United States v. Terry Cadet

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 29, 2019
• Docket: 18-14091
• Status: Unpublished

Opinion

Case: 18-14091 Date Filed: 07/29/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14091 Non-Argument Calendar ________________________

D.C. Docket No. 0:18-cr-60085-JIC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TERRY CADET,

Defendant-Appellant.

________________________

Appeals from the United States District Court for the Southern District of Florida ________________________

(July 29, 2019)

Before MARTIN, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 18-14091 Date Filed: 07/29/2019 Page: 2 of 3

Terry Cadet appeals his 151-month sentences imposed after he pled guilty to

one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1), and one count of possession of a firearm by a prohibited person, in

violation of 18 U.S.C. § 922(g)(8). On appeal, he contends that the district court

erred by imposing consecutive sentences for the same conduct in violation of the

Double Jeopardy Clause of the Fifth Amendment. He also argues that the district

court erred in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B)

without making sufficient findings of fact to conclude that his possession of a

firearm was in connection with another felony offense.

A claim of error which was not preserved below is reviewed for plain error.

Puckett v. United States, 556 U.S. 129, 134 (2009). Plain error review has four

prongs:

(1) There must be an error or defect that the appellant has not affirmatively waived; (2) it must be clear or obvious; (3) it must have affected the appellant's substantial rights; and (4) if the three other prongs are satisfied, the court of appeals has the discretion to remedy the error if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.

Id. at 135. “For a plain error to have occurred, the error must be one that is

obvious and is clear under current law.” United States v. Madden, 733 F.3d 1314,

1322 (11th Cir. 2013).

In United States v. Winchester, we determined that a defendant should not be

punished “under two or more separate subdivisions of 18 U.S.C. § 922(g).” 916 2 Case: 18-14091 Date Filed: 07/29/2019 Page: 3 of 3

F.2d 601, 607 (11th Cir. 1990). We noted that under the interpretation urged by

the government in Winchester, “a convicted felon who is also a fugitive from

justice, a drug addict, a ‘mental defective,’ and an illegal alien, could be sentenced

to five consecutive terms of imprisonment for the same incident, namely, the

possession of a firearm.” Id.

Here, Cadet was sentenced to 120 months on Count One for being a

convicted felon in possession of a firearm under 18 U.S.C. § 922(g)(1), and 31

months, to be served consecutively, on Count Two for possession of the same

firearm by a prohibited person under § 922(g)(8). The district court plainly erred

in imposing consecutive sentences for Cadet’s dual violations of § 922(g) in light

of Winchester. The Government concedes error and that the error is plain. We

reverse and remand, with instructions to resentence Cadet in accordance with that

opinion. Consequently, Cadet’s argument, that the district court improperly

applied the § 2K2.1(b)(6)(B) enhancement, is moot, and we will not consider it at

this time.

REVERSED AND REMANDED.