United States v. Herman Steen
CourtCourt of Appeals for the Eleventh Circuit
Date FiledNovember 3, 2026
Docket25-10734
StatusUnpublished
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Full Opinion
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NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 25-10734
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERMAN DEWAYNE STEEN,
a.k.a. Herman Dewayne Lee,
a.k.a. Dewayne Lee,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:23-cr-00317-MHH-GMB-1
____________________
Before NEWSOM, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
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2 Opinion of the Court 25-10734
Herman Steen appeals his 60-month sentence imposed after
he pleaded guilty to two counts of possession of a firearm by a
convicted felon. He argues that, in determining his guidelines
range, the district court miscalculated his criminal history points
when it assigned three points to a prior state drug possession
conviction that was too old to be scored. The government in turn
argues that Steen invited the error because he agreed at sentencing
that the criminal history score was correctly calculated, and he did
not bring up the alleged error until a post-judgment motion for
reconsideration. After review, we affirm.
I. Background
Steen was charged in a superseding indictment with two
counts of unlawful possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). One possession occurred on
December 14, 2022, and the other occurred on March 12, 2023.
Steen entered an open guilty plea as to both counts, and the district
court accepted his pleas.
Prior to sentencing, the United States Probation Office
prepared a presentence investigation report (“PSI”). Two of
Steen’s prior convictions are relevant to this appeal. First, Steen’s
PSI indicated that he had a July 2003 Alabama conviction for
possession of a controlled substance for which he was sentenced to
10 years’ imprisonment, “split with 9 months to serve, followed by
2 years’ probation.” Steen was released in September 2003, but
then violated his probation in 2004 when he was arrested on
another charge. As a result of his new arrest, his probation was
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25-10734 Opinion of the Court 3
revoked and he was ordered to serve 10 years’ imprisonment. The
PSI indicated that he was released from custody on June 16, 2008,
and that this conviction scored three criminal history points under
U.S.S.G. §§ 4A1.1(a) and 4A1.2(k). 1 Second, Steen had a 2004
Alabama second-degree assault conviction and was sentenced to 15
years’ imprisonment. The PSI indicated that he was released from
custody on June 16, 2008, and that this conviction scored three
criminal history points under U.S.S.G. § 4A1.1(a). The PSI
indicated that Steen’s resulting guidelines range was 77 to 96
months’ imprisonment based on his total offense level of 21 and his
criminal history category of VI.
In his objections to the PSI, Steen agreed that his criminal
history score was correctly calculated and that the 2003 drug
conviction and 2004 assault convictions ended on the same date
and fell within the relevant 15-year window for scoring. However,
he argued that his criminal history score was “overstated by 6
points” because those convictions barely fell within the relevant
15-year window by a mere five months. In other words, if he had
committed the underlying possession offenses just a few months
later, his 2003 and 2004 Alabama convictions would not have
1 The guidelines provide that three criminal history points “are added for each
prior sentence of imprisonment exceeding one year and one month.” U.S.S.G.
§ 4A1.1(a). However, “[a] sentence imposed more than fifteen years prior to
the defendant’s commencement of the instant offense is not counted unless
the defendant’s incarceration extended into this fifteen-year period.” Id.
Section 4A1.2(k) provides guidance on how to make these calculations for
revocations of probation. See id. § 4A1.2(k).
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scored any criminal history points because they would have been
too old.
At sentencing, Steen clarified that he was not objecting to
the 2003 and 2004 prior convictions scoring criminal history points.
Instead, he was arguing for a downward variance based on
“overstated” criminal history. Accordingly, the district court
adopted the guidelines calculation in the PSI and proceeded to
address Steen’s variance argument. Steen again asserted that but
for a “five or six-month window” the 2003 and 2004 prior
convictions would not have fallen within the relevant 15-year
period for scoring, which would have lowered his guidelines range
by 20 months’ imprisonment. Accordingly, he argued that in light
of this fact plus other relevant 18 U.S.C. § 3553(a) considerations, a
downward variance sentence of 57 months’ imprisonment would
be appropriate. The government opposed any variance, citing
Steen’s lengthy criminal history (both scored and unscored
offenses), and argued for a sentence of 92 months’ imprisonment.
The district court explained that “there [was] merit to
[Steen’s] argument about the age [of his prior convictions]” and his
criminal history points. Accordingly, after considering that
argument and the § 3553(a) factors, the district court varied
downward and imposed a sentence of 60 months’ imprisonment to
be followed by 3 years’ supervised release.
