Here is the opinion in United States v. Joe.
An excerpt:
We therefore hold that the district court erred when it enhanced Defendants’ offense levels for physical restraint of the victim as well as enhancing for the use of force against her. The government, which has the burden of proof of showing harmlessness, see United States v. Kieffer, 681 F.3d 1143, 1169 (10th Cir. 2012), has not argued that this error was harmless. Our cases lead us to the conclusion that it was not. If the government had argued that this error was harmless, no doubt that argument would have been centered on the fact that the district judge varied downward from the incorrectly calculated guidelines range to reach the sentence that he concluded was most appropriate in view of all of the factors listed in 18 U.S.C. § 3553(a). We have, however, emphasized the importance of the guideline range as the starting point in the process. See, e.g., Kieffer, 681 F.3d at 1170. We said there that “where the beginning point for a sentencing court’s analysis of the § 3553(a) factors is measurably wrong, the ending point usually will result from an incorrect application of the Guidelines.” Id. (emphasis in original). The government has not argued that the error is harmless, and we believe that the error is not obviously harmless. As explained herein, we remand for resentencing in both of these appeals.
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