“Harmless” Guideline Miscalculations after United States v. Abercrombie:
Fifth Circuit Clarifies When Clear Crime–of–Violence Errors Do Not Satisfy the Plain-Error Standard

Introduction

The Fifth Circuit’s unpublished but precedentially persuasive decision in United States v. Abercrombie, No. 24-30483 (5th Cir. Aug. 13 2025), addresses a recurring problem in federal sentencing: What happens when a district court (1) clearly misapplies the Sentencing Guidelines’ crime-of-violence enhancement, (2) does so by the forbidden expedient of relying solely on a Presentence Investigation Report (PSR), yet (3) announces—both orally and in the written Statement of Reasons—that it would have imposed the identical sentence even under a lower guideline range?

Defendant–appellant Mark Abercrombie pleaded guilty to possessing a firearm after a felony conviction, 18 U.S.C. § 922(g)(1). The district court counted two Louisiana “domestic-abuse battery” convictions as crimes of violence under U.S.S.G. § 2K2.1(a)(1), raising Abercrombie’s base offense level from 20 to 26, and ultimately sentenced him to 132 months—near the top of the (inflated) 110-to-137-month range. Abercrombie did not object below, so the Fifth Circuit reviewed for plain error.

The panel (Judges Wiener, Douglas, and Ramirez) found the first two prongs of plain-error review satisfied: the district court clearly and obviously erred when it relied exclusively on the PSR and when it classified Louisiana domestic-abuse battery—a general-intent offense—as a crime of violence after Borden and Garner. Nevertheless, the court affirmed, holding that Abercrombie failed to show the error affected his substantial rights because the record contained a sufficiently explicit “I-would-impose-the-same-sentence” finding anchored in the 18 U.S.C. § 3553(a) factors.

Summary of the Judgment

• Issue 1 – Procedural Error: District court improperly relied solely on PSR to determine prior convictions were “crimes of violence.” Fifth Circuit: clear and obvious error.
• Issue 2 – Substantive Error: Louisiana domestic-abuse battery (a general-intent crime) does not categorically satisfy § 4B1.2(a)’s force clause; misclassification therefore also clear error.
• Plain-Error Outcome: Prongs (1) error and (2) obviousness met; prong (3) failed because the record demonstrated the sentencing court would have imposed the same 132-month sentence irrespective of the Guidelines range.
• Government’s Motion to Supplement: Denied for untimeliness; could not cure reliance on PSR.
• Holding: Sentence affirmed.

Analysis

A. Precedents Cited and Their Influence

1. United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009) – established plain-error framework for unobjected-to Guidelines errors.
2. Puckett v. United States, 556 U.S. 129 (2009) & Olano, 507 U.S. 725 (1993) – four-part plain-error test, especially prong (3) (substantial rights) and prong (4) (integrity of proceedings).
3. Borden v. United States, 593 U.S. 420 (2021) – reckless conduct cannot satisfy ACCA/Guidelines force clause; provides mens-rea anchor.
4. United States v. Garner, 28 F.4th 678 (5th Cir. 2022) – Louisiana aggravated assault with a firearm is a general-intent crime, thus not a crime of violence post-Borden. The panel analogized domestic-abuse battery to Garner.
5. Ochoa-Cruz, 442 F.3d 865 (5th Cir. 2006) and Martinez-Vega, 471 F.3d 559 (5th Cir. 2006) – bar on relying solely on PSRs for categorical analysis.
6. Molina-Martinez v. United States, 578 U.S. 189 (2016) – Guideline error usually affects substantial rights unless record shows otherwise. Used as the template for the “unusual circumstances” exception.

B. Court’s Legal Reasoning

1. The Error Phase

(1) Categorical/Modified-Categorical Misstep: The district court did not examine Shepard documents; it simply accepted the PSR’s label. Under Ochoa-Cruz, that is procedural error.
(2) Substantive Misclassification: After Borden and Garner, Louisiana general-intent crimes encompassing reckless conduct fall outside § 4B1.2(a). Domestic-abuse battery, held the panel, is general-intent under state cases like Gatewood and Wilson. Therefore, classifying it as a crime of violence was “clearly and obviously erroneous.”

