UNITED STATES v. HOLMES (2018)

Marcus S. Holmes appeals his 57-month sentence for failing to register as a sex offender under 18 U.S.C. § 2250(a). Holmes contends the district court plainly erred by running his sentence consecutively to a 15-year sentence Holmes is serving for sexual assault under Florida law. According to Holmes, the sexual-assault conviction was relevant conduct for purposes of U.S.S.G. § 5G1.3(b)(2), thus the district court was required to run his sentences concurrently. See U.S.S.G. § 5G1.3(b)(2). After review,¹ we affirm.

At sentencing, the district court asked Holmes’ counsel whether a concurrent sentence was mandatory. See USDC Doc. 61 at 13. Holmes’ counsel confirmed “[i]t’s absolutely discretionary.” Id. The district court then clarified its question: “[W]hen I say ‘discretionary versus mandatory,’ there are certain instances in which you must run things concurrently and nobody is suggesting that’s the case here; correct?” Id. at 14. Holmes’ counsel replied that was correct. Id.

We have consistently held that parties cannot appeal from errors they invited. See United States v. Haynes, 764 F.3d 1304, 1308 (11th Cir. 2014) (“When a party invites an error, we are precluded from invoking plain-error review to reverse that error.”); United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006) (“We do not reach the merits of Love’s arguments because we conclude Love induced or invited the ruling he now claims was error.”); United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005) (“Where invited error exists, it precludes a court from invoking the plain error rule and reversing.” (quotation omitted) ); United States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997) (“It is a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party.” (quotation omitted) ). Here, Holmes told the district court it had discretion to impose a consecutive sentence. Holmes cannot complain on appeal that the district court followed his advice.

AFFIRMED.

FOOTNOTES

1.   Where, as here, a sentencing argument is raised for the first time on appeal, we review for plain error. United States v. Haynes, 764 F.3d 1304, 1308 (11th Cir. 2014). But an “invited error,” plain or otherwise, is not grounds for reversal. Id.

PER CURIAM: