           Case: 17-14708    Date Filed: 09/28/2018   Page: 1 of 9


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-14708
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 3:17-cr-00055-MCR-1



UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee,

                                   versus


DEANGELO O. BLACK,
a.k.a. Deago,

                                                      Defendant - Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                            (September 28, 2018)

Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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       Deangelo Black appeals his 188-month sentence, imposed after he pled

guilty to distributing methamphetamine and possessing a firearm. On appeal,

Black argues that the district court procedurally erred in sentencing him by failing

to establish the methamphetamine’s weight and by enhancing his sentence based

on his possession of a firearm in connection with a drug trafficking offense. After

careful review, we affirm in part, and vacate in part, and remand.

                                   I.      BACKGROUND

       An undercover agent purchased 98-99% pure methamphetamine from Black

on three occasions in March of 2017: he purchased 13.27 grams on March 15,

55.15 grams on March 22, and 27.43 grams on March 23. During the last

transaction, Black and the agent also negotiated a deal for the sale of

approximately 56 grams of methamphetamine, for which the agent prepaid. On

March 28—five days after their last drug transaction—Black told the agent over

the phone that he could orchestrate the sale of two firearms to the agent. The same

day, the agent purchased the firearms from Black.

       Based on these transactions, Black was charged with three counts of

distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1), and one

count of possessing a firearm in violation of 18 U.S.C. § 922(g). 1 He pled guilty to



       1
        Black had previously been convicted in Florida of two felonies. See 18 U.S.C.
§ 922(g)(1) (“It shall be unlawful for any person . . . who has been convicted in any court of, a
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all charges. The factual basis for the plea specified the actual weight of

methamphetamine involved in the three sales. The district court accepted Black’s

plea.

        Prior to sentencing, a probation officer prepared a presentence investigation

report (PSI). The PSI specified the weight of the three sales according to the Drug

Enforcement Agency’s laboratory reports, which aligned with the amounts

specified in the plea agreement. The PSI also stated that Black had agreed to sell

the agent 56.7 grams of methamphetamine in the future. The PSI provided that

Black’s base offense level was 32. 2 The PSI applied a two-level enhancement

because the offense involved the sale of firearms, and a two-level enhancement for

obstruction of justice.

        Black objected to the obstruction of justice enhancement and argued that he

should be credited for accepting responsibility. The government agreed with Black

that a reduction for acceptance of responsibility was appropriate. Prior to

sentencing, the probation officer amended the PSI, crediting Black with a three-

level reduction for acceptance of responsibility. Based on a total offense level of




crime punishable by imprisonment for a term exceeding one year,” to “possess in or affecting
commerce, any firearm or ammunition . . . .”).
        2
          United States Sentencing Guidelines § 2D1.1(a)(5) provides a base offense level of 32
for violations of 21 U.S.C. § 841(a)(1) that involve at least 150 grams, but less than 500 grams of
methamphetamine (actual).

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33, the PSI recommended a guidelines range of 188 to 235 months of

imprisonment.

      At the sentencing hearing, the district court rejected Black’s remaining

objection as to the obstruction of justice enhancement. It adopted the guidelines

range recommended by the PSI. After listening to the parties’ arguments and

considering the guidelines and the factors in 18 U.S.C. § 3553(a), the district court

sentenced Black to a total of 188 months of imprisonment on the distribution

counts and 120 months on the firearm count, to be served concurrently. This is

Black’s appeal.

                         II.    STANDARD OF REVIEW

      Because Black raises both of “his objection[s] for the first time on appeal,

we review for plain error only.” United States v. Chafin, 808 F.3d 1263, 1268

(2015). To establish plain error, Black must show that there is an (1) error, (2) that

is plain, (3) that affected his substantial rights, and (4) that seriously affected the

fairness, integrity, or public reputation of judicial proceedings. United States v.

Lejarde-Rada, 319 F.3d 1288, 1290 (11th Cir. 2003).

                                 III.   DISCUSSION

A.    The District Court Did Not Plainly Err in Sentencing Black Based on
      the Drug Quantities Provided in the PSI.

      Black argues that the district court plainly erred in relying on the weight of

methamphetamine as set forth in the PSI. A sentencing court’s findings of fact
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“may be based on evidence heard during trial, facts admitted by a defendant’s plea

of guilty, undisputed statements in the presentence report, or evidence presented at

the sentencing hearing.” United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.

1989). “When a defendant challenges one of the factual bases of his sentence . . .

the Government has the burden of establishing the disputed fact by a

preponderance of the evidence.” United States v. Sepulveda, 115 F.3d 882, 890

(11th Cir. 1997) (alteration in original) (internal quotations omitted). But if the

defendant fails to object to the facts contained in the PSI, “he is deemed to have

admitted those facts.” United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir.

2006).

