United States of America v. Edres Montgomery

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0113p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDRES MONTGOMERY,
Defendant-Appellant.
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No. 20-1201
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 1:04-cr-20046-6—Thomas L. Ludington, District Judge.
Decided and Filed: May 24, 2021
Before: STRANCH, BUSH, and READLER, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Andrew N. Wise, FEDERAL COMMUNITY DEFENDER OFFICE, Detroit,
Michigan, for Appellant. Patricia Gaedeke, UNITED STATES ATTORNEY’S OFFICE,
Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
JOHN K. BUSH, Circuit Judge. The difference between waiver and forfeiture has long
bedeviled lawyers and judges alike. Lawyers often split the difference, using the terms
interchangeably or even offering a formulation like “my opponent waived and/or forfeited that
argument.” Sometimes they will also invoke invited error, which falls within the continuum
between forfeiture and waiver. But the terms have different meanings and, especially in criminal
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cases, different consequences. For Edres Montgomery, the difference is dispositive. At his
resentencing hearing, the district court applied the wrong Criminal History Category, placing
Montgomery in a higher Sentencing Guidelines range. Had Montgomery waived the right to
challenge that error, he would be stuck with the sentence he received under the incorrect range.
But he only invited the error, which means that we have discretion to review it if the interests of
justice demand that we do so. Here, they do. We therefore vacate Montgomery’s sentence and
remand for resentencing under the correct Guidelines range.
I.
In 2007, a jury convicted Montgomery of conspiracy to distribute cocaine or cocaine
base, distribution of cocaine base, and witness tampering. United States v. Montgomery, 358 F.
App’x 622, 625 (6th Cir. 2009). At the time, the conspiracy conviction required a mandatory
sentence of life in prison, on top of which he received a separate 360-month sentence for the
distribution count. Id. Then, three years later, Congress passed the Fair Sentencing Act of 2010,
which changed the sentencing scheme for offenses involving crack cocaine. United States v.
Boulding, 960 F.3d 774, 777 (6th Cir. 2020). But the Fair Sentencing Act did not make those
changes retroactive, so they did not help Montgomery. Id. More recently, in 2018, Congress
passed the First Step Act, which made the Fair Sentencing Act’s changes to crack-cocaine
offenses retroactive, allowing defendants like Montgomery to move for a reduced sentence. Id.
He did so in 2019, initially proceeding pro se.
In reviewing Montgomery’s motion, the district court had to re-calculate Montgomery’s
Guidelines range to ensure that it sentenced him under the Guidelines as they existed at the time
of resentencing. Id. at 784. It determined that he remained in Criminal History Category VI, but
that his base offense level had dropped for each offense, giving him a lower Guidelines range.
His new ranges were, according to the district court, 292–365 months for the conspiracy count
and 151–88 for the distribution count. After considering the relevant sentencing factors, the
district court granted Montgomery’s motion and varied downwards from those ranges, reducing
his sentences to 275 months for the conspiracy conviction and 145 months for the distribution
conviction. Montgomery now appeals, arguing that the district court plainly erred when it placed
him in Criminal History Category VI instead of category V. The government offers two

