United States v. Fluker

• Decision Date: 05 June 2018
• Docket Number: No. 17-4690,17-4690
• Citation: 891 F.3d 541
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eddie Dean FLUKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

891 F.3d 541

UNITED STATES of America, Plaintiff-Appellee,

v.Eddie Dean FLUKER, Defendant-Appellant.

No. 17-4690

United States Court of Appeals, Fourth Circuit.

Argued: May 8, 2018

Decided: June 5, 2018

ARGUED: Christine Madeleine Lee, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Thomas T. Cullen, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Before KING, AGEE, and HARRIS, Circuit Judges.

Vacated and remanded by published opinion. Judge Agee wrote the opinion, in which Judge King and Judge Harris joined.

AGEE, Circuit Judge:

Following a successful 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, Eddie Dean Fluker was resentenced to 308 months' imprisonment. Fluker appeals, arguing principally that the district court improperly designated him as a career offender under the 2016 United States Sentencing Guidelines Manual , and that this incorrect designation led to the further error of applying the wrong version of the Guidelines Manual to determine his Guidelines range. He maintains that this procedural sentencing error entitles him to resentencing. We agree with Fluker, and for the reasons set out below, vacate his sentence and remand for resentencing.

I.

In 1992, Fluker was convicted of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count 1); carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 2); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 3) (collectively "Virginia convictions"). Fluker was sentenced as an armed career criminal under the residual clause of the Armed Career Criminal Act ("ACCA"). See 18 U.S.C. § 924(e)(2)(B)(ii). As an armed career criminal, Fluker was subject to a mandatory minimum 15-year sentence, as well as to heightened penalties under the then-mandatory sentencing Guidelines. The district court sentenced Fluker to 340 months' imprisonment on Counts 1 and 3, to run concurrently, and to a mandatory sixty months' imprisonment on Count 2, to run consecutively, yielding a total sentence of 400 months.

Five years later, the district court modified Fluker's sentence under 18 U.S.C. § 3582(c)(2) and resentenced him to 327 months' imprisonment on Counts 1 and 3, to run concurrently. The consecutive 60-month sentence on Count 2 remained unchanged, so Fluker's total sentence became 387 months.

The Supreme Court of the United States held in 2015 that the residual clause of the ACCA was unconstitutionally vague, Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and, in 2016, that this decision was retroactively applicable on collateral review, Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). We granted Fluker's motion for permission to file a successive § 2255 motion raising a Johnson claim. In re: Eddie Dean Fluker , No. 16-414 (4th Cir. May 5, 2016).

The district court granted Fluker's § 2255 motion, concluding that—without the residual clause—Fluker's prior convictions no longer served as ACCA predicates. It vacated Fluker's sentence and directed a probation officer to prepare a revised pre-sentence report (PSR).

Although the revised PSR did not apply the ACCA to Fluker's advisory Guidelines calculation, it designated Fluker as a career offender under § 4B1.1 and § 4B1.2 based on two prior convictions for Georgia robbery. As a result of changes to the Guidelines Manual between Fluker's original sentencing and resentencing, applying the career-offender designation to Fluker's Guidelines calculation resulted in a higher Guidelines range than the one applied to Fluker in his original sentencing hearing. Under these circumstances, the Guidelines direct that the court should use the Manual in effect at the time of the original sentencing to calculate the Guidelines range so as to avoid violating the Ex Post Facto Clause. U.S.S.G. § 1B1.11(b)(1) ; see also Peugh v. United States , 569 U.S. 530, 533, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) (holding that using a higher Guidelines range at sentencing than was authorized for the offense at the time of its commission violates the Ex Post Facto Clause). Under the 1991 Guidelines Manual, Fluker was also subject to the career-offender designation, and his Guidelines range was 210 to 262 months' imprisonment.

Fluker objected to the career-offender designation, arguing that Georgia robbery is not a "crime of violence" under the 2016 Guidelines Manual definition. And because Fluker's Guidelines range without application of the career-offender designation would be lower under the 2016 Guidelines Manual than under the 1991 Guidelines Manual, Fluker argued the Court did not need to change editions in order to avoid an Ex Post Facto Clause problem.

