United States v. Bryan A. Hines

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 26, 2021
• Docket: 19-13806
• Status: Unpublished

Opinion

USCA11 Case: 19-13806 Date Filed: 04/26/2021 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-13806 Non-Argument Calendar ________________________

D.C. Docket No. 3:18-cr-00117-MCR-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRYAN A. HINES,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Florida ________________________

(April 26, 2021) USCA11 Case: 19-13806 Date Filed: 04/26/2021 Page: 2 of 8

Before WILSON, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:

Bryan Hines appeals his sentence of 41 months’ imprisonment for

possession of a firearm and ammunition as a convicted felon. The presentence

investigation report (“PSI”), which the district court adopted, arrived at a guideline

imprisonment range of 41 to 51 months based on an offense level of 15 and a

criminal history score of 13. On appeal, Hines argues that the district court plainly

erred in calculating his criminal history score because his PSI assigned criminal

history points to two marijuana offenses that were not separated by an intervening

arrest, in violation of U.S.S.G. § 4A1.2(a)(2). After careful review, we vacate

Hines’s sentence and remand to the district court for resentencing.

I. BACKGROUND

Hines was charged and pled guilty to possession of a firearm and

ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). Prior to sentencing, the probation officer prepared a PSI, which

assigned Hines a base level offense of 15 and a criminal history score of 13. 1 As

part of calculating the criminal history score, the PSI assigned one criminal history

point each to two marijuana offenses that Hines committed on March 1, 2018. For

1 Hines’s original PSI gave him a criminal history score of 17. Hines objected, arguing that four of the offenses should be counted as a single offense under U.S.S.G. § 4A1.2(a)(2). As a result, the PSI was amended prior to sentencing to give him a criminal history score of 13. 2 USCA11 Case: 19-13806 Date Filed: 04/26/2021 Page: 3 of 8

first offense, Hines was issued a citation and a notice to appear by the Pensacola

Junior College Police for possession of marijuana. He was not detained. For the

second, he was arrested by the Escambia County Sheriff’s Office, following a

traffic stop during which officers discovered marijuana in the car in which he was

a passenger. For both offenses, Hines failed to appear on June 6, 2018. As a

result, he was rearrested on July 18, 2018. He pled nolo contendere to a charge of

possession of marijuana under 20 grams in both cases and was sentenced to time

served on August 13, 2018.

Hines did not object to the PSI at sentencing. The district court determined

that the PSI was accurate and adopted it for the purposes of determining the

sentence. The court ultimately sentenced Hines to 41 months’ imprisonment—the

low end of the guidelines range of 41 to 51 months.

This is Hines’s appeal.

II. STANDARD OF REVIEW

We ordinarily review the district court’s application of the Sentencing

Guidelines to established facts de novo. United States v. Bradley, 644 F.3d 1213,

1283 (11th Cir. 2011). However, we review objections to sentencing calculation

issues that the defendant raises for the first time on appeal only for plain error.

United States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006). To demonstrate plain

error, a party must show that (1) there was an error, (2) the error was plain, and

3 USCA11 Case: 19-13806 Date Filed: 04/26/2021 Page: 4 of 8

(3) the error affected his substantial rights. United States v. Turner, 474 F.3d 1265,

1276 (11th Cir. 2007). An error is “plain” if it is “obvious and clear under current

law.” United States v. Bacon, 598 F.3d 772, 777 (11th Cir. 2010) (internal

quotation marks omitted). Even where an error is plain, the decision to reverse is

ultimately discretionary. Turner, 474 F.3d at 1276. “We will exercise our

discretion to correct only those errors that seriously affect the fairness, integrity or

public reputation of judicial proceedings.” Id. (alteration adopted) (internal

quotation marks omitted).

III. DISCUSSION

On appeal, Hines argues that the district court plainly erred in calculating his

criminal history score under U.S.S.G. § 4A1.2(a)(2) because his PSI assigned

criminal history points for each of the two March 1, 2018 marijuana offenses, even

though he was sentenced for both on the same day and they were not separated by

an intervening arrest. In support, he argues that under United States v. Wright,

862 F.3d 1265 (11th Cir. 2017), his citation and notice to appear do not qualify as

an “arrest” within the meaning of § 4A1.2(a)(2). He contends that the error

affected his substantial rights and merits reversal because it affected his guideline

range. 2 We agree.

2 On appeal, Hines asks that we take judicial notice of supplemental authority. Because we can decide this appeal without looking to any supplemental authority, we do not address whether judicial notice is appropriate here. 4 USCA11 Case: 19-13806 Date Filed: 04/26/2021 Page: 5 of 8

We first address whether counting the two marijuana offenses as one was a

plain error. The Guidelines provide that, for purposes of computing a defendant’s

criminal history score, a prior sentence is “any sentence previously imposed upon

adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for

conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1). Sentences are

counted separately if they were imposed for offenses that were separated by an

“intervening arrest,” meaning that “the defendant is arrested for the first offense

prior to committing the second offense.” Id. § 4A1.2(a)(2). Even if there was no

intervening arrest, sentences are still counted separately unless they resulted from

offenses charged in the same instrument or were imposed on the same day, in

which case they must be treated as a single sentence. Id.