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arguments in response. First, it argues that Montgomery waived his right to challenge his
criminal history categorization. Second, it argues that the district court’s error was not plain
because the district court’s obligation to sentence Montgomery under the correct Guidelines
range was not clear.
II.
First, we must clarify the difference between waiver, invited error, and forfeiture and
explain their different consequences in the criminal law setting. As we have noted recently, our
cases discussing waiver and forfeiture are not a model of clarity. See United States v.
Petlechkov, 922 F.3d 762, 767 (6th Cir. 2019) (noting that our cases sometimes use the terms
interchangeably); United States v. Wooden, 945 F.3d 498, 503 (6th Cir. 2019) (same), cert.
granted on other grounds, 141 S. Ct. 1370 (2021). Our discussion of invited error fares no
better—we call it a “branch of the doctrine of waiver,” Harvis v. Roadway Exp., Inc., 923 F.2d
59, 61 (6th Cir. 1991), but we treat it more like “waiver-light,” giving ourselves discretion to
forgive it, see United States v. Savoires, 430 F.3d 376, 381 (6th Cir. 2005).
In the district court, both of Montgomery’s briefs used the Guidelines range that the
district court ultimately applied (292–365 months). His second supplemental brief also said that
he had a Criminal History Category of VI. We must determine whether that briefing waived his
challenge to the Criminal History Category, invited the error, or merely forfeited the argument.
A. THE DIFFERENT DOCTRINES
Waiver, invited error, and forfeiture are best understood as operating on a continuum.
At one extreme is waiver. “[W]aiver is the ‘intentional relinquishment or abandonment
of a known right.’” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)). A plea agreement, for example, typically waives an array of
rights. United States v. Smith, 960 F.3d 883, 886 (6th Cir. 2020). But waiver need not be quite
that direct. Take United States v. Jackson, 995 F.3d 476 (6th Cir. 2021). There, Jankie
Jackson’s attorney explicitly told the district court that he “couldn’t have, in good faith, objected
to his leadership role,” and therefore the leadership role enhancement was proper. Id. at 484.

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That is waiver. Id. Because a defendant can only waive a right that he knows of and actively
abandons, true waiver will be relatively rare. As such, it comes with the strictest consequences:
waiver “extinguishes an ‘error’ under Rule 52(b),” so we cannot review the supposed error at all.
Olano, 507 U.S. at 733; Jackson, 995 F.3d at 484 (“[W]e may not review waived claims at all.”
(quoting United States v. Hall, 373 F. App’x 588, 591–92 (6th Cir. 2010))).
Forfeiture is at the other end of the spectrum. It is the passive failure to make a timely
assertion of a right. Olano, 507 U.S. at 733. If a defendant fails to object to a district court’s
ruling at trial, for example, he forfeits the argument. See, e.g., United States v. Ford, 761 F.3d
641, 653 (6th Cir. 2014); see also Black v. United States, 561 U.S. 465, 474 (2010) (“[B]y
properly objecting to the honest-services jury instructions at trial, Defendants secured their right
to challenge those instructions on appeal.”). The same is true if a defendant fails to object to the
way the Sentencing Guidelines are applied to him. See United States v. Mabee, 765 F.3d 666,
671 (6th Cir. 2014).1 But in criminal cases, it is forfeiture in name only—Federal Rule of
Criminal Procedure 52(b) allows us to consider such unpreserved arguments for plain error. See
United States v. Simmons, 587 F.3d 348, 358 n.6 (6th Cir. 2009) (noting that an argument was
forfeited “only in the sense that the claim is subject to a more deferential standard of review on
appeal”).
Finally, covering much of the space in the middle is invited error. A litigant invites error
when he contributes in some way to the district court’s error without intentionally relinquishing
his rights. See United States v. Barrow, 118 F.3d 482, 490 (6th Cir. 1997) (discussing error that
the party “himself invited or provoked the court or the opposite party to make”). In Barrow, we
applied the invited-error doctrine to a defendant’s challenge to jury instructions to which he had
originally stipulated. Id. at 490–91. And in United States v. Thompson, we applied it when a
defendant “specifically recommended (along with the government) that the district court apply”
two sentencing enhancements. 509 F. App’x 449, 451–52 (6th Cir. 2012); see also United States
v. Jallad, 468 F. App’x 600, 607–08 (6th Cir. 2012). Because in such circumstances a defendant
1Some of our opinions have called the failure to object to a Guidelines calculation waiver, but we clarify
here that they seemingly meant forfeiture. See, e.g., Lanham v. United States, 4 F. App’x 313, 315 (6th Cir. 2001);
United States v. Saavedra-Ibanez, 247 F. App’x 724, 728–29 (6th Cir. 2007); see also Mabee, 765 at 673 (noting
that Lanham was incorrect to call the failure to object waiver).

