United States of America v. Ralph Joseph Celentano , Iii, Also Known As Ralph Joseph Celento, Iii

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 10, 2024 Decided January 21, 2025
No. 24-3016
UNITED STATES OF AMERICA ,
APPELLEE
v.
RALPH J OSEPH CELENTANO , III, ALSO KNOWN AS RALPH
J OSEPH CELENTO, III,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cr-00186-1)
Sarah Baumgartel, Assistant Federal Public Defender,
argued the cause for appellant. Barry D. Leiwant, Attorney-In-
Charge, entered an appearance.
T. Dietrich Hill, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Matthew M. Graves,
U.S. Attorney, and Chrisellen R. Kolb and Nicholas P.
Coleman, Assistant U.S. Attorneys.
Before: MILLETT and RAO, Circuit Judges, and ROGERS ,
Senior Circuit Judge.

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Opinion for the Court by Senior Circuit Judge ROGERS .
ROGERS , Senior Circuit Judge: Ralph Joseph Celentano,
III was convicted by a jury on six counts and acquitted on a
seventh count for unlawful conduct on January 6, 2021 at the
United States Capitol. He challenges his convictions on three
grounds and raises a series of challenges to his sentence. He
contends that the district court erred in instructing the jury first,
on his defense of another to Count One, which was prejudicial
also to his convictions on Counts Two, Five, and Six, and
second, on the knowledge requirement of 18 U.S.C. § 1752(a)
for Count Three. He further contends that his conviction on
Count Two must be vacated under the Double Jeopardy Clause
of the Fifth Amendment as a lesser included offense of Count
One. Finally, he contends that the district court’s errors in
calculating his Sentencing Guidelines range require
resentencing. For the following reasons, the court reverses
Celentano’s conviction on Count One, vacates his sentence and
remands for resentencing, and remands the case, except Count
Seven, to the district court for further proceedings.
I.
On January 6, 2021, as the Supreme Court and this court
have described, a crowd of supporters of then-President Donald
Trump broke through barriers, police lines, and windows,
assaulted law enforcement officers, and breached the United
States Capitol, forcing delay of the certification of electoral
votes pursuant to the Electoral Count Act for which both
Houses of Congress and the Vice President had convened. See
Fischer v. United States, 144 S. Ct. 2176, 2182 (2024); United
States v. Alford, 89 F.4th 943, 947 (D.C. Cir. 2024). Celentano
joined “an unruly mob” of protestors, Alford, 89 F.4th at 946,
on the West Terrace of the Capitol grounds, where he was
involved in altercations with uniformed law enforcement
officers, including linking arms with other protestors and

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marching into the police line, as well as pushing a law
enforcement officer.
Of particular relevance, Celentano forcibly shoved Officer
Kenrick Ellis off a ledge causing him to fall on top of other
officers about four or five feet below. Trial Tr. 1327-34 (June
9, 2023); Supp. Ex. 603. Officer Ellis testified that a protestor
who was being held had another officer in a chokehold and that
he was delivering “tactical blows to that individual’s arm, so
they would . . . release the officer.” Trial Tr. 856 (June 7, 2023).
In defense, Celentano testified that he saw “officers were
holding somebody in place and Officer Ellis was hitting
him . . . and he kept hitting him” around the neck. Trial Tr. 1171
(June 8, 2023); Trial Tr. 1329 (June 9, 2023). Celentano
explained that he was concerned because “strikes to the back of
the head kill people.” Trial Tr. 1171 (June 8, 2023). Celentano
testified that he gave Officer Ellis a forceful body shove from
behind in order to get him to stop. Trial Tr. 1334 (June 9, 2023).
Celentano acknowledged that he was 20 to 30 feet behind
Officer Ellis and could not see if the protestor being held was
male or female much less see the protestor’s hands or if the
protestor had a weapon. Id. at 1329-30. Celentano claimed that
he did not ask an officer for help to stop the beating because
“[i]t seemed like every time you walked up to a cop, he’d hit
you.” Id. at 1332.
A grand jury indicted Celentano on seven counts. Count
One charged Celentano with violation of 18 U.S.C. § 111(a) as
one who “forcibly assaults, resists, opposes, impedes,
intimidates, or interferes with any person . . . while engaged in
or on account of the performance of official duties . . . where
such acts involve physical contact with the victim of that
assault or the intent to commit another felony.” Count Two
charged Celentano with violation of 18 U.S.C. § 231(a)(3) for
“commit[ting] or attempt[ing] to commit any act to obstruct,
impede, or interfere with any . . . law enforcement officer
lawfully engaged in the lawful performance of his official

