                                                                      [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                      OCTOBER 5, 2010
                                       No. 10-11021
                                                                         JOHN LEY
                                   Non-Argument Calendar                  CLERK
                                 ________________________

                           D.C. Docket No. 2:07-cr-14078-KMM-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                   Plaintiff-Appellee,

                                            versus

ANTYWAN E. BRYANT,

                                                     lllllllllllllllllllllDefendant-Appellant.

                                ________________________

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

                                      (October 5, 2010)

Before BARKETT, HULL, and MARTIN, Circuit Judges.

PER CURIAM:

         Antywan Bryant appeals his 151-month sentence, imposed upon his

pleading guilty to possessing with intent to distribute 50 grams or more of cocaine
base in violation of 21 U.S.C. § 841(a)(1). On appeal, Bryant argues that the

district court committed plain error when, contrary to this Court’s decision in

United States v. Wade, 458 F.3d 1273, 1281 (11th Cir. 2006), it denied him a two-

level reduction in his offense level for acceptance of responsibility, pursuant to

United States Sentencing Guidelines § 3E1.1(a) (Nov. 2007), on the basis of his

conduct prior to his indictment in this case. Upon review of the parties’ briefs and

the record, we agree that the district court committed plain error. For the reasons

set out below, we vacate Bryant’s sentence and remand the case to the district

court for further review and resentencing.1

                                                I.

       Bryant pleaded guilty to possessing with intent to distribute 50 grams or

more of cocaine base, in violation of 21 U.S.C. § 841(a)(1). On June 20, 2007,

Bryant was arrested by state authorities in Florida for the conduct that resulted in

his federal charge. He was released from state custody on bond the next day.

Then, on August 16, 2007, Bryant was arrested by the Florida Highway Patrol for

driving while his license was suspended. Bryant had $3,470 in his possession at

the time, and admitted, according to the presentence investigation report (“PSR”),


       1
        Bryant also argues that his sentence was substantively unreasonable. Because we vacate
Bryant’s sentence and remand the case to the district court for resentencing, we need not address
the substantive reasonableness of the sentence.

                                                2
that he “was trying to get some cocaine to make some money.” On October 25,

2007, a federal grand jury returned an indictment charging Bryant, on the basis of

the conduct resulting in his first arrest, with one count of possessing with intent to

distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1),

and one count of being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). Pursuant to a plea agreement with the government, Bryant pleaded

guilty on December 11, 2007, to possessing with intent to distribute 50 grams or

more of cocaine base. In return, the government agreed to dismiss the remaining

count charging Bryant with being a felon in possession of a firearm.

      In the PSR, the probation officer determined that Bryant had a base offense

level of 30, pursuant to U.S.S.G. § 2D1.1(a)(3), which was enhanced by two levels

to 32, pursuant to U.S.S.G. § 2D1.1(b)(1), because Bryant possessed a dangerous

weapon. In considering whether a reduction for acceptance of responsibility

would be appropriate under U.S.S.G. § 3E1.1, the probation officer noted that

Bryant had admitted the offense, expressed regret, and stated his desire to try to

help stop the drug problem in his community. Nevertheless, the probation officer

concluded from the facts of Bryant’s second arrest that he had “failed to

voluntarily terminate or withdraw from criminal conduct after commission of the

instant offense and does not qualify for a reduction for acceptance of

                                          3
responsibility.” The probation officer assessed Bryant four criminal history

points, resulting in a criminal history category of III, which produced a guideline

sentencing range of 151 to 188 months imprisonment. The offense carries a

statutory minimum sentence of ten years imprisonment followed by at least five

years of supervised release. 21 U.S.C. § 841(b)(1)(A).

      Bryant objected that the criminal history category of III overstated his actual

conduct, as most of his prior criminal conduct was related to driving violations

and the rest were misdemeanors not involving the sale of illegal substances.

Based on this, he argued for a downward departure pursuant to U.S.S.G.

§ 4A1.3(b)(1). At the sentencing hearing on March 3, 2008, the district court

denied the objection as untimely, but in considering the 18 U.S.C. § 3553(a)

factors, the court also noted that it would deny Bryant’s objections on the merits.

Adopting the PSR’s guideline calculation and range of 151 to 188 months, the

district court found that “a sentence at the low end of the advisory guideline range

is sufficiently punitive to deter this defendant from further criminal conduct. As a

result, the sentence will be imposed within and at the bottom of the advisory

guideline range.” The court then imposed a sentence of 151 months imprisonment

followed by five years of supervised release.




