Petition for Writ of Certiorari — Tyrone Grailford, Petitioner v. United States

No. __________

IN THE

Supreme Court of the United States

TYRONE GRAILFORD,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

William F. Nettles, IV

FEDERAL PUBLIC DEFENDER

DISTRICT OF SOUTH CAROLINA

Emily Deck Harrill

ASSISTANT FEDERAL PUBLIC DEFENDER

DISTRICT OF SOUTH CAROLINA

1901 Assembly Street

Suite 200

Columbia, South Carolina 29201

803.765.5079

Emily_Harrill@fd.org

Counsel of Record for Petitioner

QUESTION PRESENTED

Whether errors in calculating the Sentencing Guidelines are rendered

categorically harmless by the district court’s statement that the Guidelines would

make no difference to the choice of sentence.

i

PARTIES TO THE PROCEEDINGS

The parties to the petition are:

Tyrone Grailford, Petitioner; and

United States of America, Respondent.

ii

RELATED PROCEEDINGS

United States v. Grailford, No. 3:22-cr-611-SAL, United States District Court

for the District of South Carolina. Judgment entered April 8, 2025.

United States v. Grailford, No. 25-4229, United States Court of Appeals for the

Fourth Circuit. Judgment entered December 31, 2025.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDINGS ............................................................................ ii

RELATED PROCEEDINGS......................................................................................... iii

PETITION FOR WRIT OF CERTIORARI ................................................................... 1

OPINION BELOW......................................................................................................... 1

JURISDICTION............................................................................................................. 1

FEDERAL RULE OF CRIMINAL PROCEDURE INVOLVED................................... 1

INTRODUCTION .......................................................................................................... 2

STATEMENT OF THE CASE....................................................................................... 5

REASONS FOR GRANTING THE PETITION ............................................................ 6

A. This Court’s Precedents Do Not Answer the Question Presented. .............. 8

B. The Circuits Have Taken Markedly Different Approaches to Alternative

Sentence Cases. .............................................................................................. 9

1.

The Majority of Circuits Require More than Just an Alternative

Sentence. .................................................................................................. 9

2.

The Minority View Finds Guidelines Errors Harmless When the

District Judge Issues an Alternative Sentence. ................................... 11

C. The Majority View Is the Better Approach. ................................................ 14

CONCLUSION............................................................................................................. 17

APPENDIX:

Order of the United States Court of Appeals

for the Fourth Circuit, No. 25-4229 (4th Cir. Dec. 31, 2025) .......................... 1a

iv

TABLE OF AUTHORITIES

Cases

Chavez-Meza v. United States, 585 U.S. 109 (2018) ................................................... 15

Gall v. United States, 552 U.S. 38 (2007) ....................................................... 2, 6, 8, 15

Greer v. United States, 593 U.S. 503 (2021) ............................................................... 16

Molina-Martinez v. United States, 578 U.S. 189 (2016) ..................................... 6, 9, 15

Neder v. United States, 527 U.S. 1 (1999)..................................................................... 8

Peguero v. United States, 526 U.S. 23 (1999) ............................................................... 8

Peugh v. United States, 569 U.S. 530 (2013) .......................................................... 6, 14

Rita v. United States, 551 U.S. 338 (2007) ............................................................... 6, 7

Rosales-Mirales v. United States, 585 U.S. 129 (2018) .......................................... 9, 15

United States v. Abbas, 560 F.3d 660 (7th Cir. 2009) ................................................ 10

United States v. Acevedo-Hernandez, 898 F.3d 150 (1st Cir. 2018) ............................ 3

United States v. Asbury, 27 F.4th 576 (7th Cir. 2022) ........................................... 3, 10

United States v. Bah, 439 F.3d 423 (8th Cir. 2006)................................................ 2, 12

United States v. Collins, 800 F. App'x 361 (6th Cir. 2020) ........................................ 13

United States v. Davila, 569 U.S. 597 (2013) ......................................................... 7, 16

United States v. Fitzpatrick, 126 F.4th 348 (4th Cir. 2025) ....................................... 13

United States v. Gieswein, 887 F.3d 1054 (10th Cir. 2018).................................... 3, 11

United States v. Gomez, 690 F.3d 194 (4th Cir. 2012) ............................................... 12

United States v. Gomez-Jimenez, 750 F.3d 370 (4th Cir. 2014)............................. 3, 13

