USA v. Americo Bautista-Villarreal

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10839
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AMERICO BAUTISTA-VILLARREAL,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00123-RAL-CPT-1
____________________
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2 Opinion of the Court 22-10839
____________________
No. 22-10840
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AMERICO BAUTISTA-VILLARREAL,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cr-00096-RAL-SPF-1
____________________
Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Americo Bautista-Villarreal moves for summary reversal of
his 151-month total sentence for conspiracy to possess with intent
to distribute a controlled substance and unlawful reentry, prior to
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22-10839 Opinion of the Court 3
filing an initial brief. In his motion, Bautista-Villarreal argues that
in light of our recent decision in United States v. Dupree, 57 F.4th
1269 (11th Cir. 2023) (en banc), the district court plainly erred in
applying a career-offender enhancement under U.S.S.G. § 4B1.1
based partly on his instant conviction for conspiracy to possess with
intent to distribute a controlled substance in violation of 21 U.S.C.
§ 846. The government has not opposed the motion.
Summary disposition is appropriate either where time is of
the essence, such as “situations where important public policy is-
sues are involved or those where rights delayed are rights denied,”
or where “the position of one of the parties is clearly right as a mat-
ter of law so that there can be no substantial question as to the out-
come of the case, or where, as is more frequently the case, the ap-
peal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1161-62 (5th Cir. 1969).
We review de novo the interpretation and application of the
Sentencing Guidelines. See Dupree, 57 F.4th at 1272. But when a
defendant fails to raise an argument before the district court, we
review only for plain error. See United States v. Johnson, 694 F.3d
1192, 1195 (11th Cir. 2012); Fed. R. Crim. P. 52(b). “Plain error
occurs where (1) there is an error; (2) that is plain or obvious; (3)
affecting the defendant’s substantial rights in that it was prejudicial
and not harmless; and (4) that seriously affects the fairness, integ-
rity or public reputation of the judicial proceedings.” Johnson, 694
F.3d at 1195 (quotation marks omitted). For an error to be obvious
under plain error review, “it must be plain under controlling
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4 Opinion of the Court 22-10839
precedent or in view of the unequivocally clear words of a statute
or rule.” Id. (quotation marks omitted). An appellant may satisfy
the second prong of the plain-error test by showing that the error
is plain at the time of appellate consideration. See Henderson v.
United States, 568 U.S. 266, 279 (2013). “When a defendant is sen-
tenced under an incorrect Guidelines range—whether or not the
defendant’s ultimate sentence falls within the correct range—the
error itself can, and most often will, be sufficient to show a reason-
able probability of a different outcome absent the error.” Mo-
lina-Martinez v. United States, 578 U.S. 189, 198 (2016). Likewise,
“[t]he risk of unnecessary deprivation of liberty particularly under-
mines the fairness, integrity, or public reputation of judicial pro-
ceedings in the context of a plain Guidelines error because of the
role the district court plays in calculating the range and the relative
ease of correcting the error.” Rosales-Mireles v. United States, 138 S.
Ct. 1897, 1908 (2018).
A defendant is considered a career offender under the Sen-
tencing Guidelines if (1) he was at least 18 years old when he com-
mitted the instant offense of conviction, (2) the “instant offense of
conviction is a felony that is either a crime of violence or a con-
trolled substance,” and (3) he “has at least two prior felony convic-
tions of either a crime of violence or a controlled substance of-
fense.” U.S.S.G. § 4B1.1(a). A “controlled substance offense” is an
“offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that prohibits the manufacture, im-
port, export, distribution, or dispensing of a controlled substance
(or a counterfeit substance) or the possession of a controlled
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22-10839 Opinion of the Court 5
substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.” Id. § 4B1.2(b). The com-
mentary to § 4B1.2(b) specifies that “controlled substance offense”
includes “conspiring . . . to commit such offenses.” Id., § 4B1.2,
comment. (n.1).
In Dupree, we considered whether an inchoate offense qual-
ified as a “controlled substance offense” for purposes of the ca-
reer-offender enhancement in § 4B1.2(b). See Dupree, 57 F.4th at
1271. There, the district court had sentenced Dupree as a career
offender based partly on his instant conviction for conspiracy to
possess with intent to distribute a controlled substance in violation
of 21 U.S.C. § 846. Id. After a panel of this Court affirmed Dupree’s
sentence based on prior panel precedent, we granted Dupree’s pe-
tition to rehear the case en banc. Id. We then held that § 4B1.2(b)’s
“controlled substance offense” definition unambiguously excludes
inchoate offenses like conspiracy and attempt and that it thus was
unnecessary to consider, much less defer to, the commentary to §
4B1.2 stating that “controlled substance offense” includes conspir-
acy offenses. See id. at 1277-79. Applying this holding, we con-
cluded that Dupree’s conviction for conspiracy to possess with in-
tent to distribute heroin and cocaine in violation of § 846 was not a
controlled substance offense because the plain text of § 4B1.2(b)
unambiguously excludes inchoate crimes. See id. at 1280. Accord-
ingly, we vacated Dupree’s sentence and remanded for resentenc-
ing without application of the career-offender enhancement. See
id.
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6 Opinion of the Court 22-10839
We grant Bautista-Villarreal’s motion for summary reversal.
See Groendyke Transp., Inc., 406 F.2d at 1162; Johnson, 694 F.3d at
1195; Dupree, 57 F.4th at 1279-80. Bautista-Villarreal failed to raise
before the district court the argument that the career-offender en-
hancement did not apply because his instant conviction for conspir-
acy to possess with intent to distribute a controlled substance was
not a “controlled substance offense” under § 4B1.2(b), so our re-
view is only for plain error. See Johnson, 694 F.3d at 1195. But even
reviewing for plain error, summary reversal is appropriate because
there can be no substantial question as to the outcome of the case.
See Groendyke Transp., Inc., 406 F.2d at 1162; Dupree, 57 F.4th at
1279-80. The district court plainly erred under now-controlling
precedent, Dupree, by applying a career-offender enhancement
based partly on Bautista-Villarreal’s instant conviction for conspir-
acy to possess with intent to distribute a controlled substance un-
der § 846. See Dupree, 57 F.4th at 1279-80; Henderson, 568 U.S. at
279. This plain error in applying the career-offender enhancement
affected Bautista-Villarreal’s substantial rights. It increased his total
offense level from 34 to 37 before application of the acceptance-of-
responsibility reduction and his criminal history category from IV
to VI without the enhancement, and, in turn, increased his result-
ing guideline range from 151 to 188 months to 262 to 327 months
before the downward departure for substantial assistance. Finally,
a plain error of sentencing a defendant based on an incorrectly cal-
culated guideline range ordinarily affects a defendant’s substantial
rights and seriously affects the fairness, integrity or public
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22-10839 Opinion of the Court 7
reputation of the judicial proceedings. See Rosales-Mireles, 138 S. Ct.
at 1908; Molina-Martinez, 578 U.S. at 198. Vacatur of Bautista-Vil-
larreal’s sentences on both counts is warranted because his guide-
line range for both counts was driven by the higher offense level
and criminal history category triggered by the career-offender en-
hancement on the drug conspiracy count and the court sentenced
him jointly on both counts using the plainly erroneous guideline
range.
In sum, we conclude that Bautista-Villarreal is correct as a
matter of law. See Groendyke Transp., Inc., 406 F.2d at 1162. We
therefore GRANT Bautista-Villarreal’s motion, summarily
VACATE his total sentence, and REMAND his case for resentenc-
ing consistent with this opinion.
VACATED AND REMANDED.
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