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duties incident to and during the commission of a civil
disorder.” Count Three charged Celentano with violation of 18
U.S.C. § 1752(a)(1) for “knowingly enter[ing] or remain[ing]
in any restricted building or grounds without lawful authority.”
Count Four charged Celentano with violation of 18 U.S.C.
§ 1752(a)(2) for “knowingly, and with intent to impede or
disrupt the orderly conduct of Government business or official
functions, engag[ing] in disorderly or disruptive conduct in, or
within such proximity to, any restricted building or grounds
when, or so that, such conduct, in fact, impedes or disrupts the
orderly conduct of Government business or official functions.”
Count Five charged Celentano with violation of 18 U.S.C.
§ 1752(a)(4) for “knowingly engag[ing] in any act of physical
violence against any person or property in any restricted
building or grounds.” Count Six charged Celentano with
violation of 40 U.S.C. § 5104(e)(2)(F) for “engag[ing] in an act
of physical violence in the Grounds or any of the Capitol
Buildings.” And Count Seven charged Celentano with
violation of 18 U.S.C. § 1512(c)(2) as one who “corruptly . . .
obstructs, influences or impedes any official proceeding, or
attempts to do so.”
The jury found Celentano guilty on six counts and not
guilty on Count Seven. Celentano and the government
disagreed on the jury instructions, including the defense of
another instruction, as well as the appropriate Guidelines range
at sentencing. The district court sentenced Celentano to 78
months of imprisonment on Count One, 60 months on Count
Two, 12 months on Counts Three, Four, and Five, and 6 months
on Count Six, to run concurrently for a total of 78 months of
imprisonment, as well as to 36 months of supervised release on
Counts One and Two. At sentencing, the district court judge
volunteered that he would have imposed the same sentence
based on only Celentano’s convictions on Counts One and Two.
Celentano appeals.

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II.
The district court, over defense objection, instructed the
jury on defense of another on Count One, 18 U.S.C. § 111(a) as
follows:
The Defendant has offered evidence that he
acted in defense of another. The use of force is
justified when a person reasonably believes that
force is necessary for the defense of another
against the immediate use of unlawful force.
To find that the defendant was justified in
using force against law enforcement officers, you
must find that the exercise of force by law
enforcement was unlawful, because it was
objectively unreasonable; that is, excessive,
viewed from the perspective of a reasonable law
enforcement officer.
If you find that the exercise of force by law
enforcement was unlawful, you may consider
whether the Defendant reasonably defended
another from that unlawful exercise of force.
In addition, if you find that the Defendant —
the person the Defendant asserts he was protecting
from imminent bodily harm was the initial
aggressor, the Defendant cannot rely on the right
of defense of another to justify his use of force.
A person may use a reasonable amount of
force in defense of another. A person may use an
amount of force that, at the time of the incident, he
actually and reasonably believes is necessary to
protect another from imminent bodily harm.
The question is not whether, looking back on
the incident, you believe that the use of force in
defense of another was necessary. The question is
whether the Defendant, under the circumstances as
they appeared to him at the time of the incident,

