United States v. Nickols – Harmless Error and Misstatements about First Step Act Earned-Time Credits at Sentencing

I. Introduction

United States v. Nickols, No. 24-5056 (10th Cir. June 9, 2025), addresses whether a district judge’s erroneous, off-hand remark that the defendant might qualify for First Step Act “earned time credits” renders a life-imprisonment sentence procedurally unreasonable.

Glenn David Nickols (“Defendant” or “Nickols”) pled guilty to Aggravated Sexual Abuse of a Minor and Sexual Exploitation of a Child—offenses that carry a statutory minimum of 30 years and an advisory guideline sentence of life. At sentencing, defense counsel sought a 30-year sentence, emphasizing Nickols’ age and claiming that 30 years would effectively be a life term. The district judge briefly mused that with “good time” and “earned time” reductions, thirty years might translate into ±20–25 years, sparking the appeal.

The central issue on appeal was therefore whether the district court’s misstatement about earned time credits constituted reversible procedural error. The Tenth Circuit affirmed, holding that the error was harmless because it did not influence the ultimate sentence.

II. Summary of the Judgment

Error Identified: The district court erroneously suggested the defendant could accrue First Step Act earned time credits—even though 18 U.S.C. § 3632(d)(4)(D) expressly excludes offenders convicted of 18 U.S.C. chapter 109A and § 2251 from eligibility.
Standard of Review: The panel assumed—without deciding—that abuse-of-discretion review applied (rather than plain-error), thereby viewing the record in Nickols’ favor.
Holding: The error was harmless.
- The district court’s reasons for denying the downward variance focused on “the serious nature of the offenses, the supervisory control over the victim, and the lack of mitigating factors,” not on hypothetical release dates.
- Both court and counsel treated the credit calculation as speculative and moved on quickly.
Disposition: Sentence of life imprisonment affirmed.

III. Analysis

A. Precedents Cited

The decision stands at the intersection of two procedural doctrines—plain-error review and harmless-error analysis—and cites several Tenth Circuit precedents:

United States v. Martinez-Barragan, 545 F.3d 894 (10th Cir. 2008) – reaffirms that unpreserved procedural complaints are ordinarily reviewed for plain error.
United States v. Begay, 470 F.3d 964 (10th Cir. 2006) – acknowledges an “unforeseeable error” exception, but the Nickols panel notes doubts over its continuing vitality.
United States v. Ramirez, 528 F. App’x 915 (10th Cir. 2013) – explains that harmless-error reasoning applies “a fortiori” where plain error would fail.
United States v. Woodmore, 127 F.4th 193 (10th Cir. 2025) & United States v. Gieswein, 887 F.3d 1054 (10th Cir. 2018) – clarify the government’s burden to prove harmlessness by a preponderance.
United States v. Nunez-Carranza, 83 F.4th 1213 (10th Cir. 2023) – details a defendant’s burden under plain-error review.

While none of these cases involved earned time credits directly, together they frame the analytical pathway: identify error, pick the review standard, and test for prejudice/harmlessness. Nickols extends this framework to First Step Act credit misunderstandings.

B. Legal Reasoning of the Court

Error Acknowledged. The Tenth Circuit agreed that the district judge’s statement about earned-time eligibility was legally incorrect because § 3632(d)(4)(D) excludes defendants convicted of sexual exploitation and aggravated sexual abuse from eligibility.
Harmlessness Test Applied. The panel asked: “Would the district court have imposed the same sentence absent the miscue?” Examining the whole record, the court answered “yes,” pointing to:
- The court’s express reliance on seriousness of crimes, breach of caregiver trust, and insufficiency of mitigation.
- The judge’s acknowledgment that earned-time accrual was speculative and that, regardless of precise numbers, Nickols could re-offend if released.
- Defense counsel’s own minimization of the credit calculation (“let’s not quibble over those numbers”).
Standard-of-Review Pragmatism. To sidestep the Begay/unforeseeable-error debate, the panel simply assumed the more defendant-friendly abuse-of-discretion lens and still found harmlessness—thereby ruling against Nickols even under the less deferential standard.

C. Potential Impact of the Judgment

Sentencing Practice: District judges often reference projected release dates. Nickols reassures that minor, speculative misstatements about First Step Act credits will not mandate resentencing if the record shows the sentence rested on weightier factors.
First Step Act Clarification: The decision underscores that offenders convicted of Chapter 109A sex crimes and § 2251 offenses are categorically ineligible for earned-time credits—a statutory point sometimes overlooked at sentencing.
Burden Allocation Reinforced: Prosecutors bear the burden to demonstrate harmlessness on appeal, but Nickols illustrates that this burden can be met through a detailed record emphasizing § 3553(a) factors.
Defense Strategy: Defense counsel must now be prepared to object immediately to any misstatements about credit eligibility; failure to do so may forfeit stronger appellate positions.
Judicial Training: The case could prompt updated bench guides or pattern scripts cautioning against casual references to earned-time credits for statutorily excluded defendants.
Precedential Weight: Although the order is non-precedential under 10th Cir. R. 32.1, it has persuasive value nationwide, especially in circuits exploring similar First Step Act issues.

IV. Complex Concepts Simplified

Good-Time Credit (18 U.S.C. § 3624(b))

Up to 54 days per year that virtually all federal prisoners may earn for good conduct; sex-offense status does not bar accumulation.

Earned-Time Credit (18 U.S.C. § 3632(d)(4))

Extra credits (up to 15 days per 30 days of program participation) created by the 2018 First Step Act. Crucially, prisoners convicted of certain violent or sexual crimes—including those under Chapter 109A (sexual abuse) and § 2251 (child exploitation)—cannot earn these credits.

Procedural Reasonableness

Ensures the sentencing process followed correct law and adequately explained the chosen sentence. Separate from substantive reasonableness, which asks whether the sentence length itself is justified.

Plain Error vs. Harmless Error

Plain Error (Fed. R. Crim. P. 52(b)) – applies when the appellant did not object below; requires showing (1) error, (2) obviousness, (3) effect on substantial rights, and (4) serious impact on fairness/integrity of proceedings.
Harmless Error (Fed. R. Crim. P. 52(a)) – applies when error was preserved (or assumed preserved, as here); reversal required only if the appellate court is not convinced the outcome would be unchanged absent the error.

V. Conclusion

United States v. Nickols strikes a pragmatic balance: it acknowledges a sentencing mistake but refuses to upend a life sentence where the record convincingly shows the judge would have imposed the same term anyway. The opinion thereby:

Clarifies that First Step Act earned-time credits are unavailable to aggravated sexual abusers and child-exploitation offenders.
Confirms that casual judicial remarks—even incorrect ones—will not trigger resentencing when detached from the core § 3553(a) analysis.
Offers practical guidance to courts and counsel on preserving objections and building records that unmistakably reflect the real reasons for chosen sentences.

In the broader legal landscape, Nickols will likely serve as persuasive authority in future litigation over the procedural import of First Step Act misstatements, reinforcing the principle that not every error is a reversible one.