           Case: 17-13735   Date Filed: 02/15/2019   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13735
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:13-cr-60167-WJZ-1



UNITED STATES OF AMERICA,

                                             Plaintiff – Appellee,


versus

CEDRICK WILLIAMS,

                                             Defendant – Appellant.



                      ________________________

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

                            (February 15, 2019)


Before WILLIAM PRYOR, JORDAN, and GRANT, Circuit Judges.
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PER CURIAM:

      Cedric Williams appeals the 162-month sentence imposed by the district court

on resentencing.

      In 2014, Mr. Williams pled guilty to committing and attempting to commit

Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and unlawfully possessing a

firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). He later filed a

motion to vacate his sentence under 28 U.S.C. § 2255 pursuant to Johnson v. United

States, 135 S. Ct. 2551 (2015). The government agreed that the motion should be

granted, and the district court vacated Mr. Williams’ sentence and set his case for

resentencing.

      Mr. Williams now appeals that second sentence. He argues that the district

court committed plain error by applying the version of the Sentencing Guidelines in

effect at the time of his original sentencing (the 2013 version), rather than the

guidelines in effect at the time of his resentencing (the 2016 version).           The

government agrees with Mr. Williams, confessing error on appeal.

      We agree that the district court committed plain error. To establish plain error,

Mr. Williams must show that there was (1) an error, (2) that is plain, and (3) that

affects substantial rights. See United States v. Shelton, 400 F.3d 1325, 1328–29

(11th Cir. 2005). “If all three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but only if (4) the error seriously


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affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at

1329 (quotation omitted). For an error to be plain, it must be obvious or clear under

current law. See United States v. Baker, 432 F.3d 1189, 1207 (11th Cir. 2005). For

the error to be prejudicial, it must have “affected the outcome of the district court

proceedings” with a reasonable probability that, had the error not occurred, the result

may have been different. United States v. Olano, 507 U.S. 725, 734 (1993). See

also United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005).

      The error here was plain. District courts must use the guidelines in effect on

the date that the defendant is sentenced, unless doing so causes an ex post facto

violation. See 18 U.S.C. § 3553(a)(4)(A)(ii). See also U.S.S.G. § 1B1.11(a) (“The

court shall use the Guidelines Manual in effect on the date that the defendant is

sentenced.”); United States v. Lance, 23 F.3d 343, 344 (11th Cir. 1994) (“The

Guidelines also provide, however, that a sentencing judge must use the Guidelines

Manual in effect on the date the crime was committed, if using the Guidelines

Manual in effect on the date of sentencing would violate the ex post facto clause of

the United States Constitution.”) (citing § 1B1.11(b)(1)).

      The exception to this rule—for sentences imposed in violation of law, as the

result of an incorrect application of the sentencing guidelines, or because the district

court committed a procedural error under § 3742(f)(2)—is inapplicable here. Mr.




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Williams was resentenced after the district court granted his § 2255 motion. See

§ 3742(g).

      The error was also prejudicial. Mr. Williams was classified as a career

offender under the 2013 guidelines, and his advisory guideline range was 151 to 188

months’ imprisonment. The district court sentenced him to 162 months in prison,

within that range. Had Mr. Williams been properly sentenced under the 2016

guidelines, his conviction for “burglary of an unoccupied dwelling” would not have

qualified as a crime of violence under U.S.S.G. § 4B1.2(a). That is because the 2016

guidelines eliminated the “residual clause” of § 4B1.2(e). See App. C, amend. 798

(Supp. Nov. 1, 2016). Because “burglary of an unoccupied dwelling” does not

qualify under either the elements clause or the enumerated offenses clause of

§ 4B1.2(a)(1) or (2)—and was only considered a crime of violence under the now-

repealed residual clause—the district court could not have considered it a crime of

violence under the 2016 guidelines. See United States v. Matchett, 802 F.3d 1185,

1196–97 (11th Cir. 2015).

      This error affected Mr. Williams’ sentence. The presentence investigation

report calculated Mr. Williams’ offense level at 24 because of his two felony

convictions for crimes of violence.     Without the “burglary of an unoccupied

dwelling” conviction, Mr. Williams would only have had one crime of violence,

which would have reduced his base offense level to 20. See § 2K2.1(a)(2). He


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would also no longer qualify as a career offender under § 4B1.1. And finally, his

criminal history points would lead to a criminal history score of V rather than VI,

what he received. Under the 2016 guidelines, Mr. Williams’ advisory range would

have been 63 to 78 months, about 7-9 years below the range under which he was

sentenced. Given the large discrepancy in the two sentencing ranges, we exercise

our discretion to correct the error because it affected the fairness of the sentencing

proceeding.

      We recognize that there is an appeal waiver in Mr. Williams’ plea agreement.

But the government states that it has “elected not to enforce the appellate waiver

under the circumstances of this case.” Appellee’s Br. at 16–17. We accept that

waiver.   Plea agreements are like contracts, albeit “constitutional contracts.”

Ricketts v. Adamson, 483 U.S. 1, 16 (1987). As a result, “the law of commercial

contract may in some cases prove useful . . . in construing a plea agreement.” Id. It

is a basic principle of contract law that where two parties mutually agree to depart

from a contract, the court may apply that new agreement. See Howard O. Hunter,

Modern Law of Contracts § 19:32 (2018) (explaining that “substituted agreement,”

“modification,” and “waiver” all describe the well-known concept where “one or

both parties have agreed by words or actions to a change in the original agreement”).

      Here, the government has chosen not to enforce the appeal waiver in Mr.

Williams’ plea agreement. We see no reason to prevent the government from doing


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so. See e.g., United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000) (declining

to consider appeal waiver where government had expressly chosen not to rely on it).

      We vacate Mr. Williams’ sentence and remand for resentencing.

      REVERSED and REMANDED.




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