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is more responsible for the district court’s error than when he merely forfeits an argument, but
has not made the conscious choice to waive the argument, the consequences fall in between those
for forfeiture and waiver. We do not review invited errors as a matter of course, but we are also
not foreclosed from reviewing them; instead, we review for plain error when “the interests of
justice demand” it. United States v. Howard, 947 F.3d 936, 945 (6th Cir. 2020) (quoting United
States v. Latham, 358 F. App’x 661, 664–65 (6th Cir 2009) (per curiam)). That crucial
difference means that although we have said that invited error is a branch of waiver, it is best to
keep the two analytically distinct.
Of course, there will be cases that sit on the hazy border between invited error and
waiver. In United States v. Aparco-Centano, for example, Aparco-Centano’s counsel explicitly
agreed that two of his prior offenses were aggravated felonies for sentencing purposes. 280 F.3d
1084, 1088 (6th Cir. 2002). Doing so, we said, waived his challenge to the district court’s
decision to treat them as such. Id. But we went on to say that we review “waived” arguments
when the interests of justice demand it. Id. That phrasing was imprecise—better stated, we
review invited errors when the interests of justice demand it, Barrow, 118 F.3d at 491; we do not
review waived arguments at all, Olano, 507 U.S. at 732–33. So were we wrong (or at least
inexact) to say that Aparco-Centano waived the challenge, or wrong to raise the possibility that
we could review it anyway? More likely it was the former—a labeling error on our part.
Nothing in our reasoning there shows that Aparco-Centano was aware that the statuses of his
prior crimes were subject to dispute. Thus, the situation in Aparco-Centano is better understood
as a case of invited error.
B. APPLICATION TO MONTGOMERY
Laying out the three doctrines makes clear where Montgomery’s incorrect briefing falls.
He did not intentionally relinquish a known right, as he would have to do to affirmatively waive
that right. See Olano, 507 U.S. at 733. But he did more than passively stand by as the district
court erred, so he did not just forfeit his challenge to the Guidelines calculation either. See
Mabee, 765 F.3d at 671. By telling the district court in his briefing that he was in Criminal
History Category VI, and that his Guidelines range was therefore 292–365 months, Montgomery

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No. 20-1201 United States v. Montgomery Page 6
invited the district court to reach those erroneous conclusions. We must therefore decide
whether the interests of justice demand that we consider the district court’s error.
III.
Whether the interests of justice demand that we review an invited error is left largely to
our discretion. Barrow, 118 F.3d at 491. We have said, for example, that the interests of justice
will typically favor reviewing an argument where the government and the defendant are equally
at fault and the defendant claims a violation of his constitutional rights. Id.; see also Howard,
947 F.3d at 945. But our discretion to review invited errors is not limited to constitutional
violations; we can review any error of sufficient gravity if failing to do so would result in
manifest injustice. See United States v. Demmler, 655 F.3d 451, 458–59 (6th Cir. 2011). Here,
we conclude that the interests of justice demand that we consider Montgomery’s challenge to the
district court’s Guidelines calculation.
First, Montgomery was no more culpable for the error than the government. They both
uncritically assumed that his Criminal History Category had not changed since his first
sentencing. That favors review. See Barrow, 118 F.3d at 491 (“Most importantly, assuming that
error occurred, the government was as much at fault for inviting the error as the defendant since
the parties stipulated to the same instructions.”). It also differentiates Montgomery’s case from
other Guidelines-related invited-error cases, like United States v. Hanna, where the district court
made the error “directly in response to Hanna’s urging that it take that very course.” 661 F.3d
271, 293 (6th Cir. 2011).
Second, the Supreme Court has offered instruction on the gravity of Guidelines-
calculation errors. In Rosales-Mireles v. United States, the Court took up the question whether a
district court erroneously placing a defendant in Criminal History Category VI instead of
Category V (as happened here) is the kind of error that “seriously affects the fairness, integrity,
or public reputation of judicial proceedings” for purposes of plain error analysis. 138 S. Ct.
1897, 1905–06 (2018) (quoting Olano, 507 U.S. at 736). The Court concluded that it was. Id. at
1908. It explained that “[t]he risk of unnecessary deprivation of liberty particularly undermines
the fairness, integrity, or public reputation of judicial proceedings in the context of a plain

