Full Opinion

USCA11 Case: 25-10734 Document: 44-1 Date Filed: 11/03/2026 Page: 1 of 8 NOT FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 25-10734 Non-Argument Calendar ____________________ UNITED STATES OF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: USCA11 Case: 25-10734 Document: 44-1 Date Filed: 11/03/2026 Page: 2 of 8 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 USCA11 Case: 25-10734 Document: 44-1 Date Filed: 11/03/2026 Page: 3 of 8 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). USCA11 Case: 25-10734 Document: 44-1 Date Filed: 11/03/2026 Page: 4 of 8 4 Opinion of the Court 25-10734 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. USCA11 Case: 25-10734 Document: 44-1 Date Filed: 11/03/2026 Page: 5 of 8 25-10734 Opinion of the Court 5 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. USCA11 Case: 25-10734 Document: 44-1 Date Filed: 11/03/2026 Page: 6 of 8 6 Opinion of the Court 25-10734 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. USCA11 Case: 25-10734 Document: 44-1 Date Filed: 11/03/2026 Page: 7 of 8 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 USCA11 Case: 25-10734 Document: 44-1 Date Filed: 11/03/2026 Page: 8 of 8 8 Opinion of the Court 25-10734 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.