Argued: May 8, 2018
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)
Christine Madeleine Lee, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant.
Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY,
Charlottesville, Virginia, for Appellee.
W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Roanoke, Virginia, for Appellant.
T. Cullen, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia, for Appellee.
KING, AGEE, and HARRIS, Circuit Judges.
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.
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.
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
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).
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).
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.
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.
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.
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
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 ...