      The district court did not err in relying on the total weight of

methamphetamine set forth in the PSI. On appeal, Black argues that the weight of

the methamphetamine may have included the weight of its packaging, contrary to

the Sentencing Guidelines, which instruct that a substance’s weight “does not

include materials that must be separated from the controlled substance before the

controlled substance can be used.” U.S.S.G. § 2D1.1(c) n.1. But because Black

failed to object to the calculation of the drug’s weight during sentencing, he

admitted to the drug quantities as specified in the PSI. See United States v.

Williams, 438 F.3d 1272, 1274 (11th Cir. 2006) (explaining that the defendant’s

failure to contest the drug quantity as stated in the PSI “constituted an admission of


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that quantity”). Furthermore, Black admitted in his plea agreement that he sold

methamphetamine in the same quantities as those stated in the PSI. Because the

district court committed no error, it did not plainly err in calculating Black’s

sentence based on the weight of methamphetamine specified in the PSI.

B.     The District Court Plainly Erred by Applying a Two-Level
       Enhancement for Possession of a Firearm.

       Black argues that the district court plainly erred by enhancing his sentence

based on his possession of a firearm in relation to a drug trafficking crime. The

government concedes that the district court erred and that the error affected

Black’s substantial rights. 3 The Sentencing Guidelines provide a two-level

enhancement where the defendant possessed a firearm in relation to a crime

involving trafficking of illegal drugs. U.S.S.G. § 2D.1.1(b)(1). “The government

bears the initial burden of showing, by a preponderance of the evidence, that a

firearm was ‘present’ at the site of the charged conduct or that the defendant

possessed it during conduct associated with the offense of conviction.” United

States v. George, 872 F.3d 1197, 1204 (11th Cir. 2017). To meet its burden, the

government must show that the firearm had “some purpose or effect with respect to

the drug trafficking crime” and was not merely present by “accident or

coincidence.” Id. (internal quotation marks omitted). If the government meets its

       3
          “‘Confessions of error are, of course, entitled to and given great weight, but they do not
relieve this Court of the performance of the judicial function.’” United States v. Esprit, 841 F.3d
1235, 1237 n.1 (11th Cir. 2016) (quoting Sibron v. New York, 392 U.S. 40, 58 (1968)).
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burden, the defendant “must demonstrate that a connection between the weapon

and the offense was ‘clearly improbable.’” United States v. Stallings, 463 F.3d

1218, 1220 (11th Cir. 2006).

      As for the first two prongs of the plain error test, the district court committed

an error that was plain because there was no evidence that Black possessed a

firearm during any of the methamphetamine transactions. The PSI stated that the

enhancement applied because the offense involved Black’s selling of firearms. But

the transaction involving firearms took place on March 28—five days after the last

of the three methamphetamine sales. We thus agree with the government that the

record clearly establishes that “the firearms sold on March 28, 2017, were not

related to the methamphetamine sold earlier in the month,” and that the

government thus failed to meet its burden to show that Black possessed a firearm

during the narcotic transactions. Appellee’s Br. at 15. Because this error is

“obvious and . . . clear under current law,” the first two prongs of the plain error

test are satisfied. United States v. Lange, 862 F.3d 1290, 1296 (11th Cir. 2017),

cert. denied, 138 S. Ct. 488 (2017) (internal quotation marks omitted).

      Turning to the third prong of the plain error test, we agree with Black and

the government that the error affected Black’s substantial rights. To demonstrate

that an error harmed a defendant’s substantial rights, the defendant must generally

“show a reasonable probability that, but for the error, the outcome of the


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proceeding would have been different.” Molina-Martinez v. United States, 136 S.

Ct. 1338, 1343 (2016) (internal quotation marks omitted). As the Supreme Court

has explained, when a defendant is sentenced under an incorrect guidelines range,

“the error itself can, and most often will, be sufficient to show a reasonable

probability of a different outcome absent the error” regardless of whether the

defendant’s ultimate sentence falls within the correct range. Id. at 1345. Here,

without the incorrectly applied two-level enhancement, Black would have had a

total offense level of 31—rather than 33—resulting in a lower guidelines range.

Black’s substantial rights were thus impacted by the error.

      Finally, under the fourth prong of plain error review, “the plain error at

sentencing seriously affected the fairness, integrity or public reputation of judicial

proceedings.” United States v. Shelton, 400 F.3d 1325, 1333 (11th Cir. 2005)

(alteration adopted) (internal quotation marks omitted). The 188-month sentence

the district court chose “is conspicuous for its position as the lowest sentence

within what [it] believed to be the applicable range.” Molina-Martinez at 1347.

But under the correct guidelines range, the minimum sentence would be 151

months. We thus conclude that this error affected the “fairness, integrity or public

reputation of judicial proceedings.” Cf. Shelton, 400 F.3d at 1333 (holding that the

fourth prong of the plain error test was satisfied where the district court indicated




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an express desire to sentence the defendant below the guidelines range, but

incorrectly believed that it could not do so).

                                IV.   CONCLUSION

      For the foregoing reasons, we affirm in part, vacate in part, and remand.

      AFFIRMED IN PART; VACATED IN PART, AND REMANDED.




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