United States v. Lanking

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 5, 2023
• Docket: 21-1404
• Status: Unpublished

Opinion

Appellate Case: 21-1404 Document: 010110793339 Date Filed: 01/05/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 5, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 21-1404 v. (D.C. No. 1:17-CR-00483-RBJ-3) (D. Colo.) BRANDON L. LANKING,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, MURPHY, and EID, Circuit Judges. _________________________________

After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, we order

the case submitted without oral argument.

Brandon Lanking was found guilty, following a jury trial, of two counts of

Hobbs Act robbery and one count of conspiracy to commit Hobbs Act robbery. A

United States Probation Officer prepared a Presentence Investigation Report

(“PSR”). The PSR concluded Lanking was a career offender for purposes of

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-1404 Document: 010110793339 Date Filed: 01/05/2023 Page: 2

U.S.S.G. §§ 4B1.1 and 4B1.2. Based on the applicability of the career-offender

enhancement, Lanking’s advisory sentencing guidelines range was 210 to 262

months’ imprisonment. Without application of the career-offender enhancement,

Lanking’s advisory sentencing guidelines range was 100 to 125 months’

imprisonment. In the absence of any objection on Lanking’s part, the district

court adopted the PSR, specifically including its application of the career-

offender enhancement. Nevertheless, based on a consideration of the factors set

out in 18 U.S.C. § 3553(a), the district court varied downward from the advisory

sentencing range and imposed a sentence of 180 months in prison.

For the first time on appeal, Lanking asserts the district court erred in

calculating his advisory sentencing range by reference to the career-offender

provisions set out in Part B of Chapter Four of the Sentencing Guidelines. He

also argues he can satisfy the heavy burden of demonstrating this forfeited claim

of error is plain for purposes of Fed. R. Crim. P. 52. Cf. United States v. Crowe,

735 F.3d 1229, 1242 (10th Cir. 2013) (noting “[t]he plain error standard presents

a heavy burden for an appellant”). In that regard, Lanking notes this court has

definitively held that Hobbs Act robbery is not a crime of violence for purposes

of §§ 4B1.1 and 4B1.2. United States v. O’Connor, 874 F.3d 1147, 1158 (10th

Cir. 2017). Furthermore, as a result of the error, Lanking’s advisory sentencing

range more than doubled, from 100-125 months’ imprisonment to 210-262

month’s imprisonment. The use of an incorrect advisory sentencing range “set

the wrong framework for the sentencing proceedings.” Molina-Martinez v.

2 Appellate Case: 21-1404 Document: 010110793339 Date Filed: 01/05/2023 Page: 3

United States, 136 S. Ct. 1338, 1346 (2016). The resulting disparity affected

Lanking’s substantial rights. Finally, the Supreme Court has made clear that

guidelines errors that affect an appellant’s substantial rights ordinarily satisfy the

fourth prong of plain-error review. Rosales-Mireles v. United States, 138 S. Ct.

1897, 1911 (2018) (“In the ordinary case, as here, the failure to correct a plain

Guidelines error that affects a defendant’s substantial rights will seriously affect

the fairness, integrity, and public reputation of judicial proceedings.”). In its

response brief, the government concedes the district court erred in applying the

career-offender enhancement and concedes Lanking has satisfied his burden of

demonstrating plain error.

Upon review of the parties’ briefs and contentions, the appellate record,

and the relevant authorities, this court concludes Lanking’s arguments and the

government’s corresponding concession are well-taken. Accordingly, exercising

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court

REMANDS the matter to the district court to vacate Lanking’s sentence and to

resentence him without reference to the career-offender provisions set out in

Part B of Chapter Four of the Sentencing Guidelines. Furthermore, given the

3 Appellate Case: 21-1404 Document: 010110793339 Date Filed: 01/05/2023 Page: 4

government’s concession of error, this court’s mandate is ordered to issue

forthwith.

Entered for the Court

Michael R. Murphy Circuit Judge