United States v. Grady, 18 F.4th 1275 (11th Cir. 2021)............................................. 12

United States v. Henry, 1 F.4th 1315 (11th Cir. 2021) ........................................... 3, 12

United States v. Howard, 773 F.3d 519 (4th Cir. 2014) ............................................. 13

v

United States v. Icaza, 492 F.3d 967 (8th Cir. 2007)............................................ 10, 12

United States v. Kamper, 748 F.3d 728 (6th Cir. 2014) ............................................... 3

United States v. Langford, 516 F.3d 205 (3d Cir. 2008)....................................... 10, 16

United States v. Mills, 917 F.3d 324 (4th Cir. 2019) .................................................. 12

United States v. Morrison, 852 F.3d 488 (6th Cir. 2017) ........................................... 13

United States v. Nixon, 130 F.4th 420 (4th Cir. 2025) ............................................... 13

United States v. Ouellette, 985 F.3d 107 (1st Cir. 2021) ............................................ 14

United States v. Raia, 993 F.3d 185 (3d Cir. 2021) ................................................ 3, 16

United States v. Seabrook, 968 F.3d 224 (2d Cir. 2020) ............................... 2, 3, 10, 11

United States v. Still, 6 F.4th 812 (8th Cir. 2021) .................................................. 3, 11

United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017).................................... 2, 3, 10

United States v. Vonn, 535 U.S. 55 (2002) .................................................................... 9

United States v. Williams, 5 F.4th 973 (9th Cir. 2021) .......................................... 3, 10

United States v. Wright, 642 F.3d 148 (3d Cir. 2011) ................................................ 10

United States v. Zuk, 874 F.3d 398 (4th Cir. 2017) .................................................... 13

Williams v. United States, 503 U.S. 193 (1992).................................................... 2, 7, 8

Statutes

18 U.S.C. § 922(g)(1) ...................................................................................................... 5

18 U.S.C. § 924(a)(2) ...................................................................................................... 5

18 U.S.C. § 3553 ........................................................................................................... 10

18 U.S.C. § 3553(a) .................................................................................................. 5, 10

18 U.S.C. § 3553(a)(4)(A) ............................................................................................. 14

28 U.S.C. § 1254(1) ........................................................................................................ 1

S.C. Code Ann. § 16-3-1040(A) ...................................................................................... 5

vi

Rules

Fed. R. Crim. P. 52......................................................................................................... 1

Fed. R. Crim. P. 52(a) ...................................................................................... 2, 7, 8, 16

Fed. R. Crim. P. 52(b) .............................................................................................. 9, 16

Guidelines

U.S.S.G. § 2K2.1(a)(2) .................................................................................................... 5

U.S.S.G. § 4B1.2(a)(1) .................................................................................................... 5

vii

PETITION FOR WRIT OF CERTIORARI

Petitioner Tyrone Grailford respectfully petitions this Court for a writ of

certiorari to review the judgment of the United States Court of Appeals for the Fourth

Circuit.

OPINION BELOW

The opinion of the United States Court of Appeals for the Fourth Circuit can

be found at United States v. Grailford, No. 25-4229 (4th Cir. Dec. 31, 2025), ECF No.

33, and is set forth at App. 1a.

JURISDICTION

The judgment of the court of appeals was entered on December 31, 2025.

Grailford did not seek rehearing or rehearing en banc.

Jurisdiction of this Court is pursuant to 28 U.S.C. § 1254(1).

FEDERAL RULE OF CRIMINAL PROCEDURE INVOLVED

Federal Rule of Criminal Procedure 52 provides:

(a) Harmless error. Any error, defect, irregularity, or variance that

does not affect substantial rights must be disregarded.

(b) Plain error. A plain error that affects substantial rights may be

considered even though it was not brought to the court’s attention.

1

INTRODUCTION

District courts must properly calculate the Guidelines and explain a

defendant’s sentence, with a more detailed explanation required when the district

court departs from the applicable Guidelines range. Gall v. United States, 552 U.S.

38, 49-50 (2007). If preserved, a misapplication of the Guidelines is subject to

harmless error analysis on appellate review pursuant to Fed. R. Crim. P. 52(a). See

Williams v. United States, 503 U.S. 193, 204 (1992).

This case presents a recurring issue where a district court attempts to

“insulate its sentence from [appellate] review by commenting that the Guidelines

range made no difference to its determination when the record indicates that it did.”

United States v. Seabrook, 968 F.3d 224, 233-234 (2d Cir. 2020). Such a statement by

a district court during sentencing is commonly referred to as an “alternative

sentence.” United States v. Bah, 439 F.3d 423, 430 (8th Cir. 2006). The circuit courts

have differed when evaluating Guidelines calculation errors under harmless error

when confronted with an alternate sentence and the need for a district court to

explain its sentence.

The majority view is that “it is not enough for the district court to say the same

sentence would have been imposed but for the error.” United States v. Tanksley, 848

F.3d 347, 353 (5th Cir. 2017). Instead, the district court must comply with Gall and

“state its justifications with enough specificity” to provide enough context for effective

2

appellate review. Seabrook, 968 F.3d at 235. The Second, Third, Fifth, Seventh,

Ninth, and Tenth Circuits are in accord. 1

In contrast, the minority view finds procedural errors harmless when “the

district court has expressly stated in a separate and particular explanation that it

would have reached the same result” had it not erred. United States v. GomezJimenez, 750 F.3d 370, 383 (4th Cir. 2014). Consequently, if the district court issues

an alternative sentence, these circuits will affirm the sentence unless it is

substantively unreasonable. Id. at 382. In varying degrees, the First, Fourth, and

Sixth, are in accord. 2 The Fourth Circuit applied this approach to affirm Grailford’s

sentence. See App. 1a-4a.

The Eighth and Eleventh Circuits require little more than a simple statement

that the district court would have imposed the same sentence regardless of any error,

rendering any harmless error a paper tiger. 3

This Court’s review is warranted due to the differing approaches adopted by

the circuits and because of the frequency and importance of this issue. This Court

should grant certiorari to promote uniformity in sentencing, the very purpose of the

federal Sentencing Guidelines. This Court should conclude, like the majority of

See United States v. Seabrook, 968 F.3d 224, 233-234 (2d Cir. 2020); United States v. Raia, 993 F.3d

185, 196 (3d Cir. 2021); United States v. Tanksley, 848 F.3d 347, 353 (5th Cir. 2017); United States v.

Asbury, 27 F.4th 576, 581 (7th Cir. 2022); United States v. Williams, 5 F.4th 973, 978 (9th Cir. 2021);

United States v. Gieswein, 887 F.3d 1054, 1062-1063 (10th Cir. 2018).

1

See United States v. Acevedo-Hernandez, 898 F.3d 150, 172 (1st Cir. 2018); United States v. Kamper,

748 F.3d 728, 743-744 (6th Cir. 2014).

2

United States v. Still, 6 F.4th 812, 818 (8th Cir. 2021); United States v. Henry, 1 F.4th 1315, 1327

(11th Cir. 2021).

3

3

circuits to consider the issue, that a Guidelines error is not harmless simply because

a district judge issues an alternative sentence.

4

STATEMENT OF THE CASE

In 2024, Grailford pleaded guilty to one count of possession of a firearm by a

convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Grailford’s

Presentence Report (PSR) found that one of Grailford’s prior South Carolina

convictions, S.C. Code Ann. § 16-3-1040(A), threatening the life of a public official,

was a “crime of violence,” as that term is defined in U.S.S.G. § 4B1.2(a)(1). This

impacted Grailford’s base offense level under U.S.S.G. § 2K2.1(a)(2). Applying

established South Carolina law and the categorical approach, Grailford objected to

this determination. At sentencing, the district court overruled Grailford’s objection,

finding the offense to be a qualifying “crime of violence.”

The district court sentenced Grailford to 77 months’ imprisonment. In

imposing sentence, the district court stated that it “would have imposed the same

sentence even if [it] miscalculated the guidelines here. An alternate variant sentence

of 77 months, every day of it . . . would have been necessary to accomplish the[] goals

of 18 U.S.C. [§] 3553(a).”

Grailford filed a timely notice of appeal, challenging the district court’s

Guidelines determination as an incorrect analysis of South Carolina law and an

improper application of the categorical approach. On December 31, 2025, the Fourth

Circuit issued an unpublished per curiam decision affirming Grailford’s sentence.

Assuming that the district court had committed the challenged Guidelines calculation

error, the Fourth Circuit nevertheless determined any error was harmless based on

the district court’s statement that, in the alternative, it would have imposed the same

sentence.

5

REASONS FOR GRANTING THE PETITION

The Guidelines play a “central role in sentencing” and frequently are

determinative of the actual sentence. Molina-Martinez v. United States, 578 U.S. 189,

191 (2016). This is because “[t]he post-Booker federal sentencing scheme aims to

achieve uniformity by ensuring that sentencing decisions are anchored by the

Guidelines and that they remain a meaningful benchmark through the process of

appellate review.” Peugh v. United States, 569 U.S. 530, 541 (2013).

Because of the centrality of the Guidelines, “district courts must begin their

analysis with the Guidelines and remain cognizant of them throughout the

sentencing process,” and “improperly calculating[] the Guidelines range” constitutes

“significant procedural error.” Gall, 552 U.S. at 50 n.6, 51. Even if the sentencing

court “decides that an outside-Guidelines sentence is warranted,” it “must give

serious consideration” to “the extent of the deviation” and variances from the

Guidelines range must be accompanied by a “justification . . . sufficiently compelling

to support the degree of the variance.” Id. at 50. When “the record is silent as to what

the district court might have done had it considered the correct Guidelines range, the

court’s reliance on an incorrect range in most instances will suffice to show an effect

on the defendant’s substantial rights.” Molina-Martinez, 578 U.S. at 201.

“[A] district court should begin all sentencing proceedings by correctly

calculating the applicable Guidelines range.” Gall, 552 U.S. at 49. In imposing

sentence, a sentencing judge “should set forth enough to satisfy the appellate court

that [s]he has considered the parties’ arguments and has a reasoned basis for

exercising [her] own legal decisionmaking authority.” Rita v. United States, 551 U.S.

6

338, 356 (2007). The “appropriateness of brevity or length, conciseness or detail, when

to write, what to say, depends upon circumstances.” Id. Finally, when reviewing a

sentence on appeal, “the appellate court . . . must first ensure that the district court

committed no significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range . . . or failing to adequately explain the chosen

sentence—including an explanation for any deviation from the Guidelines range.”

Gall, 552 U.S. at 51.

Despite this Court’s unequivocal directive regarding calculation of the correct

Guidelines range and that district courts are to remain cognizant of the Guidelines

during sentencing, a circuit split exists about whether “improperly calculating[]” that

range is rendered categorically harmless if the district court simply announces an

alternative sentence; in effect, that it considers the Guidelines unimportant for its

sentence.

The majority of circuits have concluded that the requirement of a fulsome

sentencing explanation informs the harmless error inquiry when a district judge

imposes an alternative sentence. However, a minority of circuits hold the opposite:

an alternative sentence renders any Guidelines error harmless regardless of the lack

of explanation justifying the alternative sentence.

This Court often grants certiorari to resolve circuit conflicts to ensure harmless

error review is properly conducted under Rule 52(a). See, e.g., Williams, 503 U.S. at

203 (whether incorrect application of the mandatory Guidelines is harmless error);

United States v. Davila, 569 U.S. 597, 605 (2013) (whether violations of Rule 11(c)(1)

7

are harmless); Neder v. United States, 527 U.S. 1, 7 (1999) (whether an erroneous

jury instruction harmless error); Peguero v. United States, 526 U.S. 23, 24 (1999)

(whether failure to advise defendant of right to appeal harmless error). The

harmlessness of a Guidelines calculation error is no less important, and this Court

should grant certiorari to review this important question. This Court should adopt

the majority view because it properly applies this Court’s sentencing jurisprudence

and is the better interpretation of Rule 52(a), Fed. R. Crim. P.

A.

This Court’s Precedents Do Not Answer the Question Presented.

“[A] district court should begin all sentencing proceedings by correctly

calculating the applicable Guidelines range.” Gall, 552 U.S. at 49. If a district court

“decides that an outside-Guidelines sentence is warranted, [s]he must consider the

extent of the deviation and ensure that the justification is sufficiently compelling to

support the degree of the variance.” Id. at 50. “[A] major departure should be

supported by a more significant justification than a minor one.” Id.

When a district court errs in calculating the Guidelines, an appellate court does

not have to “remand every time a sentencing court might misapply a provision of the

Guidelines.” Williams, 503 U.S. at 202. Instead, “remand is required only if the

sentence was ‘imposed as a result of an incorrect application’ of the Guidelines.” Id.

at 202-203 (emphasis in original). Thus, “once the court of appeals has decided that

the district court misapplied the Guidelines, a remand is appropriate unless the

reviewing court concludes, on the record as a whole, that the error was harmless.” Id.

at 203.

This Court has not refined this harmless error analysis in the context of

8

Guidelines errors. Under plain error review, see Rule 52(b), Fed. R. Crim. P., “[t]here

may be instances when, despite application of an erroneous Guidelines range, a

reasonable probability of prejudice does not exist.” Molina-Martinez, 578 U.S. at 201.

Such a procedural error may be harmless when the “record may show . . . that the

district court thought the sentence it chose was appropriate irrespective of the

Guidelines range.” Id. However, “[w]hen a defendant is sentenced under an incorrect

Guidelines range . . . the error itself can, and most often will, be sufficient to show a

reasonable probability of a different outcome absent the error.” Id. at 198. “In the

ordinary case, proof of a plain Guidelines error that affects a defendant’s substantial

rights is sufficient to meet” a defendant’s burden “‘to persuade the court that the error

seriously affect[ed] the fairness, integrity or public reputation of judicial

proceedings.’” Rosales-Mirales v. United States, 585 U.S. 129, 142 n.4 (2018) (quoting

United States v. Vonn, 535 U.S. 55, 63 (2002)).

Therefore, despite having found that an erroneous Guidelines range

calculation is almost always plain error, this Court has not addressed the impact an

alternative sentence will have on the harmless error calculus and has only mentioned

in passing such alternative sentences in plain error cases.

B.

The Circuits Have Taken Markedly Different Approaches to

Alternative Sentence Cases.

1.

The Majority of Circuits Require More than Just an

Alternative Sentence.

The circuit courts have diverged in the treatment of alternative sentences. A

majority of circuits require more than the issuance of an alternative sentence to find

harmless error. The Second, Third, Fifth, Seventh, Ninth, and Tenth Circuits find

9

that a Guidelines calculation error is not harmless merely because the district court

states it would have sentenced the defendant to the same sentence regardless of any

Guidelines errors. These circuits require that a district judge “determine a Guidelines

range without the miscalculation error and explain any variance from it based on [18

U.S.C. §] 3553(a) factors.” United States v. Langford, 516 F.3d 205, 218 (3d Cir. 2008)

(citing United States v. Icaza, 492 F.3d 967, 971 (8th Cir. 2007)). See also Seabrook,

968 F.3d at 233-234; United States v. Wright, 642 F.3d 148, 154 n.6 (3d Cir. 2011) (“a

statement by a sentencing court that it would have imposed the same sentence even

absent some procedural error does not render the error harmless” because “it must

still begin by determining the correct alternative Guidelines range and properly

justify the chosen sentence” in relation to it); Tanksley, 848 F.3d at 353 (remanding

for new sentencing because “it is not enough for the district court to say the same

sentence would have been imposed but for the error”); United States v. Asbury, 27

F.4th 576, 581 (7th Cir. 2022) (while sentencing courts have discretion to fashion

sentences under 18 U.S.C. § 3553, this discretion does not “permit the judge to nullify

the guidelines by way of a simple assertion that any latent errors in the guidelines

calculation would make no difference to the choice of sentence[,]” and “‘a conclusory

comment tossed in for good measure’ is not enough to make a guidelines error

harmless.”) (quoting United States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009); United

States v. Williams, 5 F.4th 973, 978 (9th Cir. 2021) (reversing Guidelines

miscalculation notwithstanding district court’s statements “that it would have

imposed the same sentence” regardless of the Guidelines); United States v. Gieswein,

10

887 F.3d 1054, 1062-1063 (10th Cir. 2018) (Tenth Circuit “has rejected the notion

that district courts can insulate sentencing decisions from review by making . . .

statements” that “its conclusion would be the same ‘even if all of the defendant’s

objections to the presentence report had been successful.”’ (quoting statement by

district court at sentencing)). These circuits require this additional step be taken

before finding a procedural error harmless as “we cannot be certain that the court’s

calculus would not have been altered had it appreciated the full extent of the . . .

variance [from the proper Guidelines range] it was contemplating.” Seabrook, 968

F.3d at 234.

2.

