he [could] do this.” R. vol. 3 at 14. So the
district court released Mr. Moore on bond and continued the sentencing hearing for
six months.
After six months, Mr. Moore returned to court in full compliance with his
conditions. Given that accomplishment, the district court varied from the 51-to-63-
month guideline recommendation and sentenced Mr. Moore to four years’ probation. 3
II. Mr. Moore Violates the Conditions of His Probation
About ten months after he was sentenced, Mr. Moore violated travel and
housing conditions of his probation. 4 The probation office noted that his violations
3 We note some confusion about why the district court didn’t just sentence Mr.
Moore to four-and-a-half years of probation. As we understand it, a violation of his
release terms during this initial six-month trial period would have still resulted in the
promised sentence of at least 84 months of imprisonment.
4 Mr. Moore violated probation by failing to update his probation officer on his
living situation, traveling to Wichita, and traveling to Washington state without first
obtaining his probation officer’s or the court’s permission.
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 4

-- 4 of 30 --

5
were the minimal grade-C violations under U.S.S.G. § 7B1.4(a) and recommended
the advisory range of 5 to 11 months’ imprisonment.
At Mr. Moore’s probation-revocation hearing, the parties and the probation
office recommended sentences within the advisory range of 5 to 11 months. But the
district court circled back to its promised sentence of at least 84 months, reading
aloud pertinent passages from the earlier sentencing transcripts. After that, it noted
that if this kind of sentencing bargain was going to work in the future, other
defendants would “have to know I mean what I say.” R. vol. 3 at 109. With that, the
district court revoked probation and sentenced Mr. Moore to 84 months’
imprisonment, with a three-year term of supervised release to follow. Mr. Moore
objected to the sentence as being above the advisory range of 5 to 11 months of
imprisonment for his violations. The district court overruled the objection.
Mr. Moore now appeals, arguing that his sentence was procedurally and
substantively unreasonable.
DISCUSSION
I. Invited Error
The government relies on the invited-error doctrine to argue that Mr. Moore
has waived any right to challenge his sentence. That doctrine “precludes a party from
arguing that the district court erred in adopting a proposition that the party had urged
the district court to adopt.” United States v. Deberry, 430 F.3d 1294, 1302 (10th Cir.
2005) (emphasis added). As “a species of waiver,” a party must intend to relinquish a
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 5

-- 5 of 30 --

6
right for the invited-error doctrine to apply. United States v. Rodebaugh, 798 F.3d
1281, 1304 (10th Cir. 2015).
We have applied the invited-error doctrine in the sentencing context when a
defendant has “affirmatively endorse[d] the appropriateness of the length of the
sentence before the district court.” United States v. Mancera-Perez, 505 F.3d 1054,
1059 (10th Cir. 2007). And here, we acknowledge that Mr. Moore accepted the
district court’s invitation to avoid incarceration altogether, even when that invitation
carried the court’s promise of a longer prison sentence if he violated any probation
condition. Evidently, other defendants have done the same. 5 But if the government
expects us to extend the invited-error doctrine to a sentence-in-advance system, it
expects too much. 6
II. Plain Error
We now turn to the merits of Mr. Moore’s appeal. He first challenges the
procedural reasonableness of his sentence. But because he failed to object to the
district court’s sentence-in-advance procedure, Mr. Moore concedes that our review
is for plain error. United States v. Poe, 556 F.3d 1113, 1128 (10th Cir. 2009). Under
5 The district court noted that “[e]very single person to whom I’ve extended
such an offer, as far as I can recall, has accepted it. Many of them have done well;
some of them haven’t.” R. vol. 3 at 119. It noted that in its experience, its sentencing
arrangement “is successful for many people.” R. vol. 3 at 116. So the district court’s
invited-sentence option appears to be a regular part of its sentencing practice.
6 Applying the invited-error doctrine here would shield from our review even
sentence-in-advance sentences all the way up to the statutory maximum.
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 6

-- 6 of 30 --

7
plain-error review, a defendant must show: “(1) error, (2) that is plain, (3) which
affects the party’s substantial rights, and (4) which seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (cleaned up).
The government argues that any error would not be plain because Mr. Moore
has provided no precedent from the Supreme Court or the Tenth Circuit prohibiting
similar sentencing bargains. This argument misses the mark.
The appropriate question is whether the district court plainly erred by
employing its sentence-in-advance system. It did. The Supreme Court and this circuit
have established a required order of operations in federal sentencings. A district court
“is supposed to start with the facts,” calculate the advisory guideline range, and then
“decide whether a variance is warranted to ensure a just sentence.” United States v.
Sabillon-Umana, 772 F.3d 1328, 1331 (10th Cir. 2014); see also Gall v. United
States, 552 U.S. 38, 49–50 (2007) (concluding that “a district court should begin . . .
by correctly calculating the applicable Guidelines range” before considering the
§ 3553(a) factors). Thus, the plain error here lies in preordaining a minimum future
sentence and bypassing the required analysis that is available only after probation has
been revoked. 7
7 In effect, the court suspended a minimum term of imprisonment for any
future probation violations. That itself was error:
Prior to the implementation of the federal sentencing guidelines, a court
could stay the imposition or execution of sentence and place a defendant
on probation. When a court found that a defendant violated a condition
of probation, the court could continue probation, with or without
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 7

-- 7 of 30 --

8
As mentioned, the district court, at the first sentencing hearing, noted the
advisory guideline range of 51 to 63 months’ imprisonment as calculated in the
Presentence Report (“PSR”). Afterward, the district court properly considered the
§ 3553(a) sentencing factors. It then agreed with the government’s recommendation
for a low-end, 51-month sentence. But after further discussion, the district court
offered Mr. Moore a six-month trial period on bond to see whether he was worthy of
a sentence of four years’ probation, conditioned on a substituted sentence of at least
84-months’ imprisonment for any probation violation. The problem is obvious—the
district court couldn’t have known whether Mr. Moore’s future conduct would justify
the at-least-33-month-consecutive increase to its offered 51-month sentence. This
makes the district court’s sentence-in-advance system procedurally unreasonable. See
Sabillon-Umana, 772 F.3d at 1331 (“The district court in this case failed to follow
extending the term or modifying the conditions, or revoke probation and
either impose the term of imprisonment previously stayed, or, where no
term of imprisonment had originally been imposed, impose any term of
imprisonment that was available at the initial sentencing.
The statutory authority to “suspend” the imposition or execution of
sentence in order to impose a term of probation was abolished upon
implementation of the sentencing guidelines. Instead, the Sentencing
Reform Act recognized probation as a sentence in itself. 18 U.S.C. §
3561. Under current law, if the court finds that a defendant violated a
condition of probation, the court may continue probation, with or without
extending the term or modifying the conditions, or revoke probation and
impose any other sentence that initially could have been imposed. 18
U.S.C. § 3565. For certain violations, revocation is required by statute.
U.S. Sent’g Guidelines Manual (“U.S.S.G.”) ch. 7, pt. A, introductory cmt. (U.S.
Sent’g Comm’n 2021).
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 8

-- 8 of 30 --

9
this order of operations . . . . This was error.”); see also United States v. Tatum, 760
F.3d 696, 697 (7th Cir. 2014) (Posner, J.) (“We don’t think a judge can be permitted
to . . . commit[] himself in advance to a specified sanction for any violation of
probation, committed at any time, under any circumstances. That’s too much like
sentence first, trial afterwards.”).
After a defendant has violated a condition of probation, 18 U.S.C.
§ 3565(a)(1)–(2) instructs courts to consider any applicable § 3553(a) factors when
choosing between (1) continuing him on probation with or without modifications to
the term or conditions; or (2) revoking probation and “resentence[ing] the defendant
under subchapter A [of Title 18, Chapter 227—Sentences].” In Mr. Moore’s case, the
district court chose to revoke probation.
But by revoking probation, the district court committed itself to a two-step
process under § 3565(a)(2). First, as the word “resentencing” suggests, a district
court must reevaluate the case as it stood when the court imposed probation. Under
§ 3553(a)(4)(A), that takes the court back to the probation office’s recommendations,
the parties’ objections, and the § 3553(a) factors, including a defendant’s history,
characteristics, and conduct pre-probation-sentence. The Introduction to Chapter
Seven of the Sentencing Guidelines Manual sums it up well: “Under current law, if
the court finds that a defendant violated a condition of probation, the court may . . .
revoke probation and impose any other sentence that initially could have been
imposed.” U.S.S.G. ch. 7, pt. A, background (emphasis added).
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 9

-- 9 of 30 --

10
As for the first step here, the district court had already announced that a 51-
month sentence of imprisonment was the appropriate sentence for Mr. Moore’s
crime. It did so after considering Mr. Moore’s pre-probation-sentence conduct and
the § 3553(a) factors. R. vol. 1 at 66 (“Fifty-one months is what the Government’s
asking. You can take that sentence . . . be out of here today and it’s behind you, start
your sentence.”). And because the district court had all this information when it
sentenced Mr. Moore to probation, it locked itself into 51 months’ imprisonment as
the “sentence that could initially have been imposed.”
At the second step, and separately, as laid out in United States v. Kelley, 359
F.3d 1302, 1306 (10th Cir. 2004), a district court must apply the policy statements in
Part B—Probation and Supervised Release Violations—of Chapter Seven of the
Sentencing Guidelines to impose any penalty “for the violation of the judicial order
imposing supervision.” U.S.S.G. ch. 7, pt. B, introductory cmt. Indeed, Chapter
Seven of the Sentencing Guidelines provides its own sentencing grid (which yielded
the 5-to-11-month advisory term for Mr. Moore’s probation violation). So at this
second step, the district court must consider the § 7B1.4 sentencing grid for the
probation violation—not the sentencing guidelines for the underlying offense. See
Kelley, 359 F.3d at 1306 (“[Section] 3553(a)(4)(A) has no application when a
violation of the defendant’s conditions of supervised release is at issue; in such cases
the relevant consideration under § 3553(a)(4) is the Chapter 7 policy statements
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 10