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actually believed another was in imminent danger
of bodily harm and could reasonably hold that
belief.
Defense of another may be considered as a
defense to Count 1 in the indictment, the count
we’ve been just talking about. The Defendant is
not required to prove that he acted in defense of
another. Where evidence of defense of another is
present consistent with this entire instruction, the
Government must prove beyond a reasonable
doubt that the Defendant did not act in defense of
another. If the Government has failed to do so, you
must find the Defendant guilty – I’m sorry – you
must find the Defendant not guilty on Count 1.
Trial Tr. 1413-15 (June 9, 2023) (emphases added). The district
court also instructed the jury to consider Celentano’s defense
of another defense on Counts Two, Five, and Six but only as to
his acts with respect to Officer Kenrick Ellis. Trial Tr. 1219-20
(June 8, 2023); Trial Tr. 1423-25 (June 9, 2023).
Celentano contends that the defense of another instruction
was erroneous and prejudicial in (1) directing consideration of
the use of force from the perspective of a law enforcement
officer rather than the defendant, and (2) requiring the jury to
find that the force used was actually excessive before
considering the defendant’s self-defense claim. Instead,
Celentano’s position is that the jury should be instructed to
“center on the defendant’s own ‘subjective perceptions,’”
Appellant’s Br. 37 (quoting Fersner v. United States, 482 A.2d
387, 391-92 (D.C. 1984)), and that to find him not guilty “it
should have been sufficient if Celentano sincerely and
reasonably believed [Officer] Ellis was using excessive force,”
id. at 38 (citing Jones v. United States, 555 A.2d 1024, 1027
(D.C. 1989)). Celentano also contends for the first time on
appeal that the jury instructions contained a similar error in
perspective for determining whether the third-party victim was

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the “initial aggressor.” Id. at 37 n.6 (citing Fersner, 482 A.2d
at 392). The court declines to consider this unpreserved claim
set forth in a footnote. See United States v. Abdus-Price, 518
F.3d 926, 934 (D.C. Cir. 2008) (citing District of Columbia v.
Air Fla., Inc., 750 F.2d 1077, 1084 (D.C. Cir. 1984)); Sugar
Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 93 n.3
(D.C. Cir. 2002).
The government’s position is that no instructional error
occurred because the law authorizes a law enforcement officer
to use force in enforcing the law and consequently the jury’s
analysis of excessive force must “assess[] the situation from the
officer’s perspective.” Appellee’s Br. 21 (citing County of Los
Angeles v. Mendez, 581 U.S. 420, 428 (2017)). In County of
Los Angeles, the Supreme Court held that, for civil liability in
an action under 42 U.S.C. § 1983, the reasonableness of an
officer’s use of force “must be judged from the perspective of
a reasonable officer on the scene.” 581 U.S. at 428. The
government also points out that the district court properly
informed the jury that the burden of disproving defense of
another beyond a reasonable doubt lies with the government.
Appellee’s Br. 25 (citing United States v. Purvis, 706 F.3d 520,
523 (D.C. Cir. 2013)).
A.
Although, as Celentano contends, the instruction should
have directed the jury to consider the excessiveness of force
from his perspective, neither Celentano’s nor the government’s
position fully reflects what the law requires for a self-defense
or defense of another instruction in the special context of law
enforcement activities. The right of a defendant to assert a
defense of self-defense and the defense of another “derives
from common law impliedly recognized by Congress when
enacting § 111.” United States v. Gore, 592 F.3d 489, 493 (4th
Cir. 2010). As the Supreme Court has long recognized, a
defendant is allowed to use as much force as “he, at the

