USCA11 Case: 22-12775 Document: 22-1 Date Filed: 03/08/2023 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12775
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RASHADI ANDRE WEARING,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cr-00039-MHC-1
____________________
USCA11 Case: 22-12775 Document: 22-1 Date Filed: 03/08/2023 Page: 2 of 4
2 Opinion of the Court 22-12775
Before JORDAN, ROSENBAUM, and BRANCH, Circuit Judges
PER CURIAM:
Rashad Andre Wearing (whose first name is misspelled as
Rashadi in some of the pleadings) appeals the district court’s
18-month imprisonment sentence imposed upon revocation of his
supervised release. He contends that the sentence was procedur-
ally unreasonable because the district court incorrectly determined
his advisory guideline range as 7-13 months of imprisonment based
on the improperly calculated criminal history category (Category
V) from his original sentence.
When reviewing for procedural reasonableness, we ordinar-
ily consider legal issues de novo and review factual findings for
clear error. See United States v. Rothenberg,
610 F.3d 621, 624
(11th Cir. 2010). We review the district court’s interpretation and
application of the Sentencing Guidelines de novo. See United
States v. Tejas,
868 F.3d 1242, 1244, 1247 (11th Cir. 2017).
In reviewing a sentence for procedural reasonableness, we
must ensure that the district court did not make significant proce-
dural error, such as failing to calculate or improperly calculating
the Guidelines range. See United States v. Grushko,
50 F.4th 1, 17
(11th Cir. 2022). When calculating the guideline imprisonment
range that applies at revocation, “[t]he criminal history category is
the category applicable at the time the defendant was originally
sentenced to a term of supervision.” U.S.S.G. § 7B1.4(a). The
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22-12775 Opinion of the Court 3
applicable commentary explains that the criminal history category
is not to be recalculated except in the rare case in which no criminal
history category was determined when the defendant originally
was sentenced. See § 7B1.4, comment. (n.1).
In the district court, Mr. Wearing asserted that his advisory
guideline range was 6-12 months of imprisonment—rather than 7-
13 months of imprisonment—because his correct criminal history
category was IV, and not V as initially determined at his original
sentencing. The district court ruled that Mr. Wearing’s criminal
history category from the initial sentencing controlled, and also ex-
plained that the dispute about the appropriate advisory guideline
range was moot because the parties had jointly recommended a
sentence of 18 months’ imprisonment with no supervised release
to follow. Mr. Wearing agreed that this latter point was likely cor-
rect. The district court then sentenced Mr. Wearing to 18 months
of imprisonment as jointly recommended by the parties.
We do not consider Mr. Wearing’s challenge to his criminal
history category. Under the doctrine of invited error, we will not
address—not even for plain error—the merits of an error that the
appellant induced the district court to make. See United States v.
Love,
449 F.3d 1154, 1157 (11th Cir. 2006). A defendant invites the
district court to err when he “expressly acknowledge[s]” that the
court may take the action of which he complains on appeal or
when he “expressly requested” that action.
Id.
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4 Opinion of the Court 22-12775
Here Mr. Wearing is mounting a procedural reasonableness
challenge to his 18-month sentence. But he and the government
jointly asked the district court to impose a custodial sentence of 18
months. That recommended sentence was above both of the pos-
sible advisory guideline ranges available (6-12 months if Mr. Wear-
ing’s criminal history category was IV and 7-13 months if Mr.
Wearing’s criminal history category was V). Because Mr. Wearing
is now complaining about a sentence that he expressly requested,
the doctrine of invited error applies. See Love, 454 F.3d at 1157
(holding that because the defendant “induced or invited the district
court to impose a sentence that included a term of supervised re-
lease” the doctrine of invited error prevented him from challenging
the term of supervised release on appeal).
AFFIRMED.
