United States v. Jennifer Hopper

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 2, 2019
• Docket: 18-14403
• Status: Unpublished

Opinion

Case: 18-14403 Date Filed: 07/02/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14403 Non-Argument Calendar ________________________

D.C. Docket No. 5:18-cr-00172-AKK-TMP-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JENNIFER LYNN HOPPER,

Defendant-Appellant.

________________________

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

(July 2, 2019)

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 18-14403 Date Filed: 07/02/2019 Page: 2 of 3

Jennifer Lynn Hopper appeals her 168-month sentence, imposed after she

pled guilty to one count of possession with intent to distribute 50 or more grams of

methamphetamine in violation of 21 U.S.C. § 841(a)(1). She argues the sentencing

court improperly included a prior uncounseled conviction in calculating her

criminal history score under the U.S. Sentencing Guidelines. She contends the

assessment of criminal history points for a prior uncounseled conviction violates a

defendant’s Sixth and Fourteenth Amendment rights.

Hopper acknowledges this Court squarely rejected her argument in United

States v. Acuna-Reyna, 677 F.3d 1282, 1285–86 (11th Cir. 2012), but asks us to

reverse that holding. Our panel cannot do so. This Circuit’s “prior-panel

precedent rule requires subsequent panels of the court to follow the precedent of

the first panel to address the relevant issue, unless and until the first panel’s

holding is overruled by the Court sitting en banc or by the Supreme Court.” Scott

v. United States, 890 F.3d 1239, 1257 (11th Cir. 2018) (quotation marks omitted).

Hopper has not pointed to any en banc or Supreme Court decision overruling

Acuna-Reyna. Instead, she has identified what she sees as flaws in Acuna-Reyna’s

analysis. But we are not at liberty to depart from prior panel precedent because we

might disagree with an earlier decision of our court. See United States v. Lee, 886

F.3d 1161, 1163 n.3 (11th Cir. 2018) (per curiam) (explaining the prior-panel

precedent rule applies even if “a prior case was wrongly decided,” “failed to

2 Case: 18-14403 Date Filed: 07/02/2019 Page: 3 of 3

consider certain critical issues or arguments,” or “lacked adequate legal analysis to

support its conclusions”).

In any event, we agree with the government that any error in scoring

Hopper’s prior uncounseled conviction was harmless. See United States v. Monzo,

852 F.3d 1343, 1351 (11th Cir. 2017). The District Court assigned one criminal

history point to Hopper’s prior uncounseled conviction, bringing her total criminal

history points to 18. Without it, Hopper would have had 17 criminal history

points. Under the Sentencing Guidelines, a defendant with 13 or more criminal

history points is assigned a criminal history category of VI. USSG Ch. 5, pt. A.

Thus, even if the prior uncounseled conviction had not been scored, Hopper would

have netted the same criminal history category.

AFFIRMED.