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moment, honestly believed, and had reasonable grounds to
believe, was necessary.” Beard v. United States, 158 U.S. 550,
564 (1895). Because the law recognizes that law enforcement
officers are authorized to use force in carrying out their
responsibilities as long as the force is not excessive, see
Wardlaw v. Pickett, 1 F.3d 1297, 1302 (D.C. Cir. 1993), courts
have recognized that the affirmative defense of self-defense has
limits and is generally available only in certain circumstances,
including when the law enforcement officer has used excessive
force. See United States v. Waldman, 835 F.3d 751, 754 n.1
(7th Cir. 2016); United States v. Acosta-Sierra, 690 F.3d 1111,
1126 (9th Cir. 2012); Robinson v. United States, 649 A.2d 584,
587 (D.C. 1994); Nelson v. United States, 580 A.2d 114, 117-
18 (D.C. 1990).
Because the defense of self-defense and defense of another
are affirmative defenses against certain conduct by law
enforcement officers, courts have recognized that “these
general principles must accommodate a citizen’s duty to accede
to lawful government power and the special protection due
federal officials discharging official duties.” United States v.
Branch, 91 F.3d 699, 714 (5th Cir. 1996); see also United
States v. Hidalgo, 736 F. App’x 255, 257 (2d Cir. 2018). The
Supreme Court has acknowledged that Congress enacted
Section 111 to “accord[] maximum protection to federal
officers.” United States v. Feola, 420 U.S. 671, 684 (1975).
Absent a federal self-defense standard, the court may look to
state law, United States v. Desinor, 525 F.3d 193, 199 (2d Cir.
2008), including District of Columbia law, D.C. Code § 11-
101; Key v. Doyle, 434 U.S. 59, 64 (1977). So, as the D.C.
Court of Appeals has observed, “[t]he right to defend a third
person is analogous to the right of self-defense, and like self-
defense, can provide a complete defense to criminal charges.”
Lee v. United States, 61 A.3d 655, 657 (D.C. 2013) (discussing
CRIMINAL J URY I NSTRUCTIONS FOR THE DISTRICT OF
COLUMBIA).

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For a defendant to succeed on self-defense or defense of
another involving a law enforcement officer, then, the jury must
find that the defendant actually and reasonably believed the
officer was using excessive force. See Waldman, 835 F.3d at
755; Acosta-Sierra, 690 F.3d at 1126. How much force a
reasonable law enforcement officer is entitled to use to achieve
the needed restraint of a third party will depend on the
particular circumstances. See County of Los Angeles, 581 U.S.
at 427-28. Use of deadly force in defense of another requires
that the jury find the defendant actually and reasonably
believed that the third person “was in imminent peril of death
or serious bodily harm,” United States v. Peterson, 483 F.2d
1222, 1230 (D.C. Cir. 1973), and that the defendant used
“reasonable force to repel the perceived attack,” Parker v.
United States, 155 A.3d 835, 845 (D.C. 2017). When the
defendant uses non-deadly force, by contrast, he need only
believe that the third person is in imminent danger of unlawful
bodily harm. See United States v. Urena, 659 F.3d 903, 907
(9th Cir. 2011); Lee, 62 A.3d at 658. The jury, in turn, must
evaluate the reasonableness of the defendant’s belief based on
what the defendant knew and what the defendant reasonably
could have determined from the surrounding circumstances.
See Acosta-Sierra, 690 F.3d at 1126.
Here, the instruction given to the jury on the defense of
another improperly required the jury to consider the use of
force from a reasonable officer’s perspective, rather than from
Celentano’s perspective. In addition, the instruction did not
instruct the jury on the factors that the law requires to be taken
into account in considering this defense in the special context
of law enforcement actions. Troubling as well, the instruction
prevented the jury from fairly evaluating Celentano’s defense
of another defense, barring consideration of his defense to
Count One absent a finding Officer Ellis actually used unlawful
or excessive force.