-- 10 of 30 --

11
referenced in § 3553(a)(4)(B).”). 8 Thus, a district court must consider Chapter 7’s
non-binding policy statements (and, more specifically, § 7B1.4) referenced in
§ 3553(a)(4)(B) when it imposes a sentence for violating probation or supervised
release conditions. 9 Id.
Besides relying on the plain statutory text, Kelley recited § 3553(a)(4)’s
legislative history: “The Sentencing Commission proposed adding subsection
(a)(4)(B) to clarify that revocation decisions should be guided by guidelines and
policy statements issued by the commission specifically for that purpose, not by the
guidelines that were applicable to the defendant’s underlying offense.” Id. (citing 136
Cong. Rec. S14894–95 (daily ed. Oct. 10, 1990)). Thus, “Congress clearly intended
that these guidelines or policy statements, rather than those applicable to initial
sentencing, be used by courts when sanctioning probation (or supervised release)
violators.” Id. (quoting 136 Cong. Rec. S14895 (daily ed. Oct. 10, 1990)).
In short, when revoking probation and resentencing under § 3565(a)(2), the
Sentencing Guidelines and Kelley require district courts to undertake a two-step
8 If a district court decides to revoke probation and resentence a defendant,
§ 3553(a)(4)(A) directs the court to the sentencing-guideline range for the underlying
offense. In contrast, § 3553(a)(4)(B) applies “in the case of a violation of probation
or supervised release” and directs courts to consider “the applicable guidelines or
policy statements issued by the Sentencing Commission.”
9 On the other hand, when a court revokes supervised release, it has no need to
impose a sentence on the underlying crime—it has already done so, and the defendant
has served the sentence. So it has no reason to consider the underlying offense’s
guideline range under § 3553(a)(4)(A). See Kelley, 359 F.3d at 1306. But when
revoking probation, § 3553(a)(4)(A) does apply.
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 11

-- 11 of 30 --

12
analysis. First, they must consider the recommended guideline range in a PSR and
impose a sentence for the originally charged crime based only on a defendant’s pre-
probation conduct. And second, they must consider Chapter 7’s policy statements and
sentence a defendant for the probation violation based only on the defendant’s post-
probation conduct. 10
Here, nothing in the record suggests that either the district court or the parties
undertook the needed two-step analysis. At the revocation hearing, the parties and the
probation office referenced the 5-to-11-month range set forth in § 7B1.4. And in turn,
the district court simply latched onto its promised 84-month sentence.
We are left to guess as to how the district court arrived at its 84-month
sentence. Did the court vary upward to 84 months from § 7B1.4’s advisory range of 5
to 11 months? Or did it vary upward from the 51-to-63-month advisory guideline
range for Mr. Moore’s underlying robbery? Or did it impose unspecified sentences
for each category consecutively for a total of 84 months? The last alternative appears
unlikely since the district court didn’t sort Mr. Moore’s pre- and post-probation
conduct this way. All this uncertainty defeats meaningful appellate review.
Because Mr. Moore has shown error that is plain, we move to the final two
prongs of the plain-error analysis. Under prong three, for Mr. Moore to demonstrate
that his “substantial rights” were affected, he must show a “reasonable probability”
10 Obviously, a district court could choose to impose as part of its sentence, for
the originally charged crime or the probation violation, a term of 0 months’
imprisonment, subject to our review.
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 12

-- 12 of 30 --

13
that the error altered his sentence. See United States v. Dazey, 403 F.3d 1147, 1175
(10th Cir. 2005). Here, there is such a reasonable probability because it’s unclear
what sentence the court would have imposed after explaining its two-step analysis at
sentencing. See Sabillon-Umana, 772 F.3d at 1335.
For the fourth prong of plain-error analysis, Mr. Moore must demonstrate that
the error “affects the fairness, integrity, or public reputation of judicial proceedings.”
Id. at 1333. We conclude this prong is met as well because citizens would have a
diminished view of the judicial process and its integrity if “courts refused to correct
obvious errors of their own devise that threaten to require individuals to linger longer
in federal prison than the law demands[.]” Id.
In sum, Mr. Moore has shown that the district court plainly erred when it
sentenced him. 11
CONCLUSION
Because the district court’s sentence-in-advance feature renders the sentence
procedurally unreasonable, we vacate Mr. Moore’s sentence and remand for
resentencing.
11 Because Mr. Moore has shown plain procedural error, we may remand
without considering his substantive-reasonableness challenge. United States v.
Morgan, 635 F. App’x 423, 447 (10th Cir. 2015).
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 13

