United States v. Buckner, 033120 FED11, 16-16825

Docket Nº:16-16825
Opinion Judge:PER CURIAM
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CECIL DANTE BUCKNER, Defendant-Appellant.
Judge Panel:Before ROSENBAUM, BRANCH, and MARCUS, Circuit Judges.
Case Date:March 31, 2020
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

CECIL DANTE BUCKNER, Defendant-Appellant.

No. 16-16825

United States Court of Appeals, Eleventh Circuit

March 31, 2020

DO NOT PUBLISH

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:16-cr-00081-RBD-KRS-1

Before ROSENBAUM, BRANCH, and MARCUS, Circuit Judges.

PER CURIAM

In 2016, Cecil Buckner pleaded guilty to conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 1), two counts of Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2 (Counts 2 and 4), and two counts of using, carrying, and brandishing a firearm during and in relation to a crime of violence-the Hobbs Act robbery offenses alleged in Counts 2 and 4-in violation of 18 U.S.C. § 924(c)(1)(A) (Counts 3 and 5). Buckner now appeals his convictions and his 414-month, below-guidelines total sentence of imprisonment. On appeal, Buckner argues that: (1) his § 924(c) convictions are unconstitutional because Hobbs Act robbery is not categorically a crime of violence under § 924(c)(3)(A)'s elements clause; (2) the government breached his plea agreement in various ways; (3) the district court erred in classifying him as a career offender; (4) his sentence is the product of cumulative error; and (5) his total sentence violates the Eighth Amendment.1 For the reasons that follow, we affirm.

I. Background

In 2016, Buckner was charged with the above-referenced counts. He subsequently pleaded guilty, pursuant to a written plea agreement.2 In relevant part, the plea agreement provided that at sentencing, the government would recommend that Buckner receive a two-level adjustment for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a). Additionally, if Buckner's offense level under the guidelines was 16 or greater and if Buckner complied with U.S.S.G. § 3E1.1(b) and all terms of the plea agreement, the government agreed to file a § 3E1.1(b) motion for an additional one-level adjustment. The plea agreement further provided that the government would make certain information known at sentencing and that it would not use certain information in determining the applicable guideline range, subject to certain restrictions and limitations set forth in the Guidelines.

Finally, the agreement contained a sentence-appeal waiver, which provided that, by entering the agreement, Buckner expressly waives the right to appeal [his] sentence on any ground, including the ground that the Court erred in determining the applicable guideline range pursuant to the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant's applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution; provided, however, that if the government exercises its right to appeal the [total] sentence imposed, as authorized by 18 U.S.C. § 3742 (b), then the defendant is released from his waiver and may appeal the [total] sentence as authorized by 18 U.S.C. § 3742(a).

Buckner signed the plea agreement and initialed each individual page. At the change-of-plea hearing, the district court conducted a plea colloquy, advising and questioning Buckner to determine whether his plea was knowingly, intelligently, and voluntarily made and whether he understood the consequences of his plea consistent with the requirements of Federal Rule of Criminal Procedure 11. In relevant part, the district court reviewed the charges with Buckner, explained the applicable penalties, and noted that the district court had the authority to depart from the advisory guidelines calculation. Buckner confirmed that he understood all of this information. Buckner also confirmed that he understood that he was waiving his right to appeal his sentence, except for the narrow grounds outlined in the plea agreement. The district court concluded Buckner's decision to plead guilty was knowingly, intelligently, and voluntarily made and accepted his plea.

In preparing the presentence investigation report ("PSI") using the 2016 United States Sentencing Guidelines Manual, the probation officer included certain uncharged conduct as a "pseudo-count" in the guideline range calculation. Additionally, Buckner was classified as a career offender, pursuant to U.S.S.G. § 4B1.1(a) because one of the instant offenses was a "controlled substance offense" and Buckner was previously convicted of at least two crimes of violence or controlled-substance offenses. Although the PSI did not separately enumerate a reduction for acceptance of responsibility, the probation officer noted that she included a three-level reduction for acceptance of responsibility when determining Buckner's guideline range. Buckner's advisory guideline range was 535 to 572 months' imprisonment, pursuant to U.S.S.G. § 4B1.1(c)(2).3 The statutory maximum was life imprisonment. Buckner did not object to the PSI prior to sentencing.

At the sentencing hearing on October 17, 2016, Buckner confirmed that he had no objections to the facts contained in the PSI or the calculation of the guidelines. The district court then adopted the PSI's factual findings and guideline range calculation and reviewed the applicable range with Buckner. The government explained that it was seeking "a guideline sentence" based on the seriousness of the offenses, Buckner's criminal history, and the need to protect the public, promote respect for the law, and provide adequate deterrence. Buckner then presented testimony from his mother, father, and girlfriend, all of whom requested leniency and contended that Buckner was a beloved family member, friend, and a non-violent person. Buckner's counsel argued for a below-guidelines sentence, noting that even a sentence at the bottom of the guideline range would amount to an actuarial life sentence for Buckner who was at the time 37 years old, and that Buckner had taken full responsibility and deserved a chance to be with his family again. Following Buckner's statement to the court, the district court sentenced him to a below-guidelines total sentence of 414 months' imprisonment.[4]The district court explained that it had imposed a below-guidelines sentence because "in the judgment of the Court the aggregate sentence including the 384 months which was statutorily obligated to be imposed resulted in essentially a life sentence which was greater than necessary to accomplish the statutory purposes of sentencing." Buckner did not object to the sentence.5 This appeal followed.

II. Standards of Review

Where, as here, a defendant fails to object to an alleged error in the district court, we review only for plain error. United States v. Beckles, 565 F.3d 832, 842 (11th Cir. 2009). To establish plain error, a defendant must show: (1) an error; (2) that was clear or obvious; (3) that affected the defendant's substantial rights; and if the first three prongs are met, we then have discretion to correct the error if it (4) seriously affected the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732-35 (1993). A defendant's substantial rights are affected if the error "affected the outcome of the district court proceedings." Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting Olano, 507 U.S. at 734). When the alleged error related to sentencing, "the 'outcome' [the defendant] must show to have been affected is his sentence." Id. at 142 n.4. To be clear, "[a] defendant whose plea agreement has been broken by the Government will not always be able to show prejudice, either because he obtained the benefits contemplated by the deal anyway . . . or because he likely would not have obtained those benefits in any event. . . . Id. at 141-42.

Further, we review the validity of a sentence-appeal waiver de novo. United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). Finally, under the prior-panel-precedent rule, "a prior panel's holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this Court sitting en banc." United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).

III. Discussion

A. Buckner's challenge to his § 924(c) convictions

Buckner argues that his § 924(c) convictions are unconstitutional and must be vacated because the predicate offense on which they are based, Hobbs Act robbery, is not categorically a crime of violence under § 924(c)'s elements clause.6He acknowledges that we have held that Hobbs Act robbery is a crime of violence under § 924(c)'s elements clause, but he maintains that our precedent has been effectively abrogated by the Supreme Court's decisions in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), and United States v. Davis, 139 S.Ct. 2319 (2019), as well as our decision in United States v. Harris, 916 F.3d 948 (11th Cir. 2019).7 We disagree.

Section 924(c) of Title 18 of the United States Code provides for a mandatory-minimum consecutive sentence for any defendant who uses or carries a firearm during and in relation to, or who possesses a firearm in furtherance of, a federal crime of violence or drug-trafficking crime. 18 U.S.C. § 924(c)(1)(A). For purposes of § 924(c), a "crime of violence" is defined as a felony offense that: (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the...

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