                                          4
      In March 2009, Bryant filed a motion to vacate, set aside, or correct the

sentence, pursuant to 28 U.S.C. § 2255, alleging that his counsel had failed to

perfect an appeal from his sentence despite his request to do so. The district court

granted Bryant’s § 2255 motion, vacated his prior judgment, and scheduled a

resentencing. Prior to the resentencing, Bryant submitted objections to the PSI.

This time, he objected to the PSI’s conclusion that he did not qualify for a

reduction for acceptance of responsibility on the basis of the August 16, 2007

arrest, because that arrest occurred before he was indicted in this case on October

25, 2007. At resentencing on March 1, 2010, the district court once again imposed

a sentence of 151 months imprisonment followed by five years of supervised

release.

                                         II.

      We review the district court’s findings of fact for clear error, but review de

novo its interpretation of the sentencing guidelines and its application of the

guidelines to the facts. United States v. Campbell, 491 F.3d 1306, 1315 (11th Cir.

2007). However, we review sentencing issues raised for the first time on appeal

for plain error. United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006).

Bryant failed to object to the denial of a two-level reduction for acceptance of

responsibility under § 3E1.1(a) at his first sentencing hearing. He did raise the

                                          5
issue at resentencing, but the district court apparently concluded that it was bound

by this Court’s decision in United States v. Parrish, 427 F.3d 1345, 1348 (11th Cir.

2005), to impose a sentence identical to Bryant’s original sentence.2

       “[T]o correct plain error: (1) there must be error; (2) the error must be plain;

and (3) the error must affect substantial rights.” United States v. Stevenson, 68

F.3d 1292, 1294 (11th Cir. 1995). If those factors are met, we have discretion to

correct the error if it “‘seriously affect[s] the fairness, integrity or public reputation

of the judicial proceedings.’” United States v. Olano, 507 U.S. 725, 732, 113 S.

Ct. 1770, 1776 (1993) (quoting United States v. Young, 470 U.S. 1, 15, 105 S. Ct.

1038, 1046 (1985)). An error is not “plain” unless it is “clear under current law.”

Id. at 734, 113 S. Ct. at 1777. “It is the law of this circuit that, at least where 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 Supreme Court or this

Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291

(11th Cir. 2003). For a defendant to show that his substantial rights were violated

as a result of a sentencing error, he must establish that there is a reasonable



       2
        We need not decide whether the district court properly interpreted Parrish, nor whether
Bryant properly raised the issue before the district court, because we conclude that the district
court committed plain error by denying Bryant a two-level reduction for acceptance of
responsibility in the original sentence.

                                                 6
probability that, but for the error, he would have received a lesser sentence.

United States v. Arias-Izquierdo, 449 F.3d 1168, 1190 (11th Cir. 2006); see

United States v. Marcus, 560 U.S. ---, 130 S. Ct. 2159, 2164 (2010). Where the

result of the error is “uncertain or indeterminate,” the defendant has not met his

burden of showing prejudice. United States v. Rodriguez, 398 F.3d 1291,

1299–1301 (11th Cir. 2005) (citing Jones v. United States, 527 U.S. 373, 394–95,

119 S. Ct. 2090, 2105 (1999)).

      A two-level reduction in a defendant’s offense level is appropriate where

“the defendant clearly demonstrates acceptance of responsibility for his offense.”

U.S.S.G. § 3E1.1(a). Application Note 3 of the commentary to § 3E1.1 states that

      Entry of a plea of guilty prior to the commencement of trial combined
      with truthfully admitting the conduct comprising the offense of
      conviction, and truthfully admitting or not falsely denying any
      additional relevant conduct . . . will constitute significant evidence of
      acceptance of responsibility for the purposes of [§ 3E1.1(a)].
      However, this evidence may be outweighed by conduct of the
      defendant that is inconsistent with such acceptance of responsibility.
      A defendant who enters a guilty plea is not entitled to an adjustment
      under this section as a matter of right.

Application Note 5 of the commentary to § 3E1.1 further observes that “[t]he

sentencing judge is in a unique position to evaluate a defendant’s acceptance of

responsibility. For this reason, the determination of the sentencing judge is

entitled to great deference on review.” But there are limits to the district court’s

                                          7
discretion to deny an offense-level reduction for acceptance of responsibility. See

Wade, 458 F.3d at 1279–81.

      In Wade, we considered whether “a district court, in evaluating whether a

defendant has clearly demonstrated acceptance of responsibility, may consider the

defendant’s conduct following the offense for which he was ultimately convicted

but before federal charges were brought against him.” Id. at 1279. The defendant

in Wade, like Bryant, was arrested twice by state authorities before he was

indicted for the conduct which was the basis of the first of his arrests. Id. at 1275.

