           Case: 16-16829   Date Filed: 08/18/2017   Page: 1 of 5


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-16829
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:15-cr-00131-WTM-GRS-1



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellant,

versus

LEON CARTER,

                                             Defendant - Appellee.

                      ________________________

               Appeals from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                            (August 18, 2017)

Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 16-16829     Date Filed: 08/18/2017    Page: 2 of 5


      Leon Carter, who pled guilty to one count of illegal firearm possession,

appeals his classification as an armed career criminal under the Armed Career

Criminal Act, 18 U.S.C. § 924(e). The government, maintaining that Mr. Carter

was correctly classified as an armed career criminal, appeals Mr. Carter’s

96-month sentence on the ground that the district court lacked a legal basis to

impose a sentence below ACCA’s 180-month mandatory minimum.

      Because neither party objected to the adverse district court decision now

being appealed, we review for plain error. See, e.g., United States v. Raad, 406

F.3d 1322, 1323 (11th Cir. 2005). Following a review of the record and the

parties’ briefs, we conclude that the district court did not plainly err in classifying

Mr. Carter as an armed career criminal, but that it committed plain error when it

imposed a sentence below the ACCA statutory minimum.

                                           I

      “Plain error occurs where (1) there is an error; (2) that is plain or obvious;

(3) affecting the defendant’s substantial rights in that it was prejudicial and not

harmless; and (4) that seriously affects the fairness, integrity or public reputation of

the judicial proceedings.” United States v. Hall, 314 F.3d 565, 566 (11th Cir.

2002). “[W]here the explicit language of a statute or rule does not specifically

resolve an issue, there can be no plain error where there is no precedent from the




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Supreme Court or this Court directly resolving it.” United States v. Lejarde-Rada,

319 F.3d 1288, 1291 (11th Cir. 2003).

                                         II

      Mr. Carter contends that the district court plainly erred by classifying him as

an armed career criminal. Because he pled guilty to a federal firearms offense,

Mr. Carter qualifies as an armed career criminal if he “has three previous

convictions . . . for a violent felony or a serious drug offense, or both, committed

on occasions different from one another.” 18 U.S.C. § 924(e)(1). He argues that

his prior Georgia convictions—including for aggravated assault, sale of a

controlled substance, and conspiracy to distribute a controlled substance—do not

count as ACCA predicate offenses.        Mr. Carter, however, has not cited any

Supreme Court or Eleventh Circuit cases holding that his prior Georgia convictions

do not qualify as ACCA predicate offenses, and we are not aware of any such

decisions. See Br. of Leon Carter at 21–31. He therefore cannot establish that the

district court committed plain error. See Lejarde-Rada, 319 F.3d at 1291.

                                        III

      The government argues that the district court plainly erred in sentencing Mr.

Carter below the 180-month mandatory minimum prescribed by ACCA.

Mr. Carter concedes that, if he qualifies as an armed career criminal, his 96-month

sentence constitutes plain error. See Br. of Leon Carter at 13. Because we have



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already decided that his classification as an armed career criminal does not

constitute plain error, this should be the end of the inquiry. Mr. Carter, however,

urges us not to exercise our discretion under plain-error review to correct his

sentence on the ground that various “countervailing factors,” id. at 14, demonstrate

that the district court’s error does not “seriously affect[ ] the fairness, integrity or

public reputation of the judicial proceedings.” Hall, 314 F.3d at 566.

      But our precedent says just the opposite. In United States v. Clark, 274 F.3d

1325, 1325–26, 1328 (11th Cir. 2001), the defendant was convicted of an offense

that carried a statutory minimum sentence of 240 months’ imprisonment, but the

district court imposed a 150-month sentence. The government appealed, arguing

that the district court erred in imposing a sentence below the statutory minimum

without a legal basis (such as when the government files a substantial assistance

motion or the defendant qualifies for “safety valve” relief under 18 U.S.C.

§ 3553(f)).

      We reviewed the sentence for plain error because the government had failed

to object to the sentence at the district court, and concluded that “the district

court’s imposition of a sentence that is less than two-thirds of the

statutorily-required minimum” constituted plain error. Clark, 274 F.3d at 1329. In

reaching this conclusion, we explained that the sentence imposed, which we

described as an “extraordinary downward departure” from the mandatory



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minimum, “show[ed] a disregard for governing law, diminishe[d] the fairness of

the criminal sentencing scheme by allowing disparate sentences to be imposed on

similarly-situated defendants, and undermine[d] the integrity and public reputation

of the judicial system.” Id. Similarly, we have also vacated and remanded for re-

sentencing where a defendant’s sentence exceeded the statutory maximum, on the

ground that the imposition of such a sentence constitutes plain error and affects the

defendant’s substantial rights as well as the fairness, integrity, and public

reputation of the judicial proceedings. See, e.g., United States v. Sanchez, 586 F.3d

918, 930 (11th Cir. 2009).

      Mr. Carter’s sentence, which stands at nearly half the statutorily-required

minimum, presents the same systemic problems to the fairness and integrity of the

judicial proceedings as the sentence in Clark. Our decision in Clark therefore

forecloses Mr. Carter’s argument that the fourth prong of the plain-error analysis

favors discretionary refusal on our part to correct his sentence. See also United

States v. Castaing-Sosa, 530 F.3d 1358, 1361 (11th Cir. 2008) (reversing, under de

novo review, a sentence that was only two-thirds the mandatory minimum).

Accordingly, we vacate Mr. Carter’s sentence and remand this case to the district

court for re-sentencing.

      AFFIRMED IN PART, AND VACATED AND REMANDED IN PART.




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