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Nine days later, Steen filed a counseled “motion for
reconsideration” 2 in which he for the first time asserted that his
criminal history score was erroneously calculated, arguing that his
10-year sentence for the prior 2003 drug conviction was too old to
be scored. Specifically, he argued that he was serving concurrent
sentences for the 2003 drug possession conviction and the 2004
assault conviction, and that both were Class C felonies under
Alabama law. He explained that end of sentence dates (“EOS”) for
Class C felonies under Alabama law “are calculated with good
time,” and prior to 2023, “a 15 year class C felony had a EOS of 4
years 7 months and 22 days and a 10 year class C had a EOS of 3
year[s] 2 months and 18 days.” Thus, based on these EOS
calculations, he asserted that the 10-year sentence for the 2003
conviction “was actually over two years before the EOS date of the
15-year sentence” even though the PSI listed the same EOS date for
both convictions.3 Therefore, he asserted that his 2003 drug
conviction should not have scored any criminal history points
2 Steen did not state any rule of criminal procedure or other authority on
which he relied as a basis for authorizing a motion for reconsideration in a
criminal case. See United States v. Vicaria, 963 F.2d 1412, 1413 (11th Cir. 1992)
(explaining that “a motion for reconsideration of a district court order in a
criminal action is not expressly authorized by the Federal Rules of Criminal
Procedure”).
3 Although Steen asserted that the 10-year sentence for the 2003 drug
conviction must have ended prior to the stated EOS date listed in the PSI, he
did not submit any actual evidence or authority to support this conclusion,
such as how “good time” is determined under Alabama law or any facts
indicating that he received good time.
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because the sentence fell outside the relevant 15-year scoring
window, making the correct guidelines range 70 to 87 months’
imprisonment. He acknowledged that he “argued for a variance
[because] his criminal history appear[ed] overstated by 6 points”
based on the 2003 and 2004 prior convictions and that the district
court granted his request, “which effectively negated the 6 points
of criminal history.” Nevertheless, he maintained that without the
three criminal history points for his 2003 drug conviction, “he
should receive a sentence of time served or . . . house arrest for 6
months.” 4
The district court held a hearing on the motion for
reconsideration. At the hearing, Steen’s counsel admitted that the
court was now without jurisdiction under Federal Rule of Criminal
Procedure 35 to correct the judgment because by that time more
than 14 days had passed since the judgment issued. 5 However,
counsel asked the court to state for the record whether it would
have been inclined to grant the motion and what effect it would
have had on the sentence imposed. The government agreed that
4 A few days later, even though the motion for reconsideration was still
pending, Steen filed a notice of appeal.
5 Rule 35 provides that “[w]ithin 14 days after sentencing, the court may
correct a sentence that resulted from arithmetical, technical, or other clear
error.” Fed. R. Crim. P. 35(a). This time limit is jurisdictional and is intended
to prevent “abuse of the rule by limiting its application to acknowledged and
obvious errors in sentencing.” United States v. Phillips, 597 F.3d 1190, 1196
(11th Cir. 2010). Outside of Rule 35 or as otherwise authorized by statute,
district courts do not have the “inherent authority . . . to modify a sentence.”
Id. at 1196–97.
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25-10734 Opinion of the Court 7
the district court was without authority to amend or correct the
sentence under Rule 35. The district court explained that it could
not say whether, under the corrected guidelines range, it would
have varied downward further because the downward variance
already accounted for Steen’s argument that the criminal history
points were overstated. Thus, taking the criminal history points
“out of the equation” the court would have to “see whether any
other considerations would cause the [c]ourt to vary below 60
months,” and the court opined that it was not “appropriate for [it]
to weigh in on that” question. Accordingly, the district court
denied the motion for reconsideration as moot.
II. Discussion
Steen argues that the district court committed procedural
error when it assigned three points to his 2003 prior drug
possession conviction that was too old to be scored. The
government in turn argues that Steen invited the error because he
agreed at sentencing that the district court correctly calculated the
criminal history score. We agree with the government.
“It is a cardinal rule of appellate review that a party may not
challenge as error a ruling or other trial proceeding invited by that
party.” United States v. Haynes, 764 F.3d 1304, 1309 (11th Cir. 2014).
“Where invited error exists, it precludes a court from . . .
reversing.” United States v. Love, 449 F.3d 1154, 1157 (11th Cir.
2006). “[T]he invited error doctrine stems from the common sense
view that where a party invites the trial court to commit error, he
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cannot later cry foul on appeal.” United States v. Charles, 129 F.4th
1334, 1339 (11th Cir. 2025) (quotations omitted).
Here, Steen invited the alleged error because he expressly
stated in his objections to the PSI and at sentencing that the
criminal history score was correctly calculated.
Although Steen argues that he did not invite the error
because he filed a motion for reconsideration as soon he realized
the scoring error, his efforts came too late. First, “a motion for
reconsideration of a district court order in a criminal action is not
expressly authorized by the Federal Rules of Criminal Procedure.”
See Vicaria, 963 F.2d at 1413. Second, even assuming a motion for
reconsideration is proper in a criminal case, it “cannot be used to
relitigate old matters, raise argument or present evidence that
could have been raised prior to the entry of judgment. This
prohibition includes new arguments that were previously
available, but not pressed.” Wilchombe v. TeeVee Toons, Inc., 555
F.3d 949, 957 (11th Cir. 2009) (quotations and internal citation
omitted); see also Fed. R. Crim. P. 51(b) (explaining that to preserve
a claim of error in a criminal action, the party must inform the
court of the error “when the court ruling or order is made or
sought”). Accordingly, we conclude that Steen’s post-judgment
efforts to alert the district court to the purported scoring error were
not sufficient to overcome application of the invited error doctrine,
and we affirm.
AFFIRMED.