The district court overruled Fluker's objection and held that Georgia robbery was a crime of violence under the 2016 Guidelines Manual. It noted the absence of any published or unpublished Fourth Circuit opinions on point and relied on an unpublished Eleventh Circuit decision holding that Georgia robbery is a crime of violence. See United States v. Cooper , 689 Fed.Appx. 901 (11th Cir. 2017). Given the Ex Post Facto concerns, the court used the 1991 Guidelines Manual to calculate Fluker's Guidelines range for resentencing, as required by Peugh , 569 U.S. at 533, 133 S.Ct. 2072.

Before resentencing Fluker, the district court allowed the Government to call Officer Thomas Caldwell to testify as a victim-witness to Fluker's offense conduct. In so doing, it overruled Fluker's objection that Officer Caldwell could not testify during resentencing because he had not testified during the original sentencing hearing. The district court explained that the Government could call Officer Caldwell given that the proceeding was a full resentencing.

On November 1, 2017, the district court sentenced Fluker to 240 months' imprisonment (the statutory maximum) on Count 1, a concurrent sentence of 248 months' imprisonment on Count 3, and the statutorily-mandated 60 months' imprisonment, to run consecutively, on Count 2. This sentence yielded a 308-month term of imprisonment, which essentially equaled Fluker's time served on the Virginia convictions.

Following the resentencing hearing, however, Fluker was not released from the custody of the Bureau of Prisons (BOP) because soon after he began serving his sentence for the Virginia convictions, he committed additional crimes while in custody. For those offenses, the U.S. District Court for the Northern District of Florida sentenced him to 120 months' imprisonment, to be served "consecutive to the term of imprisonment ... from the Western District of Virginia" ("Florida sentence"). Supp. J.A. 33. After Fluker was resentenced for his Virginia convictions, the BOP recalculated his custody computation, including administrative Good Conduct Time, and determined that on January 6, 2015, Fluker finished serving his Virginia sentence and began serving his Florida sentence. The BOP currently projects that Fluker will be released in September 2023.

Fluker noted a timely appeal, and this Court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II.

On appeal, Fluker argues the district court committed two errors during resentencing. First, he contends that it procedurally erred in calculating his Guidelines range. In particular, he posits that he is not a career offender under the 2016 Guidelines Manual because his Georgia robbery convictions do not constitute "crimes of violence." He maintains that this initial error resulted in several additional errors related to his Guidelines range, including using the incorrect (1991) edition of the Guidelines Manual. Second, he challenges the district court's decision to allow Officer Caldwell to testify during the resentencing hearing.

The Government acknowledges that two decisions from this Court issued since the resentencing hearing support Fluker's contention that he was improperly designated as a career offender. And it concedes that if the career-offender designation was improper, then the district court should have used the 2016 Guidelines Manual to calculate Fluker's Guidelines range. Notwithstanding these concessions, the Government contends that the Court should not vacate Fluker's sentence because Fluker's appeal is moot because he is no longer in BOP custody as a result of his Virginia sentence. It further asserts the district court did not abuse its discretion in allowing Officer Caldwell to testify.

A.

1.

We review Fluker's sentence "under a deferential abuse-of-discretion standard," looking first to whether the district court committed a "significant procedural error" such as improperly calculating the Guidelines range. United States v. Evans , 526 F.3d 155, 161 (4th Cir. 2008) (quoting Gall v. United States , 552 U.S. 38, 41, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ). "In assessing whether a district court properly calculated the Guidelines range, including its application of any sentencing enhancements, [we] review[ ] the district court's legal conclusions de novo and its factual findings for clear error." United States v. Horton , 693 F.3d 463, 474 (4th Cir. 2012) (internal quotation marks and alteration omitted).

Here, the district court properly began by considering the 2016 Guidelines Manual because, in the usual case, courts sentence a defendant using the Guidelines Manual that is "in effect on the date the defendant is sentenced." 18 U.S.C. § 3553(a)(4)(A)(ii). Under this edition of the Guidelines, Fluker would be a career offender if, among other things, his two Georgia robbery convictions were for a crime of violence. U.S.S.G. §...