USA v. Richard Bond

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12201
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD BOND,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:19-cr-00021-LAG-TQL-14
____________________
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2 Opinion of the Court 22-12201
Before WILSON, L UCK , and B RASHER , Circuit Judges.
PER CURIAM:
Richard Bond pleaded guilty to one count of conspiring to
possess with intent to distribute over 50 milligrams of metham-
phetamine. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 846. The
district court sentenced Bond to 220 months’ imprisonment. On
appeal, Bond contests three decisions underlying the district court’s
sentence: (1) the district court’s conclusion that Bond is a “career
offender” under U.S.S.G. § 4B1.2; (2) the district court’s calculation
of the quantity of methamphetamine Bond conspired to possess;
and (3) the district court’s conclusion that it was reasonably fore-
seeable to Bond that a co-conspirator would use a firearm in con-
nection with the conspiracy. We agree with Bond on the first issue
and, therefore, vacate his sentence and remand for resentencing. In
light of that disposition, we need not resolve the other two issues
Bond raises.
The district court plainly erred when it decided that Bond
qualified as a career offender based on the instant conspiracy of-
fense. The guidelines provisions in effect at the time of Bond’s sen-
tencing did not allow for district courts to count inchoate drug of-
fenses toward career offender status under U.S.S.G. § 4B1.2. United
States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc). The district
court’s error is considered plain—and remand is necessary—even
though the district court did not have the benefit of our Dupree de-
cision when it sentenced Bond. See United States v. Rodriguez, 398
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22-12201 Opinion of the Court 3
F.3d 1291, 1299 (11th Cir. 2005) (quoting Johnson v. United States,
520 U.S. 461, 468 (1997)). The United States concedes that Dupree
requires vacatur of the sentence and remand for resentencing.1
Because we vacate Bond’s sentence and remand for resen-
tencing, we do not reach Bond’s meth-quantity and firearm-en-
hancement arguments. Bond expresses concern that if we do not
address these issues now, the district court will treat its prior rul-
ings as law of the case. We are not convinced. For starters, our
precedent is clear that “when a criminal sentence is vacated, it be-
comes void in its entirety; the sentence—including any enhance-
ments—has been wholly nullified and the slate wiped clean.”
United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996) (quotation
marks omitted). So there’s nothing requiring the district court to
adhere to its prior conclusions. And it is not at all clear that the
district court would stick to those conclusions anyway. The first
time around, the district court understandably did not think these
issues of much importance because, in light of the career offender
enhancement, Bond’s guidelines range would not have changed.
We think the proper course of action is to let the district court
1 Since our decision in Dupree, the sentencing guidelines have been amended
in such a way that Bond’s inchoate drug offense now counts toward career
offender status. Aside from the United States briefly acknowledging the issue
in a footnote of its brief, the parties have not discussed whether and to what
extent the guidelines amendment should apply to Bond upon remand.
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4 Opinion of the Court 22-12201
“revisit any rulings it made at the initial sentencing.” United States
v. Yost, 185 F.3d 1178, 1181 (11th Cir. 1999).
VACATED AND REMANDED
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