USA v. Stephen Brinson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10245
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN J. BRINSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:05-cr-00010-AW-MAF-2
____________________
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2 Opinion of the Court 23-10245
____________________
No. 23-10253
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN J. BRINSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:21-cr-00013-AW-MAF-1
____________________
Before R OSENBAUM, G RANT , and ANDERSON , Circuit Judges.
PER CURIAM:
Stephen Brinson appeals his 188-month sentence followed
by 10-years’ supervised release for fentanyl distribution, and his
51-month consecutive sentence imposed upon revocation
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23-10245 Opinion of the Court 3
of supervised release following a previous conviction. He argues
that the district court committed plain error in calculating his Sen-
tencing Guidelines range for both sentences.
I.
We review an argument not made before the district court
for plain error, requiring the defendant to show that there is (1) er-
ror; (2) that is plain; (3) that affects his substantial rights; and (4) that
seriously affects “the fairness, integrity, or public reputation of ju-
dicial proceedings.” United States v. Monroe, 353 F.3d 1346, 1349
(11th Cir. 2003). An error is plain if it is plain at the time of appeal,
even if it was not plain at the time of the district court’s decision.
United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). For
a defendant to show an error affected his substantial rights, he must
show a reasonable probability of a different result but for the error.
United States v. Underwood, 446 F.3d 1340, 1343-44 (11th Cir. 2006).
An incorrect Guidelines range generally shows a reasonable prob-
ability of a different result. Molina-Martinez v. United States, 578 U.S.
189, 198 (2016). “The risk of unnecessary deprivation of liberty par-
ticularly undermines the fairness, integrity, or public reputation of
judicial proceedings in the context of a plain Guidelines error be-
cause of the role the district court plays in calculating the range and
the relative ease of correcting the error.” Rosales-Mireles v. United
States, 585 U.S 129, 140 (2018). A party’s concession of law is not
binding on us. United States v. Colston, 4 F.4th 1179, 1187 (11th Cir.
2021).
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4 Opinion of the Court 23-10245
A defendant is a career offender if (1) he was over the age of
18 at the time he committed the instant offense; (2) the instant of-
fense is either a crime of violence or a controlled substance offense;
and (3) he has at least two prior felony convictions for either
a crime of violence or a controlled substance offense. U.S.S.G.
§ 4B1.1(a). The prior felony convictions must be counted sepa-
rately under § 4A1.1(a)-(c). § 4B1.2(c)(2). Under § 4A1.1, a prior
sentence exceeding one year and one month imposed or served
within 15 years of the commencement of the instant offense and
any prior sentence imposed within 10 years of the commencement
of the instant offense are counted. § 4A1.2(e)(1)-(2). Any other
prior sentence is not counted. § 4A1.2(e)(3).
Conspiracy to commit a drug offense is not a controlled sub-
stance offense for the purposes of § 4B1.2. United States v. Dupree,
57 F.4th 1269, 1280 (11th. Cir. 2023) (en banc). Although the com-
mentary to § 4B1.2 states that conspiracy to commit a controlled
substance offense qualifies as a controlled substance offense, that
commentary is not considered, because the text of § 4B1.2(b) un-
ambiguously excludes inchoate crimes. U.S.S.G. § 4B1.2, com-
ment. (n.1); Dupree, 57 F.4th at 1277-79.
Here, the government is correct to concede that the district
court plainly erred in sentencing Brinson as a career offender.
See Monroe, 353 F.3d at 1349; Colston, 4 F.4th at 1187. First, the dis-
trict court applied the career-offender enhancement based
on a drug-conspiracy conviction. We held in Dupree that inchoate
offenses, including conspiracy, are not controlled substance
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23-10245 Opinion of the Court 5
offenses, so the district court erred. See Dupree, 57 F.4th at 1277-79.
Second, the error is plain, as Dupree explicitly held that conspiracy
is not a controlled substance offense. See id.; Rodriguez, 398 F.3d
at 1299. Third, the error affected Brinson’s substantial rights, as
it significantly affected his guideline range. See Molina-Martinez,
578 U.S. at 198. Finally, the risk of unnecessary deprivation of lib-
erty undermines the fairness and integrity of judicial proceedings.
See Rosales-Mireles, 585 U.S. at 140. The career-offender enhance-
ment was therefore plain error. See Monroe, 353 F.3d at 1349.
Accordingly, we vacate Brinson’s fentanyl-distribution sen-
tence and remand for resentencing.1
II.
Grade A violations of supervised release include any federal
controlled substance offense punishable by more than a year in
prison. U.S.S.G. § 7B1.1(a)(1). Fentanyl distribution is punishable
by up to 30 years of imprisonment. 21 U.S.C. § 841(a)(1), (b)(1)(C).
When the defendant’s criminal history category when he was orig-
inally sentenced was VI, and he commits a Grade A violation while
on supervised release for a Class A felony, he is subject to a guide-
line range of 51 to 63 months’ imprisonment. U.S.S.G. § 7B1.4(a).
1 Because we vacate the sentence, we do not address Brinson’s other argu-
ments challenging his fentanyl-distribution sentence.
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6 Opinion of the Court 23-10245
Here, the district court did not err, plainly or otherwise, in
calculating the guideline range as to Brinson’s sentence upon revo-
cation of supervised release. Brinson’s most serious violation (the
fentanyl-distribution violation) was a Grade A violation punishable
by up to 30 years of imprisonment. See U.S.S.G. § 7B1.1; 21 U.S.C.
§ 841(a)(1), (b)(1)(C). His underlying conviction was a Class A fel-
ony. See 21 U.S.C. § 841(b)(1)(A)(iii); 18 U.S.C. § 3559(a)(1). The
applicable criminal history category was VI—the category at the
time of his original sentencing2—not his category at the time of the
instant sentencing for violation of supervised release. See U.S.S.G.
§ 7B1.4. Because the statutory maximum term was five years, the
district court properly calculated Brinson’s capped guideline range
at 51 to 60 months. See 18 U.S.C. § 3583(e)(3).
Accordingly, we affirm Brinson’s sentence imposed upon
revocation of supervised release.
AFFIRMED IN PART, VACATED AND REMANDED IN
PART
2 At the time of the instant sentencing, Brinson’s prior convictions for aggra-
vated assault and robbery no longer counted towards his criminal history be-
cause of their age. Thus his criminal history category was IV and no longer
VI.
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