No Plain-Error Relief for § 1028A Mandatory Minimum Home-Detention Requests Absent Controlling Authority

1. Introduction

Allen J. Pendergrass was convicted after trial of mail fraud, conspiracy to commit money laundering, and aggravated identity theft. The aggravated identity theft convictions triggered a mandatory, consecutive two-year “term of imprisonment” under 18 U.S.C. § 1028A(a)(1), and the statute also bars probation for § 1028A offenders (18 U.S.C. § 1028A(b)(1)).

After an initial appeal, the Eleventh Circuit affirmed the convictions but remanded for resentencing because the district court failed to provide an opportunity for allocution. United States v. Pendergrass, No. 22-13018, 2025 WL 78172, at *11 (11th Cir. Jan. 13, 2025) (unpublished). At resentencing, Pendergrass (age 70) asked the court to serve some portion of his sentence on home detention. The district court stated it did not believe home detention could satisfy the mandatory minimum imprisonment requirement, imposed 24 months for § 1028A plus 6 consecutive months on the other counts (30 months total), and Pendergrass did not object.

On appeal, the question was not merely whether home detention could ever satisfy § 1028A, but whether any error was plain given the lack of a contemporaneous objection.

2. Summary of the Opinion

The Eleventh Circuit affirmed. Applying plain-error review, the court held it need not decide whether the district court’s view of § 1028A was correct because, even assuming error, Pendergrass failed to show the error was “plain.” No binding Supreme Court or Eleventh Circuit authority directly established that home detention may satisfy § 1028A’s mandatory two-year term of imprisonment, and existing Eleventh Circuit precedent (Mangaroo) suggested the opposite by stating home detention “is not incarceration” and is a condition of probation.

3. Analysis

3.1. Precedents Cited (and How They Shaped the Result)

• United States v. Dimitrovski, 782 F.3d 622, 628 (11th Cir. 2015): Cited for general standards—de novo review of Guidelines interpretation and clear-error review of factfinding. It framed the background review principles but did not drive the outcome, which turned on preservation and plain error.
• United States v. Corbett, 921 F.3d 1032, 1037 (11th Cir. 2019): Provided the rule that issues raised for the first time on appeal receive plain-error review. This was pivotal because Pendergrass did not object after the district court imposed the sentence.
• United States v. Lejarde-Rada, 319 F.3d 1288, 1290 (11th Cir. 2003): Supplied the four-part plain-error test. The decision effectively turned on the second element (“plainness”).
• United States v. Boone, 97 F.4th 1331, 1339 (11th Cir. 2024): Supplied the key definition: an error is “plain” only when the explicit language of a statute/rule or binding precedent “directly resolves the issue.” The panel used this to conclude that the absence of controlling authority foreclosed relief.
• Herrera v. U.S. Attorney General, 811 F.3d 1298 (11th Cir. 2016): Pendergrass relied on Herrera to argue home detention can constitute “imprisonment.” The panel distinguished it: Herrera addressed whether the BIA reasonably treated home detention as “confinement” constituting a term of imprisonment for an immigration aggravated-felony analysis—different statute, different context (civil immigration consequences), and a reasonableness framework. Thus it did not “directly resolve” whether § 1028A’s mandatory minimum can be served on home detention.
• United States v. Taylor, 550 F. App'x 819 (11th Cir. 2013) (unpublished): Pendergrass invoked Taylor for the proposition that home detention can be treated like incarceration for counting limits. The panel rejected its force for two reasons: (i) it is unpublished and therefore nonbinding; and (ii) its reasoning concerned statutory-maximum calculations in a supervised release revocation posture, not satisfaction of a mandatory minimum “term of imprisonment.”
• Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342, 1355 n.5 (11th Cir. 2018): Cited to underscore that unpublished decisions like Taylor are not binding and carry only persuasive weight.
• United States v. Ferguson, 369 F.3d 847, 852 (5th Cir. 2004): Appeared only through Taylor’s quotation. The panel treated it as, at most, an out-of-circuit proposition about exceeding statutory maxima by combining incarceration and home detention, which still did not answer whether home detention can satisfy a mandatory minimum.
• United States v. Mangaroo, 504 F.3d 1350 (11th Cir. 2007): This was the most consequential precedent. There, the Eleventh Circuit held a district court plainly erred by using probation (with home detention as a condition) to satisfy a mandatory minimum for a firearm offense, reasoning that home detention is a condition of probation and “is not incarceration.” The panel here cited Mangaroo as cutting against Pendergrass’s theory and, at minimum, preventing any claimed error from being “plain.”

