Waiver or Invited Error? It Could be Both...or Either.

 When does a defendant invite error or forfeit his or her argument on appeal? As the Court held in United States v. Carter, the defendant can sometimes do both - or either. 

A grand jury indicted Kejuan Carter of three counts of distributing methamphetamine. Carter subsequently pleaded guilty to one count pursuant to a written plea agreement. In his sentencing memorandum, Carter made two arguments for a downward variance. He first made a policy argument, asserting the Guidelines' focus on drug quantity and purity improperly punished low-level offenders like him. Second, Carter argued his life experience and characteristics justified a downward variance.

During his sentencing hearing, Carter only made a "passing reference" to his policy argument, instead opting to focus on his life experience and characteristics. The district court likewise did not directly discuss Carter's policy argument and instead focused on his the relevant § 3553(a) factors and focused on Carter’s primary argument, his life experience and characteristics. It subsequently denied Carter's motion for a downward variance and sentenced him to 108 months' imprisonment - the lowest sentence recommended by the Sentencing Guidelines. 

After announcing its sentence, the district court asked: “Pursuant to United States v. Bostic, is counsel satisfied that I’ve addressed on the record all non-frivolous arguments asserted?” Carter's counsel agreed and only raised one objection to his sentence -- one unrelated to his policy argument. Carter subsequently appealed. 

On appeal, Carter argued the Court did not adequately address his policy argument.  The Court, however, held it did not need to reach this question either because he forfeited the argument or invited the alleged error. In reaching this conclusion, the Court focused on the district court's Bostic inquiry. It acknowledged that although the district court's initial Bostic question was "somewhat out of place" because it narrowly addressed a a single issue  -- whether counsel was satisfied it had addressed all non-frivolous arguments -- instead of the more general inquiry, Carter either waived his argument or invited error because his counsel specifically conceded the district court's inquiry. More specifically, the Court held that because Carter specifically agreed that the district court had addressed all non-frivolous arguments asserted, he either waived his right to complain on appeal that the Court had not done so, or he "invited the alleged error by encouraging the court to believe" that it did not need to say any more. 

In his concurring opinion, Judge Gilman asserted the government itself waived any waiver or invited error arguments by not arguing the same on appeal. Nevertheless, it held the district court did not commit plain error in sentencing him -- something the Government actually argued on appeal. 

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