PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
              _______________

                   No. 19-3239
                 _______________

         UNITED STATES OF AMERICA

                         v.

         FRANCISCO NICHOLAS BRITO
                    a/k/a
                Nicholas Brito
                    a/k/a
                    Jose,
                               Appellant
              _______________

   On Appeal from the United States District Court
            for the District of New Jersey
            (D.C. No. 2:18-cr-00557-001)
     District Judge: Honorable Claire C. Cecchi
                  _______________

                Argued: July 8, 2020

Before: McKEE, BIBAS, and FUENTES, Circuit Judges

            (Filed: September 21, 2020)
                 _______________
Alison Brill                             [ARGUED]
Office of Federal Public Defender
22 South Clinton Avenue
Station Plaza #4, 4th Floor
Trenton, NJ 08609

Lisa M. Mack
Office of Federal Public Defender
1002 Broad Street
Newark, NJ 07102

   Counsel for Appellant

Mark E. Coyne
John F. Romano                           [ARGUED]
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102

   Counsel for Appellee
                    _______________

                OPINION OF THE COURT
                    _______________

BIBAS, Circuit Judge.
    Every defendant deserves a fair shake at sentencing. Fran-
cisco Brito, a felon, claims that he changed his ways once his
daughter was born. But in restating his criminal history, the
sentencing judge erroneously implied that his criminal career
continued after she was born. That honest factual mistake




                              2
undermined his argument for leniency. His lawyer did not ob-
ject, but the error was plain. So we will vacate and remand for
resentencing.
                        I. BACKGROUND

    This appeal turns on the interplay between Brito’s criminal
history and the District Court’s comments at sentencing. Un-
derstanding both is crucial.
   A. Brito’s actual criminal history
   Francisco Brito has a checkered past. He admits as much.
For many years he stayed in this country illegally, dealing her-
oin. Those dealings form the backbone of his criminal record
and deportation history.
    1. Brito’s first removal from the United States. Brito was
first arrested in March 2001. He delivered 685 grams of heroin
to an undercover officer, with predictable results. But though
it was his first arrest, it was not his first drug deal; he later ad-
mitted that he had been selling heroin for more than a year. He
pleaded guilty and was sentenced to forty-six months’ impris-
onment. Upon release, an immigration judge ordered him re-
moved to the Dominican Republic. He was sent back there in
2004.
    2. Brito’s second removal. Brito soon returned to the
United States illegally. In 2007, state and federal officials ar-
rested him for packaging several kilos of heroin and importing
many more. Both authorities charged him based on the same
underlying conduct. In New Jersey, Brito pleaded guilty to two
state offenses and was sentenced to about five years’




                                 3
imprisonment. In the Southern District of New York, he
pleaded guilty to three federal drug crimes along with illegal
reentry. After he served his time, Brito was removed to the Do-
minican Republic in 2013. That raised his lifetime deportation
total to two.
    3. Brito’s most recent illegal reentry. Sometime after his
second removal in 2013, Brito again returned to the United
States illegally. He admits that this was wrong. But unlike his
previous reentries, Brito claims this one was not for drugs, but
for his family.
    Brito’s first child was born around 2007, shortly after he
was last imprisoned. After he was removed to the Dominican
Republic in 2013, his wife stayed in New York and struggled
to care for their kids alone. His daughter has a learning disorder
and reading impairment. His young son seems to have deficits
in his speech, language, and motor skills. So Brito returned to
the States sometime later to help his wife take care of them.
    But Brito was here illegally. One day in 2018, he was ar-
rested. So began this federal prosecution for illegal reentry.
   B. The sentencing hearing
    Brito pleaded guilty to illegal reentry. Based on his criminal
history, the Sentencing Guidelines recommended a range of
seventy to eighty-seven months’ imprisonment.
   At sentencing, Brito asked for a minimal sentence, one well
below the Guidelines range. The core of his plea for leniency
was that he had committed no crimes since his children were
born and that he had devised a plan to support them from afar.




                                4
He wanted to return to the Dominican Republic quickly to do
just that.
    At sentencing, the District Court began by noting that it had
“listened very carefully” to the parties’ oral presentations and
had read all of their written submissions. App. 51. It then re-
cited Brito’s criminal history, the key to this appeal:
           The Defendant’s criminal history record con-
       sists of a drug conviction in the Eastern District
       in Pennsylvania during 2001, for which he was
       incarcerated in the Bureau of Prisons for 46
       months. Following service of this sentence, the
       Defendant was deported. In 2010, the Defendant
       was convicted in the Southern District of New
       York for two separate drug-related offenses for
       which he was incarcerated in the Bureau of Pris-
       ons for 6 years.

           Following service of those sentences, the De-
       fendant was again deported. In 2011, the De-
       fendant was sentenced to 5 years[’] incarceration
       in the State of New Jersey for yet another drug-
       related offense. Again, the Defendant was de-
       ported.

