United States of America v. Kevin Bordeaux

United States Court of Appeals
For the Eighth Circuit
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No. 23-2988
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United States of America
Plaintiff - Appellee
v.
Kevin Bordeaux
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota
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Submitted: June 14, 2024
Filed: July 17, 2024
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Before LOKEN, ERICKSON, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Kevin Bordeaux pled guilty to assault with a dangerous weapon; using and
carrying a firearm during and in relation to a crime of violence; and assaulting,
resisting, and impeding a federal officer. The district court mistakenly sentenced
Bordeaux at an offense level of 29 and a Criminal History Category of III, resulting
in a United States Sentencing Guidelines Manual (Guidelines) range of 108 to 135
months. Had the Guidelines been properly applied, the court would have sentenced

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Bordeaux at an offense level of 28 and a Criminal History Category of III, resulting
in a Guidelines range of 97 to 121 months. Given this miscalculation, we remand to
the district court for resentencing under the correct Guidelines range.
I.
On the evening of July 6, 2022, Bordeaux got into a fight with his girlfriend,
Megan Hawk. Bordeaux pulled out a handgun and shot Hawk in the right hip.
Bordeaux then fled the scene in a vehicle with Carston Eagle Deer.
On the morning of July 8, 2022, law enforcement spotted Bordeaux’s vehicle
and attempted to make contact. But Bordeaux sped away, leading law enforcement
on a high-speed chase while he and Eagle Deer fired handguns at the pursuing
officers. Law enforcement managed to capture Bordeaux, and a federal grand jury
later indicted Bordeaux with numerous offenses.
Bordeaux pled guilty to Assault with a Dangerous Weapon, in violation of 18
U.S.C. §§ 113(a)(3) and 1153 (Count I); Using and Carrying a Firearm During and
in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A) (Count
III); and Assaulting, Resisting and Impeding a Federal Officer, in violation of 18
U.S.C. §§ 111(a), 111(b) and 18 U.S.C. § 2 (Count V).
The United States Probation Office’s Presentence Investigation Report (PSR)
calculated Bordeaux’s total offense level to be 29, and his Criminal History Category
to be IV, resulting in a Guidelines range of 121 to 151 months of imprisonment for
Counts I and V. The PSR also calculated the minimum term of imprisonment for
Count III to be 84 months, to be served consecutive to the sentence for any other
counts. Pertinent here, the PSR added a five-level enhancement to Count I for
discharging a firearm.
At the sentencing hearing, the district court sustained Bordeaux’s objection to
the addition of two criminal history points for commission of an offense while

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serving a criminal justice sentence, which reduced Bordeaux’s criminal history
points from eight to six and reduced his Criminal History Category from IV to III.
Ultimately, based on the sustained objection, the district court determined the
appropriate Guidelines range for Counts I and V was 108 to 135 months, based on
an offense level of 29 and a Criminal History Category of III. Bordeaux did not
object to the district court’s ultimate calculation.
The district court sentenced Bordeaux to 120 months of imprisonment on
Count I and 132 months of imprisonment on Count V, to be served concurrently.
The district court also sentenced Bordeaux to 84 months of imprisonment on Count
III, to be served consecutive to the sentences for Counts I and V. Bordeaux now
appeals.
II.
The government concedes the district court improperly calculated the
Guidelines range, resulting in a Guidelines sentence range of 108 to 135 months for
a total offense level of 29, rather than 97 to 121 months for the correct total offense
level of 28. The government contends, however, that any error did not prejudice
Bordeaux. We disagree.
Normally, we review departures from the Guideline range under an abuse of
discretion standard. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)
(en banc). But when the defendant fails to object to a purported error, we review
only for plain error. See United States v. Lovelace, 565 F.3d 1080, 1087 (8th Cir.
2009) (setting out standard for plain error review).
Under plain error review, we will reverse only when a defendant shows (1) an
error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects
the fairness, integrity, or public reputation of judicial proceedings. Id. To show that
an error affected one’s substantial rights, a defendant “must show a reasonable
probability that, but for the error, the outcome of the proceeding would have been