2. The Prejudice (Substantial-Rights) Phase

Ordinarily, an incorrect guideline range suffices to show prejudice (Molina-Martinez). But the Supreme Court left open an “unusual circumstances” caveat: if the record demonstrates the district judge would have imposed the same sentence independently of the Guidelines, prong (3) is not met.

Here, two data points convinced the panel:

• Sentencing Hearing: Judge expressly tied the 132-month term not merely to the guideline range but also to § 3553(a) factors, emphasizing Abercrombie’s violent history and the need for protection of the public.
• Statement of Reasons (SOR): The judge checked the boiler-plate box that “the same sentence would have been imposed even if the guideline range is later found incorrect.” The panel treated this as dispositive evidence of non-prejudice.

Because Abercrombie could not concretely show a “reasonable probability” of a lower sentence, he failed prong (3); the court therefore declined to proceed to prong (4).

C. Potential Impact of the Decision

• Reinforces the Power of SOR “Harmless-Error” Findings. District judges within the Fifth Circuit will likely incorporate explicit same-sentence findings whenever they sense possible guideline vulnerabilities, inoculating their judgments against plain-error reversal.
• Extends Garner to Domestic-Abuse Battery. Although unpublished, the opinion provides persuasive authority that Louisiana domestic-abuse battery (and by extension similar general-intent offenses) is categorically not a crime of violence.
• Signals Strict Timeliness for Rule 10(e) Supplements. The panel’s refusal to accept the Government’s late-filed Shepard documents underscores that the Government must build the record in the district court or, at the latest, while briefing is underway.
• Clarifies Defense Strategy on Appeal. To secure relief under plain-error review, appellants must mine the record for anything negating an “alternative-sentence” finding or else affirmatively show why an identical sentence was unlikely.

Complex Concepts Simplified

Plain-Error Review

A four-part test applied when a party fails to object in the district court: (1) error, (2) that is clear or obvious, (3) affecting substantial rights (usually meaning it likely changed the outcome), and (4) seriously affecting the fairness or integrity of proceedings.

Categorical vs. Modified-Categorical Approach

Court looks only at the statutory elements, not the facts, of a prior conviction. If the statute has alternative elements (“divisible”), the court may consult limited documents (indictment, plea colloquy) to identify which element was involved. PSRs alone are not permitted evidence.

Crime of Violence (Guidelines)

A prior offense that (1) has as an element the use, attempted use, or threatened use of physical force against another (“force clause”), or (2) matches an enumerated list (robbery, arson, etc.). After Borden, the force clause excludes crimes that can be committed with mere recklessness.

Statement of Reasons (SOR)

A mandatory form explaining the district judge’s sentencing rationale. A checked box indicating “same sentence irrespective of the guideline range” can defeat the prejudice prong on appeal.

Conclusion

United States v. Abercrombie simultaneously strengthens two doctrinal threads. First, it underscores that certain Louisiana domestic-violence offenses are not crimes of violence post-Borden, pushing prosecutors to gather Shepard-compliant records if they hope to salvage enhancements. Second, it confirms that even clear and obvious guideline errors will not yield resentencing when the district judge has made a robust alternative-sentence finding tied to § 3553(a) factors. For practitioners, the decision is both a sword and a shield: a sword against PSR-only crime-of-violence determinations, and a shield for sentences that the record convincingly shows the judge would have imposed anyway. Going forward, defense counsel must preserve objections early and marshal evidence of likely prejudice, while prosecutors must ensure any missing Shepard documents are timely filed—or risk being locked out by Rule 10(e). In the broader sentencing landscape, Abercrombie cautions that harmless-error principles may increasingly insulate district-court sentences from attack, even in the face of undeniable guideline mistakes.