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Guidelines error because of the role the district court plays in calculating the range and the
relative ease of correcting the error.” Id. At the end of the day, “who wouldn’t hold a rightly
diminished view of our courts if we allowed individuals to linger longer in prison than the law
requires only because we were unwilling to correct our own obvious mistakes?” Hicks v. United
States, 137 S. Ct. 2000, 2001 (2017) (mem.) (Gorsuch, J., concurring).
The Supreme Court’s logic in Rosales-Mireles applies with equal force in this context. It
is difficult to see how the interests of justice would be served by requiring Montgomery to linger
longer in prison because no one in the district court, the court itself included, noticed that the
way we calculate a defendant’s Criminal History Category had changed between his two
sentencings. It is true, as the government notes, that the sentence the district court imposed falls
within his correct Guidelines range. But the Court heard and rejected that same argument in
Rosales-Mireles, 138 S. Ct. at 1910, because the Guidelines range is the starting point for the
district court’s analysis. On remand, the district court can decide whether, starting from the
correct Guidelines range, a downward variance remains appropriate.
IV.
We review Montgomery’s challenge for plain error. To show plain error, a defendant
must satisfy four prongs: (1) error occurred; (2) that error was obvious; (3) it affected the
defendant’s substantial rights; and (4) it affected the fairness, integrity, or public reputation of
judicial proceedings. Mabee, 765 F.3d at 673–74. Montgomery has made that showing.
To the first prong, at Montgomery’s first sentencing, he received one extra criminal
history point for committing the offense for which he was being sentenced within two years of
release from prison. That point tipped him into Criminal History Category VI. But a few years
later, in 2010, the Sentencing Commission amended the Guidelines to eliminate that recency
penalty. U.S.S.G. Supp. App. C, Admt. 742 (effective Nov. 1, 2010). So, under the current
Guidelines, Montgomery would be in Criminal History Category V. And, for the second prong,
that error would have been readily apparent had anyone recalculated his Criminal History
Category before his new sentencing.

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No. 20-1201 United States v. Montgomery Page 8
For the third and fourth prongs, the Supreme Court has forcefully indicated that those
prongs typically favor correcting Guidelines errors. In Molina-Martinez v. United States, the
Court explained that “[t]he Guidelines’ central role in sentencing means that an error related to
the Guidelines can be particularly serious.” 136 S. Ct. 1338, 1345 (2016). For that reason, a
Guidelines error will affect substantial rights unless the record indicates that the district court
would have chosen the sentence it imposed regardless of the Guidelines range. Id. at 1346–47.
We have no such indication here. And, as we discussed above, the Court held in Rosales-
Mireles that a Guidelines error will typically satisfy the fourth prong of the plain error analysis.
138 S. Ct. at 1906–08. Both cases addressed the same Guidelines error we face—placing
someone in Criminal History Category VI instead of V. Id. at 1905; Molina-Martinez, 136 S. Ct.
at 1344.
The government’s sole argument in response is that even though the Guidelines error
itself was readily apparent, the district court’s obligation to apply the correct Guidelines range
was not. It cites our decision in United States v. Alexander, which explained that a sentence-
reduction hearing under the First Step Act does not require a de novo resentencing hearing.
951 F.3d 706, 708 (6th Cir. 2019). But there is a dramatic difference between requiring a district
court to re-weigh all aspects of the defendant’s circumstances, which Alexander rejected, and
applying the correct Guidelines range. The Guidelines are the “lodestar” of most federal
sentencing proceedings, Molina-Martinez, 136 S. Ct. at 1346, and correctly calculating the
Guidelines range is the starting point of the resentencing hearing, see Boulding, 960 F.3d at 783.
The government’s argument is therefore unpersuasive.
V.
For the above reasons, we vacate Montgomery’s sentence and remand for resentencing.

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