In United States v. Montgomery, No. 20-1201 (6th Cir. May 24, 2021), a Sixth Circuit panel tries to bring clarity to the distinction between forfeiture and waiver in an appeal of a sentencing error.
“The difference between waiver and forfeiture has long bedeviled lawyers and judges alike. Lawyers often split the difference, using the terms interchangeably or even offering a formulation like ‘my opponent waived and/or forfeited that argument.’ Sometimes they will also invoke invited error, which falls within the continuum between forfeiture and waiver. But the terms have different meanings and, especially in criminal cases, different consequences.”
Defendant Montgomery was sentenced for drug conspiracy and distribution in 2007. Applying for a sentence reduction under the 2018 First Step Act, the district court granted relief, but erroneously “placed him in Criminal History Category VI instead of category V.” On appeal, the government argued that Montgomery “waived his right to challenge his criminal history categorization” and, in any event, the “error was not plain because the district court’s obligation to sentence Montgomery under the correct Guidelines range was not clear.”
The Sixth Circuit vacates and remands for resentencing. “First, we must clarify the difference between waiver, invited error, and forfeiture and explain their different consequences in the criminal law setting . . . . [They] are best understood as operating on a continuum.”
“At one extreme is waiver. ‘[W]aiver is the ‘intentional relinquishment or abandonment of a known right’ . . . . A plea agreement, for example, typically waives an array of rights . . . . Because a defendant can only waive a right that he knows of and actively abandons, true waiver will be relatively rare. As such, it comes with the strictest consequences: waiver ‘extinguishes an ‘error’ under Rule 52(b),’ so we cannot review the supposed error at all.”
“Forfeiture is at the other end of the spectrum. It is the passive failure to make a timely assertion of a right . . . . If a defendant fails to object to a district court’s ruling at trial, for example, he forfeits the argument . . . . The same is true if a defendant fails to object to the way the Sentencing Guidelines are applied to him . . . . But in criminal cases, it is forfeiture in name only—Federal Rule of Criminal Procedure 52(b) allows us to consider such unpreserved arguments for plain error.”
“Finally, covering much of the space in the middle is invited error. A litigant invites error when he contributes in some way to the district court’s error without intentionally relinquishing his rights . . . . Because in such circumstances a defendant is more responsible for the district court’s error than when he merely forfeits an argument, but has not made the conscious choice to waive the argument, the consequences fall in between those for forfeiture and waiver. We do not review invited errors as a matter of course, but we are also not foreclosed from reviewing them; instead, we review for plain error when ‘the interests of justice demand’ it.”
The panel holds that Montgomery’s case falls into the invited error bucket. “He did not intentionally relinquish a known right, as he would have to do to affirmatively waive that right . . . . But he did more than passively stand by as the district court erred, so he did not just forfeit his challenge to the Guidelines calculation either . . . . By telling the district court in his briefing that he was in Criminal History Category VI, and that his Guidelines range was therefore 292–365 months, Montgomery invited the district court to reach those erroneous conclusions.”
The panel finally holds that “the interests of justice” require resentencing. “The Guidelines are the ‘lodestar’ of most federal sentencing proceedings . . . . and correctly calculating the Guidelines range is the starting point of the resentencing hearing.” Thus the panel remands for resentencing.