           Case: 16-11753   Date Filed: 12/07/2016   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-11753
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:07-cr-00205-RAL-EAJ-1



UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                versus

GREGORY LAMONT RANDALL,

                                                      Defendant-Appellant.

                      ________________________

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

                            (December 7, 2016)

Before JULIE CARNES, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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         Gregory Randall appeals his 60-month imprisonment sentence, imposed

upon revocation of supervised release. On appeal, Randall argues, and the

government concedes, that the district court erred because it imposed a sentence

that was above the statutory maximum. Randall was originally convicted of being

a felon in possession of a firearm, and he received an enhanced sentence under the

Armed Career Criminal Act (“ACCA”). However, he filed a habeas corpus

petition that successfully challenged his ACCA enhancement, which resulted in his

re-sentencing and changed his underlying conviction from a Class A felony to a

Class C felony. Therefore, the district court was limited to a maximum revocation

sentence of two years’ imprisonment. He argues on appeal that the U.S. Probation

Office, and by extension, the district court, mistakenly relied on the presentence

investigation report from his original sentencing, which showed that his offense

was a Class A felony, to state that the statutory maximum upon revocation was five

years.

         We review for plain error an argument that is raised for the first time on

appeal. United States v. Pantle, 637 F.3d 1172, 1174 (11th Cir. 2011). Under

plain error review, we may correct an error where: (1) an error occurred; (2) the

error was plain; (3) the error affects substantial rights; and (4) the error seriously

affected the fairness of the judicial proceedings. United States v. Gresham, 325

F.3d 1262, 1265 (11th Cir. 2003).


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      An individual who is convicted of being a felon in possession of a firearm,

and who is not subject to an ACCA-enhanced sentence, is subject to a maximum

penalty of 10 years’ imprisonment. See 18 U.S.C. § 924(a)(2), (e)(1); see also 18

U.S.C. § 922(g)(1). A crime punishable by up to 10 years’ imprisonment is a Class

C felony. 18 U.S.C. § 3559(a)(3).

      The permissible terms of imprisonment following a revocation of supervised

release are set out in 18 U.S.C. § 3583(e). See 18 U.S.C. § 3583(e). Under

§ 3583(e), the district court may revoke a term of supervised release and require

that the defendant serve in prison all or part of the term of supervised release if the

district court finds by a preponderance of the evidence that the defendant violated a

condition of supervised release, except that:

      a defendant whose term is revoked under this paragraph may not be
      required to serve on any such revocation more than 5 years in prison if
      the offense that resulted in the term of supervised release is a Class A
      felony, more than 3 years in prison if such offense is a class B felony,
      more than 2 years in prison if such offense is a class C or D felony, or
      more than one year in any other case.

Id. § 3853(e)(3). A sentence that exceeds the statutory maximum is plain error.

United States v. Eldick, 393 F.3d 1354, 1354 n.1 (11th Cir. 2004).

      The district court plainly erred when it sentenced Randall to a 60-month

imprisonment term for violating the conditions of his supervised release. Randall’s

underlying offense, after re-sentencing, was a Class C felony. 18 U.S.C.

§3559(a)(3); 18 U.S.C. § 922(g)(1). Therefore, the maximum imprisonment term

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the district court was authorized to impose for Randall’s supervised release

violation was two years. 18 U.S.C. § 3583(e)(3). Moreover, because the court

imposed an illegal imprisonment term, the district court’s plain error seriously

affected Randall’s substantial rights and the fairness of his sentencing proceedings.

See Gresham, 325 F.3d at 1265. Accordingly, we vacate Randall’s sentence and

remand for resentencing.

      VACATED AND REMANDED.




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