App. 53 (emphases added).
    Just after this statement, the judge asked: “Is there anything
incorrect about that statement of the facts here?”

“I have to be honest, I wasn’t making a time
line when the Court was speaking. But if it tracks what’s in the
Presentence Report, then, yes, it is.”

    The District Court denied Brito’s request for a variance. Af-
ter weighing each of the 18 U.S.C. § 3553(a) factors, it sen-
tenced Brito to the bottom of the Guidelines range: seventy
months. Brito now appeals.
   C. Standard of review
   The District Court had jurisdiction under 18 U.S.C. § 3231,
and we have jurisdiction under § 3742(a). We decline to review
waived arguments, but we assess forfeited ones for plain error.
United States v. Olano, 

, 733–34 (1993).
    We review preserved sentencing errors for abuse of discre-
tion. See United States v. Tomko, 

, 567 (3d Cir.
2009). If the claimed error is procedural, we must ensure that
the district court did not fail to calculate (or miscalculate) the
Guidelines range; treat the Guidelines as mandatory; gloss over
the § 3553(a) factors; choose a sentence based on a clearly er-
roneous fact; or inadequately explain the chosen sentence. Gall
v. United States, 

, 51 (2007). But if it is a substan-
tive challenge for reasonableness, we will affirm unless no rea-
sonable court would have imposed that sentence for the reasons
provided. 

.
   II. WHEN THE DISTRICT COURT MISSTATED BRITO’S
      CRIMINAL HISTORY, COUNSEL’S “NO OBJECTION”
             WAS A FORFEITURE, NOT WAIVER

    Though the parties agree that Brito’s lawyer said “no ob-
jection” at sentencing, they disagree about its import. The Gov-
ernment claims that it was a waiver, citing our recent decision
in United States v. James, 

(3d Cir. 2020). It reads
James as creating a per se rule: “[W]hen a litigant




                                6
‘affirmative[ly]’ assents in the district court, then ‘he has
waived any basis to seek review’ on appeal.” Appellee’s Br. 8
(quoting 

). Not so. James held no such
thing. We will review for plain error.
   A. We assess waiver on the whole record, not with
      per se rules

    In Olano, the Supreme Court laid out the distinction be-
tween forfeiture and waiver: “Whereas forfeiture is the failure
to make the timely assertion of a right, waiver is the ‘inten-
tional relinquishment or abandonment of a known right.’ 

(quoting Johnson v. Zerbst, 

, 464
(1938)). To be a waiver, the failure to assert a right must be
intentional, and the right relinquished must be known. Any-
thing less is mere forfeiture. See

to assess a waiver is to review the whole rec-
ord. See Gov’t of the Virgin Islands v. Rosa, 

, 291
(3d Cir. 2005). James reaffirmed this approach. In James, an
attorney refused to object to the use of a chart as a demonstra-
tive 

, 344. He affirmatively stated “no ob-
jection” to such a use.

he had waived any
objection to the use of the chart—but not just because of his
words. Instead, we looked to context. We noted that the attor-
ney had had a chance to review the chart in advance.

He had objected to its being offered into evidence under Rule
1006.

objected to using a different chart as a
demonstrative aid later in the trial.

James
never disputed that his lawyer had waived the claim.

“Based on this record . . . and his failure to dispute waiver on
appeal,” we explained, “James’s affirmative no-objection




                                7
statement to the chart’s demonstrative use” amounted to
waiver.

create a per se rule equating “no objection”
with waiver. Given Olano, any such rule would be improper.
So Brito’s lawyer’s statement does not itself prove waiver.
Context controls.
   B. In context, Brito’s “no objection” shows forfeiture,
      not waiver

    Context shows that Brito’s counsel neither intentionally re-
linquished nor abandoned a known right. Rather, she failed to
timely assert a right. That is forfeiture, not waiver. See 

. As she explained: “I have to be honest, I
wasn’t making a time line when the Court was speaking.” App.
53. “But if [the statement] tracks what’s in the Presentence Re-
port, then, yes, it is” acceptable.

discuss, what the District Court said did not
“track what’s in the Presentence Report.” Thus, Brito’s lawyer
never endorsed it. Even if she had, Brito’s case is a far cry from
James’s. Brito’s appellate counsel does dispute waiver on ap-
peal. And the record here reflects counsel’s honest error. That
is a forfeiture, not waiver.
       III. THE DISTRICT COURT PLAINLY ERRED AT
            SENTENCING BY MISSTATING BRITO’S
                    CRIMINAL HISTORY

   Because Brito forfeited his objection to the court’s account
of his criminal history, we review for plain error. Brito must
prove that there was an error; that the error was plain; that it




                                8
prejudiced his substantial rights; and that not correcting the er-
ror would seriously affect the fairness, integrity, or public rep-
utation of judicial proceedings. 

