United States v. Loving, No. 21-1382 (7th Cir. 2022)
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An Indiana State Police trooper stopped Loving for speeding and asked Loving if he had marijuana on him. Loving sped away, dragging the trooper several feet. Loving drove at high speed through the scene of a recent car accident, endangering first-responders. Officers caught Loving with 271 grams of cocaine and 56 grams of heroin. Loving pled guilty to possessing cocaine and heroin with intent to distribute, 21 U.S.C. 841(a)(1). The district court adopted the PSR findings without addressing the parties’ agreement that Loving should receive a reduction for acceptance of responsibility and that his calculated guideline range should be based on a total offense of level of 23. The court found that Loving’s total offense level was 24 and that his advisory guideline imprisonment range was 57-71 months. Loving objected. The government presented testimony about Loving’s flight as “the factual basis for a one-level upward variance” under application note 6 of U.S.S.G. 3C1.2. The court sentenced Loving to 71 months’ imprisonment, stating that the 18 U.S.C. 3553(a) sentencing factors called for a sentence within the applicable guideline range.
The Seventh Circuit vacated. The court did not explain how it calculated Loving’s total offense level. disregarded the parties’ agreement for an additional one-level reduction in the offense level for timely acceptance of responsibility, and misused a Sentencing Guidelines departure provision to determine the calculated range rather than as a basis for an upward departure or variance.
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