In US v. Blocker, No. 09-10798, the court of appeals affirmed defendant's bank robbery sentence on the ground that it was error for the district court to assess defendant two criminal history points under U.S.S.G. section 4A1.1(d), but where a sentence falls within both the correct and incorrect guidelines, the court of appeals does not assume, in the absence of additional evidence, that the sentence affected defendant's substantial rights.
As the court wrote: "John Tyrone Blocker was sentenced to his 85-month term of imprisonment after pleading guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a) and after stipulating to a second bank robbery in his factual resume. Blocker argues that the district court improperly calculated his guidelines range. It did so by erroneously adding two points to his criminal history score on the basis that he committed the bank robbery while under an active revocation of probation bench warrant. U.S.S.G. § 4A1.1(d). These two points placed Blocker in criminal history category II. When combined with an offense level of 27, the guidelines range was 78 to 97 months. Without the two points challenged by Blocker, he falls within criminal history category I, and his guidelines range falls to 70 to 87 months."
- Full Text of US v. Blocker, No. 09-10798