-- 13 of 30 --

United States v. Moore, Case No. 20-3171
BACHARACH, J., dissenting
This appeal stems from Mr. Jamaryus Moore’s effort to avoid any
prison time after pleading guilty to armed robbery. See 18 U.S.C.
§ 1951(a). He faced a guideline range of 51 to 63 months’ imprisonment.
Despite this guideline range, Mr. Moore requested a sentence of time
served (nine months and five days), which would prevent any further
imprisonment.
The district court responded by stating that it would consider
probation, which would let Mr. Moore avoid any further imprisonment. But
the court concluded that probation would be suitable only if it included a
strong deterrent to prevent violation of the conditions. So the court
responded to Mr. Moore’s request by giving him two alternatives. In one,
he could get probation; but any violation would trigger a prison sentence
of at least 84 months. The other option was a straightforward sentence of
51 months’ imprisonment, which represented the floor of the guideline
range.
Mr. Moore chose probation, knowing that any violation would result
in a prison term of at least 84 months. With that knowledge, he accepted
the conditions and violated them anyway, leading the district court to
revoke probation and impose the promised sentence of 84 months’
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 14

-- 14 of 30 --

2
imprisonment. On appeal, Mr. Moore challenges the procedural and
substantive reasonableness of the sentence.
The majority reverses, concluding that the district court committed
plain error in imposing the sentence. In my view, however, the alleged
error isn’t reviewable because Mr. Moore knowingly invited the sentencing
terms in order to obtain an extraordinary downward variance—going from
51 months to zero. Even if we were to disregard Mr. Moore’s role in asking
the district court to do what it did, the appellate challenge would fail under
the plain-error standard because the alleged error wouldn’t seriously affect
the fairness, integrity, or public reputation of the judicial proceedings.
1. Mr. Moore agreed to the sentencing terms, knowing that he’d get
a prison sentence of at least 84 months if he violated any
condition.
Mr. Moore chose probation in the course of three hearings.
At the first sentencing hearing, the court found a guideline range of
51 to 63 months’ imprisonment. Based on this guideline range, the
government requested a sentence of 51 months’ imprisonment. Mr. Moore
countered by proposing time served plus supervised release, explaining
that he needed to learn “how to be an adult.” R. vol. 1, at 48.
The court balked at Mr. Moore’s proposal, but expressed a
willingness to forgo a prison term. To forgo a prison term, however, the
court said that Mr. Moore needed to know that a violation would lead to a
long prison term. Id. at 61. Mr. Moore responded by proposing a six–month
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 15

-- 15 of 30 --

3
continuance of the sentencing, suggesting that the extra time would allow
him to prove that he would comply with the conditions. Id. at 63. The court
agreed but warned Mr. Moore that a violation of “any conditions” would
trigger a prison sentence of at least 84 months. Id. at 66. The court twice
asked Mr. Moore if he was willing to accept this consequence of a
violation, and Mr. Moore responded “yes” each time. Id. at 67. The court
also asked Mr. Moore’s attorney for any objections, and he had none.
At the second sentencing hearing, the parties agreed to continue the
proceedings for another six months. When the six–month period ended, the
court would impose the sentence. Mr. Moore said twice that he understood
and accepted that if he violated any conditions, he would receive a prison
sentence of at least 84 months. Mr. Moore’s attorney added: “Mr. Moore
ha[d] made it clear . . . that he want[ed] this opportunity, knowing the
enhanced penalties that he [was] looking at were he to fail.” R. vol. 3, at
15. The court then continued the sentencing for another six months.
When the court reconvened, the court again stated that if Mr. Moore
violated the terms, the prison sentence could range from 84 months to 20
years. Mr. Moore’s attorney responded that
 his client understood that this deal would “give him a constant
reminder that . . . he may go to federal prison for several years”
and
 the risk of this penalty was “another thing that we can put in
place to help him.”
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 16

