            Case: 18-14812    Date Filed: 12/23/2019   Page: 1 of 7


                                                                      [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                               No. 18-14812
                           Non-Argument Calendar
                         ________________________

                D.C. Docket No. 8:16-cr-00232-SDM-CPT-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

RONALD JOHN BANKSTON, III,

                                                           Defendant-Appellant.

                         ________________________

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

                             (December 23, 2019)

Before MARTIN, NEWSOM, and GRANT, Circuit Judges.

GRANT, Circuit Judge:
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      Ronald John Bankston III appeals his 130-month sentence, which he
received after convictions for possessing a firearm as a felon, possessing body

armor as a violent felon, and distributing methamphetamine. On appeal, Bankston
objects—for the first time—to a two-level enhancement to his sentence for the
“use” of body armor under section 3B1.5 of the United States Sentencing
Guidelines; he says there was no evidence that he used body armor as defined in
that guideline. After careful consideration, we think he is right and vacate his
sentence.

                                          I.
      In the spring of 2016, guns, ammunition, and two body-armor vests were
stolen from a law enforcement officer’s vehicle. Two days later, a confidential
informant gave local police a tip about the location of one of the stolen guns. That
same day, an undercover detective and the confidential informant went to see
Bankston, who sold them one of the stolen guns, the two body-armor vests,
ammunition, and methamphetamine.
      Bankston pleaded guilty to two counts of unlawful possession and one count
of distributing methamphetamine. In calculating Bankston’s sentence, the district
court relied on the presentence investigation report (PSR). Pointing to Bankston’s
selling of body-armor vests, the PSR enhanced Bankston’s sentence by two levels
for the “use” of body armor in a drug trafficking offense. See U.S. Sentencing
Guidelines § 3B1.5 (Nov. 2016). Without any objection from Bankston, the
district court adopted the PSR’s recommendation on that issue. The two-level
enhancement put Bankston’s offense level at 27. Combined with his criminal

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history category of VI, his Guidelines range was 130 to 162 months. The district
court sentenced Bankston to 130 months, as recommended by the United States.

                                            II.
      We review for plain error because Bankston failed to protest the application
of the body-armor enhancement guideline in the district court. United States v.
Beckles, 565 F.3d 832, 842 (11th Cir. 2009). To meet the plain-error standard,
Bankston must establish that (1) an error occurred; (2) the error was obvious; (3) it
affected his “substantial rights in that it was prejudicial and not harmless;” and

(4) it “seriously affects the fairness, integrity, or public reputation of the judicial
proceedings.” Id. (citation and punctuation omitted). The Supreme Court has
instructed that, once those “conditions have been met, the court of appeals should
exercise its discretion to correct the forfeited error.” See Rosales-Mireles v. United
States, 138 S. Ct. 1897, 1905 (2018) (citation and punctuation omitted).
                                           III.
      Applying that standard here is straightforward. An error is obvious when it
flies in the face of either binding precedent or “the explicit language of a statute or
rule.” See United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (per
curiam) (citation and punctuation omitted); accord United States v. Bennett, 472
F.3d 825, 834 (11th Cir. 2006) (per curiam) (miscalculated Guidelines range was
plain error). Here, we have no precedent interpreting the relevant language, and
our analysis begins and ends with the language of the Sentencing Guidelines. “Our
interpretation of the sentencing guidelines and accompanying commentary is
governed by traditional rules of statutory construction.” United States v. Perez,

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366 F.3d 1178, 1182 (11th Cir. 2004). The Guidelines also “must be read
together” with the commentary. United States v. Ferreira, 275 F.3d 1020, 1029