The Minority View Finds Guidelines Errors Harmless

When the District Judge Issues an Alternative Sentence.

In contrast to the majority of circuits, a minority of circuit courts require little

more than a simple statement of an alternative sentence to find a Guidelines error

harmless. This effectively relieves the government of any burden to establish the

error’s harmlessness.

The Eighth and Eleventh Circuits affirm all Guidelines errors based solely on

an assertion that the Guidelines made no difference to a district court’s choice of

sentence. In the Eighth Circuit, an incorrect application of the Guidelines is found to

be harmless error “when the [district] court specifies the resolution of a particular

issue did not affect the ultimate determination of a sentence, such as when the

district court indicates it would have alternatively imposed the same sentence even

if a lower [G]uideline range applied.” United States v. Still, 6 F.4th 812, 818 (8th Cir.

2021). A simple assertion that the Guidelines calculation would not affect the

11

sentence is enough to insulate mistaken Guidelines calculations from appellate

review. 4 The Eleventh Circuit takes a similar approach. See United States v. Henry,

1 F.4th 1315, 1327 (11th Cir. 2021) (“[B]ecause the district court stated on the record

that it would have imposed the same sentence either way, that is all we need to know

to hold that any potential error was harmless.”); accord United States v. Grady, 18

F.4th 1275, 1291 (11th Cir. 2021) (“a [G]uidelines error is harmless if the district

court unambiguously expressed that it would have imposed the same sentence . . .

regardless of how the guidelines objections had come out”).

The Fourth and Sixth Circuits give some degree of deference to the district

court’s assertion that any errors in Guidelines calculations would be harmless yet

still review to determine whether a sentence is substantively reasonable. In the

Fourth Circuit, to find harmless error, “we must be certain that ‘(1) . . . the district

court would have reached the same result even if it had decided the [G]uidelines issue

the other way, and (2) [make] a determination that the sentence would be reasonable

even if the Guidelines issue had been decided in the defendant’s favor.’” United States

v. Gomez, 690 F.3d 194, 203 (4th Cir. 2012) (citation omitted). See also United States

v. Mills, 917 F.3d 324, 330 (4th Cir. 2019) (same).

The Fourth Circuit has specifically rejected any requirement that the district

court properly calculate the alternative sentence Guidelines range. An alternative

sentence satisfies “the first element of the assumed error harmless inquiry . . .

In two cases from several years ago, the Eighth Circuit conducted a more probing harmless error

analysis before affirming. See United States v. Icaza, 492 F.3d 967, 970-71 (2007); United States v.

Bah, 439 F.3d 423, 432 (2006). However, the Eighth Circuit follows the above-noted standard.

4

12

because the district court has expressly stated in a separate and particular

explanation that it would have reached the same result.” Gomez-Jimenez, 750 F.3d

at 383. Accordingly, an alternative sentence will always render any Guidelines error

harmless unless the sentence is substantively unreasonable.

In reality, as in Grailford’s case, the substantive reasonableness assessment in

the Fourth Circuit is toothless. The Fourth Circuit has only “on rare occasion”

concluded that a district court’s sentence was substantively unreasonable. United

States v. Howard, 773 F.3d 519, 531 (4th Cir. 2014). Indeed, since the Fourth Circuit’s

decision in Howard, Grailford has identified only two published decisions favorable

to a defendant which have found a sentence substantively unreasonable: United

States v. Zuk, 874 F.3d 398 (4th Cir. 2017), and United States v. Nixon, 130 F.4th 420

(4th Cir. 2025). 5 Therefore, in almost all instances, the Fourth Circuit’s harmless

error inquiry simply devolves into one test: did the district judge issue an alternative

sentence? If yes, then any procedural error made by the district judge will be found

harmless.

The Sixth Circuit finds that “[i]f the record shows that the district court would

have imposed its sentence regardless of the Guidelines range, then an error in

calculating the Guidelines range is harmless.” United States v. Morrison, 852 F.3d

488, 491 (6th Cir. 2017). See also United States v. Collins, 800 F. App’x 361, 362 (6th

Cir. 2020) (requiring there be “certainty that the error at sentencing did not cause

In United States v. Fitzpatrick, 126 F.4th 348 (4th Cir. 2025), the Fourth Circuit found a sentence

substantively unreasonable. However, that case was a government appeal where the decision did not

benefit the defendant.