-- 16 of 30 --

4
Id. at 56. With Mr. Moore’s acceptance of the sentencing terms, the court
imposed four years of probation with conditions.
Almost a year later, Mr. Moore was arrested for violating terms of
his probation involving housing and travel. The alleged violations were
minor, characterized as Grade “C.” In light of the agreed terms, however,
the court sentenced Mr. Moore to 84 months in prison. Mr. Moore objected
to the length of the sentence, but the court overruled the objection. This
appeal followed.
2. Mr. Moore invited any possible error by endorsing the sentencing
terms, knowing that a violation of conditions would trigger a
prison term of at least 84 months.
Mr. Moore invited the alleged errors by endorsing the sentencing
terms, which included a condition requiring a prison term of at least 84
months upon revocation for any violation. See United States v. Mancera-
Perez, 505 F.3d 1054, 1059 (10th Cir. 2007) (When a “defendant
affirmatively endorses the appropriateness of the length of the sentence
before the district court, we conclude that if[] there was error, it was
invited and waived.”). In hearings held over the course of a year, Mr.
Moore and his counsel repeatedly stated that they had understood and
agreed to a prison sentence of at least 84 months upon a violation of any
conditions. See, e.g., R. vol. 3, at 15 (“Mr. Moore has made it clear to me
that he wants this opportunity, knowing the enhanced penalties that he is
looking at were he to fail.”). Mr. Moore’s attorney not only accepted the
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 17

-- 17 of 30 --

5
sentencing terms but acknowledged the helpfulness of stiff consequences
for a violation, explaining that the threat of a long sentence would help Mr.
Moore stay in compliance. See pp. 3–4, above.
Given these warnings and statements of approval, the district court
could reasonably understand that Mr. Moore not only had approved the
sentencing terms but also had considered the potential 84-month prison
term as “a constant reminder” and something “to help him.” R. vol. 3, at
56; see Mancera-Perez, 505 F.3d at 1057 n.3 (“[I]t [is] unjust and a
perversion of the integrity and proper administration of justice to allow a
defendant affirmatively to support the reasonableness of his sentence
before the district court and then to challenge the reasonableness of that
sentence on appeal.”).
Mr. Moore argues that he didn’t invite the alleged errors because the
sentencing terms had originated with the district court. Of course, the
district court offered Mr. Moore the second sentencing option (probation
with a sentence of at least 84 months for any violation) in response to his
request for time served. See p. 1, above. But let’s assume that the
sentencing terms had originated with the district court. That assumption
doesn’t matter because we’ve never confined invited error to rulings
proposed by the defendant. To the contrary, we’ve found invited error
when the defendant endorses a ruling in district court and later challenges
that ruling. E.g., United States v. Robinson, 993 F.3d 839, 849 (10th Cir.
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 18

-- 18 of 30 --

6
2021) (concluding that an alleged error was invited when a party agreed to
jury instructions and later challenged them); United States v. Cornelius,
696 F.3d 1307, 1319–20 (10th Cir. 2012) (same); John Zink Co. v. Zink,
241 F.3d 1256, 1259 (10th Cir. 2001) (concluding that an alleged error was
invited when the plaintiff agreed to use the district court’s statements to
interpret an injunction and later challenged that use). A party can thus
invite the error by endorsing a ruling proposed by others. See, e.g., United
States ex rel. Bahrani v. ConAgra, Inc., 624 F.3d 1275, 1284 (10th Cir.
2010) (finding invited error when the plaintiff agreed to the defendant’s
motion to bifurcate and later challenged bifurcation). Mr. Moore invited
any possible error by repeatedly accepting and endorsing the sentencing
terms.
The majority agrees that Mr. Moore chose probation with the
knowledge that he’d get a prison term of at least 84 months if he were to
violate any probationary condition. But the majority declines to apply the
invited-error doctrine based on its characterization of the sentencing terms
as “a ‘sentence-in-advance system.’” Maj. Op. at 6–7. In my view, the
majority’s approach conflates invited error with the merits. The imposition
of an alleged “sentence-in-advance system” might bear on the existence of
an error, but not on whether Mr. Moore had invited that error.
If an error existed, Mr. Moore would have invited that error by
endorsing probation even though any violation would subject him to a
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 19

-- 19 of 30 --

7
prison term of 84 months or more. After repeated warnings, Mr. Moore
knowingly embraced the sentence terms in order to obtain a sentence of
probation. Given the warnings and defense counsel’s observation that the
threat of an 84-month sentence would help Mr. Moore, I wouldn’t
disregard his invitation for the district court to do precisely what it did.
Mr. Moore’s invitation of the alleged error should end our inquiry.
3. Even if Mr. Moore hadn’t invited the alleged error, it wouldn’t
have seriously affected the fairness, integrity, or public
reputation of the judicial proceedings.
Mr. Moore concedes that he didn’t present the district court with his
present challenge to the sentence. So even in the absence of invited error,
Mr. Moore would have incurred a heavy burden under the plain-error
standard. See United States v. Uscanga-Mora, 562 F.3d 1289, 1293 (10th
Cir. 2009) (stating that the plain-error standard applies when the defendant
fails to make procedural objections at sentencing); United States v.
Dominguez Benitez, 542 U.S. 74, 82 (2004) (stating that the defendant
bears the burden of establishing plain error). Even obvious errors don’t
satisfy this burden unless they “seriously affect[] the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Wireman, 849
F.3d 956, 962 (10th Cir. 2017) (quoting United States v. Marquez, 833
F.3d 1217, 1221 (10th Cir. 2016)).
To assess the fairness, integrity, or public reputation of the
proceedings, we should consider not only the eventual revocation sentence
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 20

-- 20 of 30 --

8
but also the initial sentence, which had provided Mr. Moore with an
extraordinary opportunity. At that time, Mr. Moore was facing a guideline
range of imprisonment for 51–63 months. But the district court agreed to
allow Mr. Moore to avoid any prison time if he just complied with the
conditions of his probation.
The district court didn’t coerce or even push Mr. Moore. To the
contrary, the court warned Mr. Moore three times that if he violated any of
the conditions, he would go to prison for at least 84 months.
The first warning came when the court responded to defense
counsel’s request to continue the sentencing to give Mr. Moore an
opportunity to avoid any prison time. The court explained that to make this
opportunity meaningful, a violation of any conditions would require a
severe prison sentence. The court selected an 84-month term as the
minimum if Mr. Moore were to violate any conditions. The court then
asked Mr. Moore if he was “willing to take that chance in order to prove
that [he could] turn [his] life around[.]” R. vol. 1, at 67. Mr. Moore
responded: “Yes, sir.” Id.
The second warning came nine days later, when the court conducted
another hearing. The court asked Mr. Moore again whether he understood
that if he chose to avoid any prison time, a violation of any conditions
would result in a prison sentence of at least 84 months:
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 21

-- 21 of 30 --

9
Do you understand that if you just go forward with the
sentencing that was already scheduled, I’m prepared to give you
a low-end guideline sentence, which is what the Government
argued for, just over four years; but if I were to go through with
this plan to delay sentencing and give you a trial run on this
release program, if you want to call it that, then from the moment
you step out the door of this courtroom, if you violate any of the
conditions that I set for you, then the starting point for your
sentence is seven years, and it may get worse, depending on how
bad you violate the conditions.
Do you understand that?
R. vol. 3, at 13.
Mr. Moore answered: “Yes, sir.” Id.
The third warning came minutes later. The court again questioned
Mr. Moore, explaining that
 the conviction for armed robbery was serious and
 the judge didn’t want to risk the safety of others.
Id. at 18–19. With this explanation, the court repeated that a violation of
any condition would trigger a minimum prison sentence of 84 months. Id.
at 8–9. The court again asked Mr. Moore if he was “sure [he was] up for
it,” and Mr. Moore again replied “Yes, sir.” Id. at 9.
In summary, Mr. Moore said three times that he understood the
consequence of a violation and agreed to it. This wasn’t gratuitous. In
exchange, Mr. Moore obtained an extraordinarily lenient sentence,
avoiding any prison time despite a guideline range of 51–63 months. In
these circumstances, few members of the public would question the
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 22

-- 22 of 30 --

10
fairness, integrity, or public reputation of the sentencing proceedings.
Indeed, as Mr. Moore acknowledges, “[t]he first (and understandable)
thought from anyone reviewing these events might be, ‘Moore made a deal,
he broke the deal, and he got exactly what he was warned he might get
under the deal.’” Appellant’s Opening Br. at 8. In my view, Mr. Moore
accurately predicts public reaction to his violation of conditions after
obtaining an extraordinary opportunity to avoid any prison time for armed
robbery.
This is not the first time that we’ve addressed the fairness, integrity,
or public reputation of the proceedings when a defendant agrees to a
lenient sentence after being warned that a violation of any condition would
automatically result in a substantial prison term. For example, in United
States v. Rausch, 638 F.3d 1296 (10th Cir. 2011), 1 the defendant obtained
an attractive opportunity to avoid any prison time for a serious crime
(possessing child pornography). Id. at 1298. The guideline range called for
a prison term of 97 to 121 months. Id. But the court imposed a sentence of
time served (which consisted of just one day in prison) and a lifetime term
of supervised release. Id. The defendant violated the supervised-release
terms by viewing adult pornography. Id. Despite the violation, the court
1 We later overruled Rausch on other grounds. United States v.
Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017) (en banc); see note 3,
below.
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 23