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Without prescribing an exact formula as circumstances
will vary, the jury instructions should have informed the jury
that (1) The law authorizes law enforcement officers to use
force in performing their duties as long as the force is not
“excessive.” (2) In the context of law enforcement, force is
excessive when, under the surrounding circumstances, the
officer uses an amount or type of force that is more than
reasonably necessary to effectuate a seizure, arrest, detention,
or other lawful action. (3) Those relevant circumstances can
include, but are not limited to, whether the defendant or a third
person posed an immediate threat to the safety of the officer or
others; the possibility that the defendant or a third person was
armed, violent, or dangerous; whether the defendant or a third
person was actively resisting the officer; the number of persons
with whom the officer was contending at the time; the duration
of the officer’s action; the amount of time the officer had to
determine the type and amount of force that reasonably
appeared necessary, and any changing circumstances during
that period; the relationship between the need for the use of
force and the amount of force used; whether the physical force
applied was likely to lead to unnecessary injury; and the extent
of the defendant or third person’s injury. (4) The defendant
must actually and reasonably believe the officer is using such
excessive force. And (5) the jury must evaluate the
reasonableness of the defendant’s belief based both on what the
defendant knew and what the defendant reasonably could have
determined from the surrounding circumstances. In addition to
erroneously stating that a reasonable officer’s perspective was
paramount, the instructions on Celentano’s defense of another
did not adequately inform the jury of the factors it needed to
consider in assessing his defense.
B.
The question remains whether the erroneous jury
instruction on the defense of another, which applied to Counts
One, Two, Five, and Six, was harmless. Celentano suggests

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that the court apply the standard for constitutional errors
because, in his view, the instruction impermissibly shifted the
burden of proof from the government to him. See United
States v. Scott, 529 F.2d 338, 340 (D.C. Cir. 1975). For those
kinds of errors the court must find the error was harmless
beyond a reasonable doubt. United States v. Rhone, 864 F.2d
832, 835 (D.C. Cir. 1989) (citing Chapman v. California, 386
U.S. 18, 24 (1967)). Celentano has not shown such error
because the jury instruction provided that “the Government
must prove beyond a reasonable doubt that the Defendant did
not act in defense of another.” Trial Tr. 1415 (June 9, 2023).
The general standard for harmless error, therefore, applies.
Under that standard, see Kotteakos v. United States, 328 U.S.
750 (1946), the court considers “[i]f, in light of all the
circumstances — the language of the instructions, the
arguments of counsel, and the evidence itself — it is ‘highly
improbable’ that the jury convicted on an improper theory, then
‘technical errors in the instructions are deemed harmless,’”
Rhone, 864 F.2d at 835. Where “these factors indicate a
‘substantial possibility’ that the jury convicted on an improper
legal theory, then reversal is required.” Id. Celentano contends
that the evidence was sufficient such that “[i]f the jury credited
the testimony of both Celentano and [Officer] Ellis, then it
could have acquitted Celentano on the basis of self-defense:
even if Celentano was wrong that [Officer] Ellis was using
unlawful excessive force against this other protestor.”
Appellant’s Br. 39.
In the government’s view, even if the jury instruction on
defense of another was erroneous, the error was harmless
because there were other grounds upon which the jury could
have rejected Celentano’s defense. For example, the jury could
reasonably have found based on the evidence that “(1)
Celentano did not actually believe Officer Ellis was using
excessive force; (2) the person Celentano purported to defend
was the initial aggressor; or (3) Celentano used an unreasonable

