United States v. Jasper Fulton

602 F. App'x 495
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 5, 2015
Docket14-12159
StatusUnpublished

This text of 602 F. App'x 495 (United States v. Jasper Fulton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jasper Fulton, 602 F. App'x 495 (11th Cir. 2015).

Opinion

PER CURIAM:

Jasper Fulton appeals his 100-month sentence for distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). On appeal, Fulton argues that the district court procedurally erred by applying a career-offender-adjusted base offense level of 32, pursuant to Sentencing *496 Guideline § 4Bl.l(b)(3). He argues that, because it is ambiguous whether Congress intended for that enhancement to apply here, the rule of lenity requires us to hold that the district court should have applied a base offense level of 29, pursuant to USSG § 4B1.1(b)(4). Beyond that, Fulton argues that the district court erred by treating the Sentencing Guidelines as mandatory rather than advisory, in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). After careful consideration, we affirm.

I.

We review the reasonableness of a sentence under a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). “On appeal, the party challenging the sentence bears the burden to show that it is unreasonable.” United States v. Cubero, 754 F.3d 888, 893 (11th Cir.), cert. denied, — U.S.-, 135 S.Ct. 764, 190 L.Ed.2d 636 (2014). We must consider several factors to determine if a sentence is procedurally reasonable, including whether the district court improperly calculated the Guideline range, treated the Guidelines as mandatory, or failed to consider the 18 U.S.C. § 3553(a) factors. Gall, 552 U.S. at 51, 128 S.Ct. at 597. “A court that misinterprets or misapplies the Guidelines inherently abuses its discretion.” United States v. McQueen, 670 F.3d 1168, 1169 (11th Cir.2012). As such, “we review the district court’s factual findings for clear error, and its interpretation and application of the Guidelines de novo.” Id.

II.

The district court did not procedurally err in applying a career-offender-adjusted base offense level of 32. The career offender Guidelines found in Section 4Bl.l(b) establish the base offense levels based on the maximum sentence permitted under the statute of conviction. In relevant part, § 4Bl.l(b) provides that, if the statutory maximum for the conviction is “20 years or more, but less than 25 years,” offense level 32 applies to career offenders. Id. § 4Bl.l(b)(3). By contrast, if the statutory maximum is “15 years or more, but less than 20 years,” offense level 29 applies to career offenders. Id. § 4Bl.l(b)(4). The application notes define statutory maximum as “the maximum term of imprisonment authorized for the offense of conviction that is a crime of violence or controlled substance offense, including any increase in that maximum term under a sentencing enhancement provision that applies because of the defendant’s prior criminal record.” Id. § 4B1.1, comment, n. 2.

The statutory maximum for distribution of cocaine base clearly falls within § 4Bl.l(b)(3)’s bounds. Under § 841(b)(1)(C), a person convicted of a controlled-substance ■ offense involving a schedule II controlled substance, such as cocaine base, “shall be sentenced to a term of imprisonment of not more than 20 years.” By precluding sentences “more than 20 years,” the statute plainly allows for 20-year sentences. That 20-year maximum unambiguously falls within the “20 years or more” language from § 4Bl.l(b). This conclusion is confirmed by this Circuit’s precedent. In United States v. Rogers, 228 F.3d 1318, 1328-30 (11th Cir.2000), we observed that the 20-year maximum sentence under Section 841(b)(1)(C) falls within the Section 4Bl.l(b)(3) range for career-offender-enhancement purposes. See id. at 1330.

Because the statute Fulton challenges is unambiguous, the rule of lenity does not apply. Under the rule of lenity, we “ ‘will not interpret a federal criminal statute so as to increase the penalty that it places on *497 an individual when such an interpretation can be no more than a guess as to what Congress intended.’ ” United States v. Brame, 997 F.2d 1426, 1428 (11th Cir.1993) (quoting Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980)). However, although “[t]he rule of lenity only serves as an aid for resolving an ambiguity, it is not an inexorable command to override common sense and evident statutory purpose.” Id. This being the case, in order to invoke the rule of lenity, “there must be a ‘grievous ambiguity or uncertainty in the statute.’ ” United States v. Maupin, 520 F.3d 1304, 1307 (11th Cir.2008) (per curiam) (quoting Muscarello v. United States, 524 U.S. 125, 139, 118 S.Ct. 1911, 1919, 141 L.Ed.2d 111 (1998)). There is no grievous ambiguity or uncertainty regarding ' whether § 4Bl.l(b)(3) or (4) applies to the statutory maximum term of imprisonment of “not more than 20 years” provided in § 841(b)(1)(C). The district court did not err.

We review claims of Booker error raised for the first time on appeal for plain error. United States v. York, 428 F.3d 1325, 1335 (11th Cir.2005) (per curiam). Under plain-error review, “[a]n appellate court may not correct an error the defendant failed to raise in the district court unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005) (quotation omitted). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation omitted).

There is no reason to think the district court plainly erred by treating the Guidelines as mandatory here. In United States v. Smith, 480 F.3d 1277 (11th Cir.2007), the-defendant argued that the district court erred by treating the Guidelines as mandatory and making factual findings that were used to enhance his sentence. Id. at 1281.

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Related

United States v. Dwight D. York
428 F.3d 1325 (Eleventh Circuit, 2005)
United States v. Isaac Jerome Smith
480 F.3d 1277 (Eleventh Circuit, 2007)
United States v. Maupin
520 F.3d 1304 (Eleventh Circuit, 2008)
Bifulco v. United States
447 U.S. 381 (Supreme Court, 1980)
Muscarello v. United States
524 U.S. 125 (Supreme Court, 1998)
United States v. Booker
543 U.S. 220 (Supreme Court, 2004)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. McQueen
670 F.3d 1168 (Eleventh Circuit, 2012)
United States v. Francisco Cubero
754 F.3d 888 (Eleventh Circuit, 2014)
United States v. Rodriguez
398 F.3d 1291 (Eleventh Circuit, 2005)

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Bluebook (online)
602 F. App'x 495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jasper-fulton-ca11-2015.