-- 23 of 30 --

11
declined to impose any prison time. But the court warned the defendant
that if he again violated any of the conditions, he would get the statutory
maximum of two years in prison. Id. at 1299.
The Rausch defendant violated the conditions a second time and
faced a petition to revoke his conditions. Id. Like Mr. Moore, the Rausch
defendant committed a relatively minor violation (Grade C) of his
conditions. See United States v. Rausch, No. 1:07-cr-00497-JLK,
Transcript of Hearing on Revocation of Supervised Release, ECF Doc. No.
92, at 8 (D. Colo. May 13, 2010). 2 Though the violation was relatively
minor, the court carried out its promise, revoking the conditions and
ordering two years in prison. Rausch, 638 F.3d at 1299. The defendant
appealed, arguing that the district court had plainly erred by automatically
ordering the two-year prison term. Id.
We held that even if the district court had committed an obvious
error, it would not have seriously affected the fairness, integrity, or public
reputation of the judicial proceedings. Id. at 1301. We reasoned that the
defendant had obtained multiple warnings and the district court had simply
carried out its agreement with the defendant:
This was [the defendant’s] third sentencing appearance
before this district judge and his second for alleged violations of
supervised release. The court had warned him as far back as the
preliminary scheduling hearing regarding the first release
2 We can take judicial notice of this document. United States v. Smalls,
605 F.3d 765, 768 n.2 (10th Cir. 2010).
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 24

-- 24 of 30 --

12
violations that additional violations would result in prison time.
Moreover, the court specifically told [the defendant] that it
would impose the two-year statutory maximum upon further
violations as far back as the first revocation hearing when it also
personally invited [the defendant] to speak in mitigation of
sentence. At both hearings, [the defendant] expressly
acknowledged the court’s conditions, stating “yes, sir” after the
court’s warnings. Accordingly, when [the defendant] again
violated the terms of his supervised release, the district court
made good on its agreement with him and imposed a two-year
prison sentence.
Id.
Like the Rausch defendant, Mr. Moore obtained an attractive
opportunity to avoid prison. Both the Rausch defendant and Mr. Moore
were able to avoid any prison time, but were warned that any violation
would automatically result in a hefty prison term. The Rausch defendant
was promised the statutory maximum of 24 months in prison; Mr. Moore
was promised at least 84 months in prison. In Rausch, an error wouldn’t
seriously affect the fairness, integrity, or public reputation of the judicial
proceedings because the district court had simply “made good on its
agreement” with the defendant. Id. The same is true here. 3
3 We later addressed the fairness, integrity, or public reputation of the
proceedings when the district court fails to permit allocution. United States
v. Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017) (en banc). There
we said that at the initial sentencing, a failure to permit allocution would
ordinarily undermine the fairness, integrity, or public reputation of the
proceedings. Id. at 1142. In doing so, however, we distinguished
resentencings like the one in Rausch. We explained the continued vitality
of Rausch because the failure to permit allocution involved a resentencing
based on a violation of conditions (rather than the initial sentence):
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 25

-- 25 of 30 --

13
Mr. Moore argues that public perception of the judiciary would be
undermined by allowing his sentence to stand despite an alleged statutory
violation. But we consider the fairness, integrity, or public reputation of
the proceedings only when the district court has otherwise committed an
obvious violation of federal law. See, e.g., United States v. Dazey, 403
F.3d 1147, 1179 (10th Cir. 2005) (stating that not “all constitutional
Booker errors that affect substantial rights also undermine the integrity,
In some cases, a district court makes clear—following an initial
opportunity to allocute—that it is certain to impose a specific
sentence if a defendant violates supervised release. For example,
in Rausch, the defendant repeatedly violated the terms of his
supervised release. At his first revocation hearing, the court
invited the defendant to allocute and warned that it would impose
a two-year prison term upon any further violations. After the
defendant again violated the terms of supervised release, the
court sentenced him as promised without inviting further
allocution. Other circuits have declined to remand under similar
circumstances.
Id. at 1142–43 (citing Rausch, 638 F.3d at 1298–99); see also United
States v. Pitre, 504 F.3d 657, 663 (7th Cir. 2007) (concluding that the
failure to permit allocution at a hearing to revoke supervised release did
not seriously affect the fairness, integrity, or public reputation of the
judicial proceedings because the defendant had agreed to remain on
supervised release after being warned that any violation would
automatically result in revocation and an 18–month prison sentence), cited
with approval in Bustamante-Conchas, 850 F.3d at 1143; United States v.
Reyna, 358 F.3d 344, 352–53 (5th Cir. 2004) (en banc) (same when the
district court carried out an agreement to impose a 12–month prison
sentence for violating a term of supervised release), cited with approval in
Bustamante-Conchas, 850 F.3d at 1143. As in these cases, we’re
addressing an alleged error in resentencing rather than in the initial
sentence. See Maj. Op. at 9–10.
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 26