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degree of force.” Appellee’s Br. 26-27. Further, the
government maintains, any error would be harmless on Counts
Two, Five, and Six “because the record contained
overwhelming evidence of other violent acts [by Celentano]
sufficient to convict on those counts.” Id. at 32.
On Count One, the government’s case rested on Celentano
and Officer Ellis’s altercation and Celentano’s defense centered
on his defense of another protestor. The jury was instructed to
consider whether Officer Ellis’s use of force was unlawful from
the perspective of a reasonable law enforcement officer. And
the jury was instructed that it had to find Officer Ellis’s use of
force was unlawful or excessive for it to consider Celentano’s
affirmative defense. A correct jury instruction would instead
have permitted the jury to find Celentano not guilty on Count
One because he actually and reasonably believed, given what
he could reasonably learn from his vantage point, that Officer
Ellis was using excessive force, acknowledging that the officer
is entitled to use non-excessive force as determined by the
surrounding circumstances.
Evidence offered by Celentano and Officer Ellis provided
different perspectives on the events preceding their interaction.
Celentano saw a protestor being held and repeatedly beaten by
a law enforcement officer. Officer Ellis saw a protestor holding
another law enforcement officer in a chokehold. On this record
there is a “substantial possibility” that the jury could have
credited Celentano’s testimony and found that (1) Celentano
actually and reasonably believed Officer Ellis was using
unlawful force given Celentano’s vantage point; (2) Celentano
actually and reasonably believed the other protestor was under
threat of imminent bodily harm; (3) Celentano used reasonable
counterforce that stopped the officer’s conduct without
inflicting unnecessary injury; and (4) there was insufficient
evidence that the person Celentano purported to defend was the
initial aggressor. Rhone, 864 F.2d at 835. Without clarity that

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the erroneous jury instruction was harmless, the court vacates
Celentano’s conviction on Count One.
Unlike Count One, the instructional error was harmless in
light of the evidence of Celentano’s other interactions with law
enforcement officers on the Capitol grounds on January 6 on
which the jury could reasonably have found Celentano guilty
on Counts Two, Five, and Six. On Count Two, Celentano
admitted to “interfer[ing] with the officers.” Trial Tr. 1339
(June 9, 2023); see 18 U.S.C. § 231(a)(3). On Counts Five and
Six, evidence showed that Celentano engaged with law
enforcement officers other than Officer Kenrick Ellis. Trial Tr.
1321-23, 1325-26 (June 9, 2023); see 18 U.S.C. § 1752(a)(4);
40 U.S.C. § 5104(e)(2)(F). It therefore appears “highly
improbable” that the jury convicted Celentano on Counts Two,
Five, and Six based on an improper legal instruction on Count
One. Rhone, 864 F.2d at 835.
III.
Celentano additionally raises a Double Jeopardy challenge
to his conviction on Count Two. The Double Jeopardy Clause
of the Fifth Amendment provides: “No person shall . . . be
subject for the same offence to be twice put in jeopardy of life
or limb.” U.S. CONST . A MEND. V.
Celentano contends that if the court declines to vacate
Counts One and Two based on the instructional error, then his
conviction on Count Two must be vacated because it is a lesser
included offense of Count One, of which Celentano was
convicted on the basis of both physical violence and intent to
commit another felony, Count Two. Applying the standard in
Blockburger v. United States, 284 U.S. 299, 304 (1932),
Celentano maintains that 18 U.S.C. § 111(a) makes it a felony
to commit certain acts against federal officers performing
official duties “where such acts involve physical contact with
the victim of that assault or the intent to commit another

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felony.” The jury specifically found that “[t]he defendant made
physical contact with Officer Kendrick [sic] Ellis” and “[t]he
defendant acted with the intent to commit another felony,”
namely Count Two. Jury Verdict Form 1-2.
Because the court is vacating Celentano’s conviction on
Count One and remanding, the Double Jeopardy claim is no
longer a live issue in this case. See Kalka v. Hawk, 215 F.3d
90, 97 (D.C. Cir. 2000). The district court can consider
Celentano’s Double Jeopardy argument in the first instance
should the government decide to retry Celentano on Count One.
IV.
Celentano challenges the jury instructions on Counts
Three, Four, and Five, which charged him with violating three
different subsections of 18 U.S.C. § 1752(a) criminalizing
“knowingly” committing certain actions within “restricted
buildings or grounds.” Appellant’s Br. 41. The district court
instructed the jury that the government had to prove that
Celentano “knew the buildings or grounds were restricted and
he knew he lacked lawful authority to enter or remain there,”
where “‘restricted building or grounds’ means any posted,
cordoned-off or otherwise restricted area of a building or
grounds where a person protected by the Secret Service is, or
will be, temporarily visiting.” Trial Tr. 1420 (June 9, 2023).
Celentano maintains that the district court erred in refusing to
instruct the jury that he “had to know that the Vice President or
another Secret Service protectee was visiting the area.”
Appellant’s Br. 46.
This challenge fails. In United States v. Griffin, 119 F.4th
1001 (D.C. Cir. 2024), the court held that Section 1752(a)
“required only that [the defendant] knew that he had entered or
remained in a ‘posted, cordoned off, or otherwise restricted’
area where he was not authorized to be,” rejecting an
interpretation of the statute that would require the government

