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United States v. Fluker

United States Court of Appeals, Fourth Circuit

June 5, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
EDDIE DEAN FLUKER, Defendant-Appellant.

          Argued: May 8, 2018

          Appeal from the United States District Court for the Western District of Virginia, at Abingdon. Michael F. Urbanski, Chief District Judge. (1:92-cr-00031-MFU-1)

         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.

          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, 135 S.Ct. 2551 (2015), and, in 2016, that this decision was retroactively applicable on collateral review, Welch v. United States, 136 S.Ct. 1257 (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 (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.

         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 ...


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