-- 26 of 30 --

14
fairness, or public reputation of judicial proceedings”). So a legal violation
in itself could not undermine the fairness, integrity, or public reputation of
the proceedings.
Mr. Moore endorsed not only the sentencing terms but also the
promise of stiff consequences for a violation, stating that those potential
consequences would help him remain in compliance. In these
circumstances, the district court’s fulfillment of its word would not
seriously affect the fairness, integrity, or public reputation of the judicial
proceedings. So even if an error were otherwise obvious, Mr. Moore
wouldn’t have satisfied the plain-error test.
4. The district court did not abuse its discretion on the substantive
reasonableness of the sentence.
Mr. Moore argues that the sentence is not only procedurally
unreasonable but also substantively unreasonable 4 because
 the 84-month term exceeded the bounds of permissible choice
and
 the balance of factors was arbitrary, capricious, or manifestly
unreasonable.
The majority does not address this challenge because it reverses on
procedural reasonableness. If we were to affirm on procedural
4 Mr. Moore also argues that an upward departure would have been
unreasonable. But the parties agree that the court deviated from the
guideline range through a variance rather than a departure. See United
States v. Sells, 541 F.3d 1227, 1237 n.2 (10th Cir. 2008) (discussing the
difference between a departure and a variance).
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 27

-- 27 of 30 --

15
reasonableness, however, we’d review the substantive reasonableness of
the sentence under the abuse-of-discretion standard, considering the
totality of circumstances. United States v. Balbin-Mesa, 643 F.3d 783, 787
(10th Cir. 2011); United States v. Alvarez-Bernabe, 626 F.3d 1161, 1165
(10th Cir. 2010).
Mr. Moore and the government agreed that the applicable guideline
range was five to eleven months based solely on the revocation of
probation. But the court could “impose any other sentence that initially
could have been imposed” upon revocation of probation. U.S. Sent’g
Guidelines Manual ch. 7, pt. A, Introduction 2(a) (U.S. Sent’g Comm’n
2018). The guidelines served merely as recommendations. 5
In considering these recommendations, the court applied the statutory
factors and accounted for Mr. Moore’s extraordinary opportunity to avoid
prison despite the existence of a stiff guideline range. See, e.g., United
States v. Kippers, 685 F.3d 491, 499–501 (5th Cir. 2012) (relying in part
on the district court’s previous leniency in upholding the substantive
5 Mr. Moore’s eventual sentence matched the median sentence for his
crime of armed robbery: In 2019, when the sentencing terms were struck,
the national median sentence for federal robbery was 84 months’
imprisonment for defendants falling within Mr. Moore’s criminal-history
category of III. 2019 Sourcebook of Federal Sentencing Statistics 81 (U.S.
Sent’g Comm’n 2019); see United States v. Sample, 901 F.3d 1196, 1201
(10th Cir. 2018) (using the Sentencing Commission statistics as part of the
sentencing inquiry under 18 U.S.C. § 3553(a)(6)).
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 28

-- 28 of 30 --

16
reasonableness of a four-year prison term when resentencing the
defendant). In similar circumstances, we have upheld the reasonableness of
sentences that substantially exceeded the guideline ranges. See United
States v. Jones, 678 F. App’x 626, 630 (10th Cir. 2017) (unpublished)
(rejecting a challenge to the substantive reasonableness of a 48–month
sentence for a second violation of supervised release when the guideline
range for the violation was 6 to 12 months but the underlying crimes of
conviction carried revocation sentences of 4 and 2 years); 6 see also
Kippers, 685 F.3d at 500–501 (upholding the substantive reasonableness of
a 48–month prison sentence when the top of the guideline range was 9
months for revocation of probation because the offense leading to
revocation of the defendant’s probation had been “particularly violent”);
United States v. Verkhoglyad, 516 F.3d 122, 128, 134–36 (2d Cir. 2008)
(upholding the substantive reasonableness of a 57–month prison sentence
when the top of the guideline range was 11 months for revocation of
probation, but the top of the guideline range for the underlying crime of
conviction was 57 months).
5. Conclusion
I would affirm the sentence. In my view, Mr. Moore knowingly
invited the sentencing terms in order to avoid any prison time after
6 Jones is persuasive but not precedential. See 10th Cir. R. 32.1(A).
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 29

-- 29 of 30 --

17
pleading guilty to armed robbery. Mr. Moore knew the risks because the
district court had repeatedly warned him that any violation would trigger a
prison term of at least 84 months. With these warnings, the court had
repeatedly asked Mr. Moore—in hearing after hearing—whether he wanted
to go forward with the sentencing terms despite the risk of a prison
sentence of 84 months or more for any violation. Mr. Moore not only
agreed each time, but his attorney pointed out that the stiff consequences
of a violation would help Mr. Moore by keeping him in compliance. So in
my view, Mr. Moore knowingly invited any potential error, foreclosing his
appellate challenge.
Even if we were to overlook his invitation of the alleged error, the
district court’s enforcement of the sentencing terms—after the repeated
warnings to Mr. Moore—wouldn’t seriously affect the fairness, integrity,
or public reputation of the judicial proceedings.
Because Mr. Moore invited any potential error and failed to satisfy
the test for plain error, I respectfully dissent.
Appellate Case: 20-3171 Document: 010110670002 Date Filed: 04/12/2022 Page: 30

-- 30 of 30 --