3.2. Legal Reasoning

The panel’s logic proceeded in three steps:

1. Statutory baseline: Section 1028A requires a two-year “term of imprisonment” consecutive to the predicate felony sentence and separately bars probation for § 1028A convictions (18 U.S.C. § 1028A(a)(1), (b)(1)). The sentencing judge concluded the statute required imprisonment and did not authorize home detention to meet the mandatory minimum.
2. Guidelines argument does not create binding authority: Pendergrass relied on U.S.S.G. § 5F1.2, which allows home detention “as a condition of probation or supervised release, but only as a substitute for imprisonment.” The panel treated this language as insufficient to make any district-court error “plain,” particularly because § 5F1.2 speaks in terms of conditions of probation/supervised release, while § 1028A speaks in terms of a mandatory “term of imprisonment” and prohibits probation.
3. Plain-error bottleneck: Because Pendergrass did not object, he needed controlling authority directly establishing that home detention can satisfy § 1028A’s mandatory minimum. Under Boone, the absence of such authority defeats “plainness.” The cases he cited (Herrera and Taylor) did not directly resolve the issue; meanwhile, Mangaroo suggested home detention is not incarceration and is linked to probation—making it “far from clear” that the sentencing court could do what Pendergrass requested.

Notably, the panel deliberately avoided a merits holding on whether § 1028A ever permits home detention in satisfaction of its minimum term. The decision is thus primarily a preservation-and-plain-error ruling rather than a definitive statutory interpretation of § 1028A.

3.3. Impact

The decision’s practical effect is procedural but important:

• Preservation matters: Defendants who want a district court to treat home detention as satisfying a mandatory minimum must raise the issue clearly and support it with authority at sentencing; waiting until appeal will likely trigger plain-error review and near-certain affirmance absent binding precedent.
• Signals headwinds on the merits: Although the panel did not decide the ultimate statutory question, its reliance on United States v. Mangaroo signals that Eleventh Circuit law may be skeptical of arguments equating home detention with “imprisonment” for mandatory minimums—especially when the governing statute prohibits probation.
• Narrow precedential footprint: Because the opinion is “NOT FOR PUBLICATION,” it is not binding precedent, but it provides a roadmap for how panels may analyze similar plain-error claims.

4. Complex Concepts Simplified

• Mandatory minimum / “term of imprisonment”: A floor Congress requires the judge to impose as incarceration time. Courts often treat “imprisonment” as confinement in a penal or custodial setting, distinct from probationary conditions.
• Consecutive sentence: A term that must run after (not at the same time as) another sentence. Section 1028A requires the two-year term to be consecutive.
• Home detention: A restrictive condition typically administered through probation/supervised release (monitoring, curfews), not necessarily treated as “incarceration” for all statutory purposes.
• Probation vs. supervised release: Probation is an alternative to imprisonment imposed at sentencing; supervised release is a monitoring period after imprisonment. The Guidelines contemplate home detention as a condition of one of these regimes, not as a free-standing “imprisonment” term.
• Plain-error review: A demanding appellate standard applied when the defendant failed to object below. The defendant must show an obvious (plain) legal mistake under controlling authority and that it affected the outcome and the integrity of the proceedings.
• Allocution: The defendant’s right to address the court before sentencing. The earlier remand in this case was solely to correct the denial of that opportunity.

5. Conclusion

United States v. Allen Pendergrass stands for a clear appellate takeaway: absent controlling Supreme Court or Eleventh Circuit authority directly authorizing home detention to satisfy § 1028A’s mandatory two-year “term of imprisonment,” a defendant who did not object at sentencing cannot obtain plain-error relief. The court’s discussion also highlights the gravitational pull of United States v. Mangaroo, which characterizes home detention as a probationary condition and “not incarceration”—a characterization that, at minimum, makes any contrary interpretation far from “plain.”