, 733–
37. That burden is heavy, but Brito carries it.
   A. The District Court erred by claiming that Brito had
      been removed thrice

   The District Court suggested that Brito had been removed
from the United States three times. He had not. He was re-
moved only twice: once in 2004 and once in 2013.
    The District Court also suggested that this third removal
was for distinct criminal conduct. That was also mistaken.
While the charges were separate, they stemmed from a single
arrest. The court erred in suggesting otherwise. It rightly noted
that Brito had pleaded guilty in federal court to “two separate
drug-related offenses for which he was incarcerated” for sev-
eral years. App. 53. And it rightly noted that this sentence
ended with his removal.

made a mistake. The
District Court said the New Jersey sentence was “for yet an-
other drug-related offense.”

was not
“yet another”—not really. As noted above, it may have been
another charge against Brito, but it stemmed from the same
conduct as his federal conviction.
    Compounding its error, the District Court then said that,
following this New Jersey sentence, “[a]gain, the Defendant
was deported.”

implies a third re-
moval. But it was not a third removal—it was the same removal
the court had noted before.




                                9
    The Government asks us to read the District Court’s state-
ment differently. It claims that the final sentence—“Again, the
Defendant was deported”—merely reinforced the removal al-
ready mentioned. But that reading ignores context, as well as
the repetitive sentence structure the District Court chose. The
court did an admirably thorough job at sentencing, but this
statement was error.
   B. That error was plain
    The true facts are undisputed. The sentencing judge said
that Brito had three prior deportations. He did not; he only had
two. And the conduct underlying the federal and state charges
was not distinct. The error was plain.
   C. The error went to the core of Brito’s claim for
      leniency, prejudicing him at sentencing

    The District Court’s error undermined Brito’s case for leni-
ency. The heart of his argument was that he had committed no
crime since his daughter was born around 2007, shortly after
his last arrest. The District Court’s suggestion that he had an-
other conviction and deportation after that arrest thus undercut
his claim. The District Court was also troubled by his repeated
serious convictions, explaining that “[i]t is a drug crime at the
heart of everything.” App. 53–54. And “given his history in
this particular case, I think there is a need for specific deter-
rence in that this has happened in the past.” App. 54. The court
reiterated and again emphasized that point. So the District
Court’s error permeated its reasoning. That hurt Brito’s case.




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   D. Not correcting the error would undermine the
      integrity of judicial proceedings

    A sentence should not rest on factual errors that skew the
amount of punishment needed. But that is what happened here.
Brito advanced a compelling claim for leniency. Yet the Dis-
trict Court’s factual error undermined his argument. That
struck at the integrity of his sentence. We will thus vacate and
remand for resentencing.
 IV. THE DISTRICT COURT MEANINGFULLY CONSIDERED
         BRITO’S ARGUMENTS FOR A VARIANCE

   Brito also objects that the District Court was not thorough
enough in considering his arguments for a variance. But the
court considered his arguments several ways, each clear on the
record:
   (1) It noted that it had “received and reviewed” Brito’s sen-
       tencing memorandum, where he made those arguments
       (App. 37);
   (2) It noted that it had “listened very carefully” to his law-
       yer’s oral argument on that point (id. at 51);
   (3) It noted that it had “carefully considered . . . whether
       there should be any lessening of the incarceration” (id.
       at 55); and
   (4) It “looked at the entirety of the [§] 3553(a) factors” be-
       fore explaining that a downward variance was not war-
       ranted for several specific reasons (id. at 55–56).




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On our deferential review, we require no more. See 

. The District Court did not abuse its discretion.
     V. BRITO’S SENTENCE OF SEVENTY MONTHS WAS
             SUBSTANTIVELY REASONABLE

    “It will be a rare case when it is clear that no acceptable
reasoning can justify a given sentence.” United States v. Lev-
inson, 

, 195 (3d Cir. 2008). That is because we
defer greatly to the District Court’s weighing of the § 3553(a)
factors. 

. Here, the District Court’s rea-
sons justify the sentence imposed.
    The court’s analysis was thorough. It weighed the § 3553(a)
factors, commenting on the seriousness of this crime, Brito’s
extensive criminal history, and the need for both specific and
general deterrence. After discussing each factor, it decided that
the bottom of the range was fitting. This is not the type of rare,
objectively unreasonable sentence that we would reverse. We
will not do so here.
                            *****
    Francisco Brito illegally reentered the United States. The
sentence he received was reasonable. But the court who im-
posed it made a factual error when reciting Brito’s criminal
history—an error that directly undermined his case for a vari-
ance.
   Perhaps Brito’s case for leniency will carry the day; per-
haps not. But he deserves the chance to have his arguments
heard and understood based on his actual criminal history. We
will vacate and remand to allow just that.




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