The Sentencing Guidelines do not define the term “arrest.” See id.

§§ 4A1.2, 1B1.1, cmt. n.1. In United States v. Wright, we addressed whether a

defendant had been “arrested” within the meaning of § 4A1.2(a)(2) where she was

issued a citation for driving with a suspended license but was not taken into

custody when she was stopped. 862 F.3d at 1281–82. We determined that the

term “arrest” for purposes of § 4A1.2(a)(2) “does not include being pulled over,

briefly stopped, and issued a traffic citation.” Id. at 1283. Looking to the ordinary

meaning of “arrest,” we reasoned that “arrest ordinarily means that someone has

been seized and taken into custody, however briefly.” Id. at 1282 (internal

5 USCA11 Case: 19-13806 Date Filed: 04/26/2021 Page: 6 of 8

quotation marks omitted). We further observed that “an arrest is usually indicated

by informing the suspect that he is under arrest, transporting the suspect to the

police station, and/or booking the suspect into jail.” Id. (internal quotation marks

omitted). We contrasted these procedures with a situation where an individual is

pulled over, issued a traffic citation for a traffic-law violation, and allowed to

leave, which would generally be described as getting a “ticket” rather than an

“arrest.” Id. We stated, in summary, that limiting the term “arrest to a formal

arrest (rather than a mere [traffic] citation)” was consistent with common usage,

caselaw, and the context and purpose of the Guidelines. Id. at 1283 (internal

quotation marks omitted). Further, we stated that the Guidelines could have used a

broader term than “intervening arrest” if the intention was to include traffic

citations. Id.

In this case, the government argues that the holding of Wright was limited to

traffic citations only. It maintains that because the first citation Hines received was

for possession of marijuana rather than a traffic violation, the holding of Wright

does not apply here. Although the government is correct that the holding of Wright

concerned the defendant’s traffic citation, id. at 1282, our prior precedent rule

dictates that we are bound both by the holding of prior case law and the reasoning

necessary to reach that holding, United States v. Gillis, 938 F.3d 1181, 1198 (11th

Cir. 2019). As such, we are bound by Wright’s reasoning in determining whether

6 USCA11 Case: 19-13806 Date Filed: 04/26/2021 Page: 7 of 8

Hines’s first citation was an arrest or simply a ticket. And that reasoning points

clearly to one conclusion: the citation was not an arrest for the purpose of

§ 4A1.2(a)(2).

Hines was not “seized” or “taken into custody” by the first officer who

stopped him. Wright, 862 F.3d at 1282. The officer did not “inform[] [him] that

he [was] under arrest, transport[] [him] to the police station, . . . or book[] [him]

into jail.” Id. Instead, Hines was pulled over, given a citation, and allowed to

leave. Id. Under Wright, the two marijuana offenses were not separated by an

intervening arrest. And both sentences were imposed on the same day. It was

therefore plain error to assign criminal history points to both sentences. See

U.S.S.G § 4A1.2(a)(2) (“If there is no intervening arrest, prior sentences are

counted separately unless (A) the sentences resulted from offenses contained in the

same charging instrument; or (B) the sentences were imposed on the same day.”);

Wright, 862 F.3d at 1282–83.

Given that the error in calculating Hines’s criminal history score was plain,

we must now determine if it affected his substantial rights. We conclude that it

did. We have held that sentencing a defendant under an incorrect guidelines range

affects his substantial rights, even when the original sentence falls within the new

range. United States v. Bankston, 945 F.3d 1316, 1319–20 (11th Cir. 2019). If

Hines’s two marijuana offenses were counted as one instead of separately, his

7 USCA11 Case: 19-13806 Date Filed: 04/26/2021 Page: 8 of 8

criminal history score would have dropped from a 13 to a 12. See U.S.S.G.

§ 4A1.2 (explaining how to calculate a defendant’s criminal history for the purpose

of sentencing). This, in turn, would have lowered his criminal history category

from a VI to a V and resulted in a guidelines range of 37 to 46 months, rather than

41 to 51 months. Id. Ch. 5 Pt. A. Even though Hines’s sentence falls within this

new range, the error in calculating his guidelines range affected his substantial

rights. See Bankston, 945 F.3d at 1319.

As to the final question of plain error review—whether we should exercise

our discretion to reverse this error—“[t]he risk of unnecessary deprivation of

liberty particularly undermines the fairness, integrity, or public reputation of

judicial proceedings in the context of a plain Guidelines error.” Rosales-Mireles v.

United States, 138 S. Ct. 1897, 1908 (2018). The plain error in calculating Hines’s

guidelines range is no exception. As such, it merits reversal.

IV. CONCLUSION

For the foregoing reasons, we vacate Hines’s sentence and remand for

further proceedings not inconsistent with this opinion.

VACATED AND REMANDED.