5

13

the defendant to receive a more severe sentence[,]” and that “showing is not easy,”

requiring appellate court to assess whether “an upward variance from the correct

[G]uidelines range would have been reasonable.”).

The First Circuit finds a conclusory statement such as “I would impose

precisely the same sentence even if the applicable sentencing [G]uidelines range

would have been reduced by any or all of the objections made” enough to render error

generally harmless, at least where the sentence is “outside of the Guidelines range.”

United States v. Ouellette, 985 F.3d 107, 110-111 (1st Cir. 2021). However, before

affirming, the court must “still review the sentence for substantive reasonableness.”

Id.

C.

The Majority View Is the Better Approach.

The majority approach more properly implements this Court’s sentencing

jurisprudence. Trial courts “must begin their analysis with the Guidelines and

remain cognizant of them throughout the sentencing process.” Peugh, 569 U. S. at

541; see also 18 U.S.C. § 3553(a)(4)(A) (directing courts to consider the Guidelines

when imposing sentences). If a sentencing determination is truly anchored by the

Guidelines, it is not possible to assume the district court would reach the same result

from a different Guidelines calculation absent a compelling justification for how the

court would get from that calculation to the resulting sentence.

In the plain error review context, failure to accurately apply the Guidelines

“can, and most often will, be sufficient to show a reasonable probability of a different

outcome.” Molina-Martinez, 578 U.S. at 198. Reversal is the usual remedy, as “even

when a defendant fails to raise the issue at sentencing, as “[t]he risk of unnecessary

14

deprivation of liberty particularly undermines the fairness, integrity, or public

reputation of judicial proceedings in the context of a plain Guidelines error because

of the role the district court plays in calculating the range and the relative ease of

correcting the error.” Rosales-Mireles, 585 U.S. at 140.

While “a judge [who] sentence[s] within the Guidelines range . . . often does

not need to provide a lengthy explanation,” Chavez-Meza v. United States, 585 U.S.

109, 113 (2018), this Court requires that “a major departure [from the Guidelines]

should be supported by a more significant justification than a minor one.” Gall, 552

U.S. at 50. The majority approach to harmless error review is faithful to Gall’s

directives, as it requires that a district court justify its alternative sentence. Under

the minority approach, alternative sentences need not comply with Gall.

Under the majority approach, an alternative sentence can render any

procedural error harmless only if the district court’s alternative sentence complies

with Gall, thereby giving both lines of this Court’s sentencing jurisprudence full

effect. The minority view would discard Gall no matter the significance of the

procedural error or degree of departure from the appropriate Guidelines range. This

jettison of the Guidelines and Gall cannot be this Court’s intent.

The question recurs frequently and is unquestionably important in light of the

centrality of the Guidelines in sentencing. Moreover, it is counterintuitive that when

the defendant has preserved the error and the claim is “governed by the more lenient

harmless-error standard of Rule 52(a) rather than the more exacting plain-error

standard of Rule 52(b)[,]” Greer v. United States, 593 U.S. 503, 511-512 (2021), he is

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less likely to win on appeal than in the plain error context. See Davila, 569 U.S. at

607 (“When Rule 52(a)'s ‘harmless-error rule’ governs, the prosecution bears the

burden of showing harmlessness.”).

“It is a ‘rare case where [courts] can be sure that an erroneous Guidelines

calculation did not affect the sentencing process and the sentence ultimately

imposed.’” United States v. Raia, 993 F.3d 185, 195 (3d Cir. 2021) (quoting Langford,

516 F.3d at 219). Since the Fourth Circuit applied the minority view to the district

court’s alternative sentence below, its judgment should be vacated.

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CONCLUSION

For the reasons given above, Grailford’s petition for a writ of certiorari should

be granted. Alternatively, Grailford’s petition should be held pending other petitions

if this Court anticipates that it may grant a writ of certiorari on the issues raised

herein.

Respectfully submitted,

WILLIAM F. NETTLES, IV

Federal Public Defender

for the District of South Carolina

s/ Emily Deck Harrill

EMILY DECK HARRILL

Counsel of Record

Assistant Federal Public Defender

Federal Public Defender’s Office

District of South Carolina

1901 Assembly Street, Suite 200

Columbia, South Carolina 29201

803.765.5079

Emily_Harrill@fd.org

Counsel for Petitioner

March 30, 2026

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