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different[.]” Molina-Martinez v. United States, 578 U.S. 189, 194 (2016) (internal
quotation marks omitted). “In most cases a defendant who has shown that the district
court mistakenly deemed applicable an incorrect, higher Guidelines range has
demonstrated a reasonable probability of a different outcome.” Id. at 200.
Miscalculated Guidelines ranges do not always affect a defendant’s
substantial rights. “There may be instances when, despite application of an
erroneous Guidelines range, a reasonable probability of prejudice does not exist,”
such as when “the district court thought the sentence it chose was appropriate
irrespective of the Guidelines range.” Id.; see also United States v. Henson, 550
F.3d 739, 741–42 (8th Cir. 2008) (government met its burden of showing no
substantial influence on sentence by showing the district court “would have arrived
at the same term of imprisonment absent the procedural error”).
There is no question the district court erred, and the error was plain.1 Thus,
our inquiry is limited to whether Bordeaux’s substantial rights were affected by the
district court’s miscalculation and whether the error affected the fairness and
integrity of the judicial proceedings. We conclude both factors are met.
1 The government concedes there was plain error. See Oral Argument at 14:09,
United States v. Bordeaux, No. 23-2988 (8th Cir. 2023), media-
oa.ca8.uscourts.gov/OAaudio/2024/6/232988.MP3. Under U.S.S.G. § 2K2.4, “[i]f
a sentence under this guideline is imposed in conjunction with a sentence for an
underlying offense, do not apply any specific offense characteristics for possession,
brandishing, use, or discharge of an explosive or firearm when determining the
sentence for the underlying offense.” U.S.S.G. § 2K2.4, cmt. n.4. Here, a sentence
“under this guideline” was imposed for the conviction under Count III. Because the
Count III sentence was imposed in conjunction with a sentence for Count I, the
district court should not have applied the specific offense characteristic for
possessing or discharging a firearm to the underlying offense. See United States v.
Bell, 477 F.3d 607, 615 (8th Cir. 2007) (observing the Guidelines “prohibit adding
gun-related offense characteristic enhancements for an offense underlying a § 924(c)
conviction . . . because the § 924(c) conviction already carries statutorily required
incremental punishment”).

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The 132-month sentence exceeded the correct Guidelines range by 11 months.
Had the district court known the correct Guidelines range, there is a “reasonable
probability” it would have sentenced Bordeaux within that range rather than to 132
months. The government claims the district court would have imposed the same
sentence irrespective of the Guidelines range. The record gives us no such
assurance. During the proceedings below, the district court specifically noted the
Guidelines numerous times, and it anchored its reasons for the sentence to them time
and again. For example, the district court emphasized that although it had the
authority to increase Bordeaux’s Criminal History Category “back up to IV,” it
asserted it was “not inclined to do that.” The district court also stated Bordeaux’s
Criminal History Score placed him at the top of Category III, which warranted
consideration of sentences at the upper end of that range. And although the district
court considered imposing consecutive sentences, it elected not to, deciding a
sentence at the top of the calculated range was “sufficient but not more than
necessary.” The district court’s repeated analysis of the appropriateness of
Bordeaux’s Criminal History Score and category suggests it relied heavily on the
Guidelines range when determining the appropriate sentence to impose. Thus, we
conclude there is a “reasonable probability” the district court would have imposed a
sentence within the correct range. Molina-Martinez, 578 U.S. at 201. This
miscalculation affected Bordeaux’s substantial rights.
The error also affected the fairness and integrity of the judicial proceedings.
As stated above, the district court’s miscalculation resulted in a significant increase
in the Guidelines range from 97 to 121 months to 108 to 135 months. Such an
increase seriously affected the fairness and integrity of the judicial proceedings. See
United States v. Campos, 79 F.4th 903, 914 (8th Cir. 2023) (observing that an
erroneous increase in the Guidelines range affects the fairness and integrity of
judicial proceedings); see also United States v. Bailey, 37 F.4th 467, 470 (8th Cir.
2022) (finding a two-level enhancement seriously affected the fairness of the
proceedings because the Guidelines range would have been lower absent the
enhancement).

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III.
There was a reasonable probability Bordeaux would have received a lower
sentence but for the erroneous Guidelines range calculation. Thus, this case is
remanded to the district court for resentencing under the lower and correct
Guidelines range.
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