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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDRES MONTGOMERY,
Defendant-Appellant.
   No. 20-1201
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 1:04-cr-20046-6—Thomas L. Ludington, District Judge.
Decided and Filed: May 24, 2021
Before: STRANCH, BUSH, and READLER, Circuit Judges.


_________________________
OPINION
_________________________

JOHN K. BUSH, Circuit Judge. The difference between waiver and forfeiture has long bedeviled lawyers and judges alike. Lawyers often split the difference, using the terms interchangeably or even offering a formulation like “my opponent waived and/or forfeited that argument.” Sometimes they will also invoke invited error, which falls within the continuum between forfeiture and waiver. But the terms have different meanings and, especially in criminal cases, different consequences. For Edres Montgomery, the difference is dispositive. At his resentencing hearing, the district court applied the wrong Criminal History Category, placing Montgomery in a higher Sentencing Guidelines range. Had Montgomery waived the right to challenge that error, he would be stuck with the sentence he received under the incorrect range. But he only invited the error, which means that we have discretion to review it if the interests of justice demand that we do so. Here, they do. We therefore vacate Montgomery’s sentence and remand for resentencing under the correct Guidelines range.