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Description: Kansas City, Missouri criminal lawyer represented Defendant charged with unlawful possession of a firearm.

its discretion in sentencing Corn within the invited range. We therefore affirm the
judgment.

In 2019, Corn pleaded guilty to unlawful possession of a firearm in a school
zone. See 18 U.S.C. §§ 922(q)(2)(A), 924(a)(4). The plea agreement stated that Corn
“understands that this is a Class D felony” with a maximum sentence of five years’
imprisonment and three years of supervised release. The agreement further recited
that if Corn violated a condition of his supervised release, the court may impose an
additional period of imprisonment of up to two years and a new term of supervised
release. At sentencing, Corn agreed that he could be sentenced to a term of
supervised release not to exceed three years, and requested a sentence that included
a three-year term of supervised release. The district court sentenced Corn to a term
of fifty-five months’ imprisonment and three years’ supervised release.

Corn was released from custody and began his term of supervised release in
March 2020. In April 2021, the district court revoked Corn’s supervised release after
he admitted to the possession and use of methamphetamine. The court determined
that the maximum term of imprisonment for a revocation sentence was two years, that
the advisory guideline range was eight to fourteen months, and that imprisonment and
supervised release together could not exceed thirty-six months.

Corn agreed with those calculations, and asked the court to impose a revocation
sentence of one year and a day in prison with no supervision to follow. The district
court instead varied upward from the advisory range and imposed a sentence of
twenty months’ imprisonment and twelve months of supervised release.
Corn’s principal argument on appeal is that his revocation sentence exceeds the
maximum term authorized by statute, and that the district court plainly erred in
imposing it. The maximum term depends on the term of supervised release
authorized by statute for Corn’s original firearms offense. When a district court
revokes a term of supervised release, the court may impose a term of imprisonment
and a new term of supervised release, but the total term cannot exceed the term of
supervised release authorized by the original statute of conviction. See 18 U.S.C.
§ 3583(h).

Corn now argues that the statute of conviction in his case, 18 U.S.C. § 922(q),
authorizes a term supervised release of only one year. He thus contends that his
revocation sentence of twenty months’ imprisonment and twelve months of
supervised release exceeds the maximum. An offender convicted under § 922(q) is
subject to a term of imprisonment of up to five years. Id. § 924(a)(4). The penalty
provision, § 924(a)(4), is silent as to the applicable period of supervised release, but
states that “[e]xcept for the authorization of a term of imprisonment of not more than
5 years made in this paragraph, for the purpose of any other law a violation of section
922(q) shall be deemed to be a misdemeanor.” Id.

The authorized term of supervised release for a misdemeanor is not more than
one year. Id. § 3583(b). Corn argues that because § 922(q) is a misdemeanor “for the
purpose of any other law,” it is a misdemeanor for the purpose of calculating his term
of supervised release under § 3583(b). As such, Corn contends that § 922(q)
authorizes a term of supervised release of not more than one year, and that one year
allocated between imprisonment and supervised release is the maximum punishment
allowed after a revocation of supervised release.

The government counters that § 922(q) authorizes a term of supervised release
of up to three years. Corn’s firearms offense is not classified by a letter grade in
§ 922(q), and offenses “not specifically classified by a letter grade” are assigned letter
grades in 18 U.S.C. § 3559(a) based on the maximum term of imprisonment allowed.

Because the maximum term of imprisonment for a violation of § 922(q) is five years,
the government contends that the offense is classified as a Class D felony under
§ 3559(a)(4). The authorized term of supervised release for a Class D felony is up to
three years, 18 U.S.C. § 3583(b)(2), so the government argues that Corn’s revocation
sentence of twenty months’ imprisonment and twelve months of supervised release
is within the applicable maximum of thirty-six months. On this view, because the
availability of a three-year term of supervised release follows directly from “the
authorization of a term of imprisonment of not more than 5 years made in this
paragraph,” 18 U.S.C. § 924(a)(4), the misdemeanor classification “for the purpose
of any other law” does not apply. Two circuits have concluded that the government’s
interpretation is not plainly erroneous. United States v. Grant, 665 F. App’x 304, 308
(4th Cir. 2016); United States v. Alvira-Sanchez, 804 F.3d 488, 495 (1st Cir. 2015).
In this case, we conclude that Corn is not entitled to plain-error review because
he invited the alleged error. Under the invited error doctrine, a defendant who invites
the district court to make a particular ruling waives his right to claim on appeal that
the ruling was erroneous. United States v. Campbell, 764 F.3d 874, 879 (8th Cir.
2014); United States v. Mariano, 729 F.3d 874, 881 (8th Cir. 2013). The plain-error
standard applies only “when a defendant inadvertently fails to raise an objection in
the district court.” United States v. Thompson, 289 F.3d 524, 526 (8th Cir. 2002).
A defendant cannot complain on appeal that the court proceeded in a way that his
lawyer requested. Id.

Corn invited the district court to classify § 922(q) as a Class D felony rather
than as a misdemeanor. Corn’s plea agreement regarding the offense stated that he
“understands that this is a Class D felony” with a maximum sentence that could
include three years of supervised release. Corn also acknowledged that if he violated
a condition of his release, the court could impose an additional period of
imprisonment of up to two years, a punishment available only for a felony.
At the original sentencing hearing, Corn sought a sentence that included a
three-year term of supervised release. That term is authorized for a Class D felony,
but exceeds the punishment allowed for a misdemeanor. See 18 U.S.C. § 3583(b)(2),
(b)(3), (e)(3).

Corn again invited the district court to treat § 922(q) as a Class D felony at the
revocation hearing. Corn agreed that the statutory maximum penalty was two years’
imprisonment, and that custody and supervised release together could not exceed
three years. Corn specifically asked the court for a revocation sentence of a year and
a day in prison—a term that was permissible only if § 922(q) was classified as a
felony rather than a misdemeanor. The district court accepted the invitation to treat
§ 922(q) as a felony, although it did not adopt Corn’s preferred sentence within the
statutory range for a Class D felony.

Corn’s invitation is comparable to the defendant’s litigating position in United
States v. Love, 449 F.3d 1154 (11th Cir. 2006). There, the defendant sought to appeal
a sentence that included a term of five years’ supervised release on the ground that
the statute of conviction did not authorize any term of supervised release. Id. at 1156.
But the defendant had acknowledged in a plea agreement that the statute authorized
a term of up to five years’ supervised release, and he had requested a sentence with
two years of supervised release. Id. at 1157. The Eleventh Circuit ruled that because
the defendant invited the district court to impose a sentence that included a term of
supervised release, he was precluded from arguing on appeal that the statute did not
authorize supervised release. The court thus affirmed the sentence that included a
term of five years’ supervised release. Id.

In this case, Corn invited the district court to treat § 922(q) as a felony by
imposing a sentence that was permissible only if the offense was so classified. Corn
thus invited any error in classifying the offense as a felony, and he is foreclosed from
asserting on appeal that § 922(q) should be classified as a misdemeanor. See
Campbell, 764 F.3d at 879; Mariano, 729 F.3d at 881

Outcome: Affirmed

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