Also like Bryant, the defendant in Wade was denied a two-level reduction for

acceptance of responsibility on the basis of his second state arrest. Id. at 1276.

We “conclude[d] that a defendant’s conduct following earlier state charges, at

least where that conduct occurred before he knew that federal charges were

forthcoming, ought not vitiate the effect of his otherwise exemplary acceptance of

responsibility once the federal charges were filed.” Id. at 1281. We explained that

we were following the First and Sixth Circuits in adopting “a bright line rule” that

a district court should not deny the two-level U.S.S.G. § 3E1.1(a) reduction on the

basis of pre-federal-charge conduct, because “[c]onsidering a defendant’s reaction

to prior state charges would decrease the likelihood of a reduction being granted

no matter how quickly and fully he accepted the later federal charges, thereby

                                          8
decreasing the incentive for him to do so.” Id. Wade cannot be distinguished

from Bryant’s case. In denying Bryant the two-level reduction for acceptance of

responsibility under § 3E1.1(a), the district court failed to adhere to the “bright

line rule” that we adopted in Wade. Because Wade addressed precisely the

scenario presented here, we conclude that error exists and that it is plain.3

           The remaining question is whether that error affects substantial rights. The

government contends that it does not, because there is not a reasonable probability

that the sentence would be different. We disagree. The district court expressly

stated its intention to impose a sentence “at the bottom of the advisory guideline

range.” With a two-level reduction for acceptance of responsibility, Bryant’s

adjusted offense level would be 30, which combined with his criminal history

category of III would produce a guideline sentencing range of 121 to 151 months

imprisonment. Thus, if the two-level reduction for acceptance of responsibility

were granted, the 151-month sentence would not be at the bottom of the advisory

guideline range, but instead would be at the top of the guideline range. See United

       3
         Bryant also appears to argue on appeal, as he attempted to before the district court, that
he is entitled to an additional one-level reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1(b). As we explained in Wade, however, “[a] reduction under [§ 3E1.1(b)] may be
granted only on formal motion by the government at the time of sentencing.” 458 F.3d at 1282;
see § 3E1.1 cmt. n.6. Because the government did not make such a motion in this case, it was
not error, plain or otherwise, for the district court to deny an additional offense-level reduction
under § 3E1.1(b).


                                                 9
States v. Bennett, 472 F.3d 825, 834 (11th Cir. 2006) (holding that where “the

district court expressly indicated a desire to impose a sentence near the low end of

the sentencing Guidelines range,” but miscalculated the offense level such that the

sentence imposed was not near the low end of the correctly-calculated guideline

range, there was a reasonable probability that the district court would have

sentenced the defendant differently if it had correctly calculated his offense level);

see also United States v. Frazier, 605 F.3d 1271, 1282–83 (11th Cir. 2010)

(holding that the district court’s miscalculation of the defendant’s offense level

affected his substantial rights where the sentence imposed was at the high end of

the miscalculated guideline range, but would fall outside of the correctly-

calculated range).

      The government further argues that it’s not reasonably probable that, but for

this error, Bryant would have received the two-level reduction for acceptance of

responsibility. Again, we disagree. The PSR reveals no basis for denying Bryant

the two-level reduction other than his August 16, 2007 arrest. Neither has the

government pointed to any other reason for the court’s denial of the acceptance of

responsibility reduction for Bryant. To the contrary, the PSR—to which the

government filed no objections—makes clear that Bryant admitted the offense,




                                          10
expressed regret, and stated a desire to try to help stop the drug problem in his

community.

      We recognize “that plain error review should be exercised ‘sparingly,’ and

only ‘in those circumstances in which a miscarriage of justice would otherwise

result.’” Rodriguez, 398 F.3d at 1298 (quoting Jones, 527 U.S. at 389, 119 S. Ct.

at 2102; Olano, 507 U.S. at 736, 113 S. Ct. at 1779). As a consequence, plain

error review is not appropriate “where the effect of an error on the result in the

district court is uncertain or indeterminate.” Id. at 1301. But in this case the result

of the district court’s error is neither uncertain nor indeterminate. The guideline

range was calculated in a manner contrary to this Court’s precedent, which clearly

provided that Bryant should not have been denied a two-level reduction for

acceptance of responsibility. See Wade, 458 F.3d at 1281. Further, the district

court made clear that it imposed a sentence of 151 months imprisonment because

that was the lowest sentence within the advisory guideline range. This being the

case, we conclude that but for its error in denying Bryant the two-level reduction

for acceptance of responsibility, the district court would have imposed a sentence

of less than 151 months imprisonment.

      Accordingly, we VACATE Bryant’s sentence and REMAND the case to the

district court for resentencing in a manner consistent with this opinion.

                                          11
