United States of America v. Lamark Armond Combs, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 21-3448
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United States of America
Plaintiff - Appellee
v.
Lamark Armond Combs, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: April 14, 2022
Filed: August 12, 2022
[Published]
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Before SHEPHERD, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
Lamark Combs objected to certain facts in the presentence investigation
report. What usually happens next is that the government presents evidence and the
district court makes findings. This process got short-circuited here, so we vacate
and remand for resentencing.

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I.
Police found hundreds of sexually explicit images and videos on Combs’s
cellphone. Combs, who was 19 at the time, solicited them from younger girls. His
criminal behavior was not just limited to child pornography. He also talked several
of them into having sex with him, including one that was just 13.
Facing five child-pornography counts and one for enticing a minor, Combs
decided to enter into a plea agreement with the government. Of the six counts, he
pleaded guilty to three of them: two for receiving child pornography, each from a
separate victim, 18 U.S.C. § 2252(a)(2), (b)(1); and another for possessing it, id.
§ 2252(a)(4)(B), (b)(2).
Beyond those crimes, Combs maintained his innocence. When the
presentence investigation report said he was responsible for receiving pornographic
images from two others, Minor Victim 3 and H.P., he filed a written objection. The
report noted the objection and stated that the fact dispute remained unresolved.
At sentencing, the fact dispute never came up. Combs did not renew his
objection, the government did not present evidence that he had received sexually
explicit material from Minor Victim 3 or H.P., and the district court never made any
findings. Without ever resolving the factual dispute that the presentence
investigation report had flagged, the court sentenced him to 210 months in prison.
II.
“It is well established that a district court commits procedural error . . . by
basing a sentence on unproven, disputed allegations rather than facts.” United States
v. Richey, 758 F.3d 999, 1002 (8th Cir. 2014). Everyone agrees that Combs
specifically objected to receiving sexually explicit images from Minor Victim 3 and
H.P., meaning that the district court could “not rely on those facts unless the
government prove[d] them by a preponderance of the evidence.” United States v.

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Bowers, 743 F.3d 1182, 1184 (8th Cir. 2014) (citation omitted). The government
never did so, yet the district court sentenced Combs as if it had.
Despite the apparent error, the government asks us to affirm for two reasons.
First, in its view, Combs waived the objection. Second, it believes any procedural
error was harmless. It is wrong on both points.
A.
The transcript is clear that Combs never renewed his objection at sentencing.
The question is whether his failure to do so was waiver or forfeiture. If it was
waiver—“the intentional relinquishment or abandonment of a known right”—then
the district court would have had no obligation to address the objection. United
States v. Olano, 507 U.S. 725, 733 (1993) (emphasis added) (quotation marks
omitted); see Bowers, 743 F.3d at 1185 (“Because the objections were
withdrawn, . . . the district court did not err in relying on the factual statements set
forth in the PSR.”). But if he merely forfeited it, then plain-error review applies.
See United States v. Cramer, 962 F.3d 375, 380 (8th Cir. 2020); Fed. R. Crim. P.
52(b).
In our view, Combs forfeited it. A failure to renew an objection reflects
“inaction[,] . . . not acquiescence or assent.” Robinson v. Norling, 25 F.4th 1061,
1063 (8th Cir. 2022) (emphasis omitted) (defining forfeiture). At no point did
Combs withdraw his objection, either by directly saying so or through a blanket
statement that he had no issues with the presentence investigation report. See, e.g.,
United States v. Hipolito-Sanchez, 998 F.2d 594, 596 (8th Cir. 1993) (per curiam)
(relying on an explicit withdrawal); United States v. Replogle, 628 F.3d 1026, 1030
(8th Cir. 2011) (involving a statement that there were no objections despite
previously putting them in writing). Nor did he ever “acknowledg[e] that the facts
set forth in [it] were correct.” United States v. White, 447 F.3d 1029, 1032 (8th Cir.
2006). All he did was “fail[] to . . . timely assert[]” the objection a second time,

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which means that this is a classic case of forfeiture that calls for plain-error review.
Olano, 507 U.S. at 733 (quotation marks omitted).
B.
Plain-error review places the ball in Combs’s court. He must establish both
that the error was “clear or obvious” and that it “affected [his] substantial rights.”
Molina-Martinez v. United States, 578 U.S. 189, 194 (2016). If he can, we will
“exercise [our] discretion to correct the forfeited error if [it] seriously affects the
fairness, integrity[,] or public reputation of judicial proceedings.” Id. (quotation
marks omitted).
The government does not dispute that the error here was “clear or obvious.”
“It is well established that a district court commits procedural error” when it uses
disputed facts to sentence someone. Richey, 758 F.3d at 1002. Instead, the focus is
on the next step in the plain-error analysis: whether the procedural error affected
Combs’s substantial rights. Although the government’s position is that it did not,
we disagree.
Counting Minor Victim 3 and H.P. as exploited minors substantially increased
the advisory range, from 210 to 262 months without the error to 262 to 327 months
with it. See U.S.S.G. § 2G2.1, cmt. n.7 (explaining that “each minor exploited is to
be treated as a separate minor” regardless of whether he or she is “specifically cited
in the count of conviction or not”). It is true that the district court varied downward
to 210 months, the bottom of the no-error range. But we cannot rule out the
possibility that the court might have reduced the sentence even further if it had not
made the error. See Molina-Martinez, 578 U.S. at 201 (“Absent unusual
circumstances, [a criminal defendant] will not be required to show more [than this
possibility].”); see also Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907
(2018). We cannot speculate, in other words, about what “the district court might
have done.” United States v. Harris, 908 F.3d 1151, 1156 (8th Cir. 2018) (emphasis
added) (quoting Molina-Martinez, 578 U.S. at 201).

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A “failure to correct” the error “will [also] seriously affect the fairness,
integrity, and public reputation of judicial proceedings.” Rosales-Mireles, 138 S.
Ct. at 1911. As the Supreme Court has explained, a plain error like this one “is
precisely the type . . . that ordinarily warrants relief under Rule 52(b).” Id. at 1907.
We send the case back for resentencing, but leave it up to the district court to
determine whether to reopen the record for additional evidence on remand. See
United States v. Sorrells, 432 F.3d 836, 839 (8th Cir. 2005) (allowing the
government to present additional evidence “[b]ecause of the confusing context” of
the “objections”).
III.
We accordingly vacate Combs’s sentence and remand for resentencing.
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