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to prove the defendant knew “that the Vice President’s presence
was the reason the grounds remained restricted.” Id. at 1004.
V.
Finally, Celentano maintains that the district court “relied
on and used as its benchmark a Guidelines range that was
substantially above Celentano’s correct Guidelines range.”
Appellant’s Br. 52-60. He urges that the district court erred in
(1) applying an enhancement for “substantial interference with
the administration of justice” for Count Three under United
States v. Brock, 94 F.4th 39, 51 (D.C. Cir. 2024), which held
that “‘administration of justice’ does not encompass Congress’s
role in the electoral certification process [and instead] refers to
judicial, quasi-judicial, and adjunct investigative proceedings”;
(2) relying on a finding that Celentano violated 18 U.S.C.
§ 1512(c)(2) even though he was acquitted on that charge and
now that the Supreme Court has held a defendant is guilty under
the statute only if he “impair[s] the availability or integrity for
use in an official proceeding of records, documents, objects,
or . . . other things used in the proceeding, or attempted to do
so,” Fischer v. United States, 144 S. Ct. 2176, 2190 (2024); and
(3) applying the wrong definition of “aggravated assault.”
The government bears the burden of establishing that error
“did not affect the district court’s selection of the sentence
imposed.” Williams v. United States, 503 U.S. 193, 203 (1992);
see United States v. Kpodi, 824 F.3d 122, 129 (D.C. Cir. 2016).
Reliance on an incorrect Guidelines range by the sentencing
judge “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).
But the Supreme Court has acknowledged that “[t]here may be
instances when, despite application of an erroneous Guidelines
range, a reasonable probability of prejudice does not exist,” as
when the district court “thought the sentence . . . was
appropriate irrespective of the Guidelines range.” Id. at 200.

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Here, the district court judge stated at sentencing: “[I]f I only
had Counts 1 and 2 as counts of conviction before me . . . the
offense level would be a 22 and that would yield a guidelines
range of 41 to 51 months. In that case, because of all the factors
I mentioned earlier . . . I would have varied up in that case to
reach the same sentence I’m handing down to Mr. Celentano
today.” Sent. Tr. 107 (Jan. 30, 2024).
The court vacates Celentano’s sentence. Several errors
occurred in the Sentencing Guidelines calculation. The
government concedes that the application of U.S.S.G. § 2J1.2
to Count Three was erroneous after Fischer, 144 S. Ct. at 2190.
Following Fischer, U.S.S.G. § 3C1.1’s two-point perjury
enhancement is no longer relevant to Celentano’s counts of
conviction. In light of Fischer and vacatur of Celentano’s
conviction on Count One, the district court erred in applying
U.S.S.G. § 2A2.2 to Count Two. And even though the district
court stated it would sentence Celentano to the same term of
imprisonment under a lower Guidelines range, the district court
made that sentence contingent on Celentano’s conviction on
Count One, which no longer holds. Given these errors and the
presumption in favor of resentencing when the district court
miscalculates the Guidelines range, the court vacates
Celentano’s sentence and remands for resentencing.
Accordingly, the court vacates Celentano’s conviction on
Count One, vacates his sentence and remands for resentencing,
and remands the case, except Count Seven, to the district court
for further proceedings.

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