(11th Cir. 2001) (citation and punctuation omitted). In fact, “commentary in the
Sentencing Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that guideline.” United States
v. Hall, 714 F.3d 1270, 1272 (11th Cir. 2013) (citation and punctuation omitted).
      Section 3B1.5 provides a two-level enhancement “[i]f the defendant was

convicted of a drug trafficking crime or a crime of violence” and “the offense
involved the use of body armor.” U.S.S.G. § 3B1.5(1), (2)(A). The commentary
defines “use” as either “active employment in a manner to protect the person from
gunfire” or “use as a means of bartering.” U.S.S.G. § 3B1.5, cmt. n.1. In short,
there are only two ways to “use” body armor under the guideline, and neither of
them involves selling it.
      Yet the only evidence of “use” here was that Bankston sold the armor for
money. Although the PSR asserted that Bankston’s sale of body armor amounted
to use as a means of bartering, selling is an activity that under both common usage
and dictionary definition falls outside of bartering. In fact, “barter” means to trade
goods or services without using money. See, e.g., Webster’s New World College
Dictionary (5th ed. 2018) (“trade by exchanging goods or services without using
money”); The American Heritage Dictionary of the English Language (5th ed.
2016) (similar); New Oxford American Dictionary (3d ed. 2010) (similar); Black’s
Law Dictionary (10th ed. 2014) (similar).

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      Of course, the Guidelines could have defined “use” to “include both
monetary and barter transactions”—as they did when defining “for pecuniary

gain.” U.S.S.G. § 2B1.5, cmt. n.5(A). But here they did not. And we “presume
that the Sentencing Commission said what it meant and meant what it said” in the
Guidelines and their commentary. United States v. Shannon, 631 F.3d 1187, 1190
(11th Cir. 2011) (citation and punctuation omitted). So only using body armor for
protection or barter gives rise to the enhancement at issue here.
      Despite the plain meaning of the guideline and its commentary, the

government offers legislative history. That legislative history, we are told by the
United States, reveals the guideline’s true purpose: “to take body armor out of the
hands of violent criminals and drug traffickers.” No matter. A “guideline’s
meaning is derived first from its plain language and, absent ambiguity, no
additional inquiry is necessary.” United States v. Cruz, 713 F.3d 600, 607 (11th
Cir. 2013) (citation omitted). “When the import of the words Congress has used is
clear, as it is here, we need not resort to legislative history, and we certainly should
not do so to undermine the plain meaning of the statutory language.” Harris v.
Garner, 216 F.3d 970, 976 (11th Cir. 2000) (en banc); see Perez, 366 F.3d at 1182
(rules of statutory construction apply to Sentencing Guidelines and commentary).
As at least one other court has also concluded, the plain language of the body-
armor enhancement guideline “precludes its application to the sale of body armor.”
See United States v. Juarez, 866 F.3d 622, 633 (5th Cir. 2017) (reviewing a
preserved challenge).



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      Understandably, the parties seem to agree that if Bankston shows that the
district court obviously erred in applying the body-armor enhancement, he will

have also satisfied the last two prongs of the plain-error standard. “When a
defendant is sentenced under an incorrect Guidelines range—whether or not the
defendant’s ultimate sentence falls within the correct range—the error itself can,
and most often will, be sufficient to show a reasonable probability of a different
outcome absent the error.” Molina-Martinez v. United States, 136 S. Ct. 1338,
1345 (2016). That showing of error satisfies the plain-error standard’s third prong,

prejudice—unless a case presents some “unusual circumstances.” Id. at 1347. We
find nothing unusual about the facts and circumstances of this case: following the
government’s recommendation, the district court sentenced Bankston to 130
months, the lowest end of his Guidelines range. Without the two-level
enhancement for “use” of body armor, Bankston’s Guidelines range is 110 to 137
months. We conclude that Bankston has shown a reasonable probability that the
outcome would be different under the correct range.
      As for the plain-error standard’s last factor, “[t]he risk of unnecessary
deprivation of liberty particularly undermines the fairness, integrity, or public
reputation of judicial proceedings in the context of a plain Guidelines error.”
Rosales-Mireles, 138 S. Ct. at 1908. A faulty enhancement, therefore, “ordinarily
will satisfy” the fourth prong, at least when the other three factors are met. Id.
Bankston meets this test.
      Bankston “was not ‘bartering’ by selling body armor.” Juarez, 866 F.3d at
633. The district court thus committed plain error by applying the two-level

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increase for use of body armor in the commission of a drug trafficking offense.
We vacate Bankston’s sentence and remand for resentencing without the body-

armor enhancement.
      VACATED AND REMANDED.




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