     Case: 16-10431      Document: 00514322258         Page: 1    Date Filed: 01/25/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals

                                      No. 16-10431
                                                                               Fifth Circuit

                                                                             FILED
                                                                       January 25, 2018

UNITED STATES OF AMERICA,                                               Lyle W. Cayce
                                                                             Clerk
              Plaintiff - Appellee

v.

MARCUS LAVONDE HILL,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-242-1


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Marcus Lavonde Hill pleaded guilty to possession
of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). The district court
adopted the sentencing recommendation in the presentence investigation
report (“PSR”), including application of a base offense level calculated on the
basis of Hill’s prior conviction for a “controlled substance offense.” In an opinion
rendered in another case after Hill was sentenced, a panel of this court held


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 16-10431
that the statute underlying Hill’s prior conviction is not a controlled substance
offense under the United States Sentencing Guidelines (“Guidelines” or
“U.S.S.G.”). Hill now appeals his sentence, urging us to correct the resulting
error. We vacate Hill’s sentence and remand for resentencing.
                               I. FACTS AND PROCEEDINGS
       Hill pleaded guilty without a plea agreement to being a felon in
possession of a firearm. The probation officer prepared a PSR which noted that
Hill had previously been convicted of a felony controlled substance offense,
namely his 2000 Texas conviction for unlawful possession with the intent to
deliver cocaine, apparently in violation of TEX. HEALTH & SAFETY CODE ANN. §
481.112(a). 1 The PSR therefore applied U.S.S.G. § 2K2.1(a)(4)(A) and assigned
Hill a heightened base offense level of 20. 2 After applying a three-level
adjustment for acceptance of responsibility and calculating his criminal history
category as V, the PSR concluded that Hill’s Guidelines imprisonment range
was 46 to 57 months. Hill did not object to the PSR, and the district court
adopted it, sentencing Hill to 51 months of imprisonment and three years of
supervised release.
       Hill timely filed a notice of appeal. In his initial appellate brief, he
challenged the validity of the statute of conviction, 18 U.S.C. § 922(g)(1). After
he filed that brief, this court decided United States v. Tanksley, holding that a
conviction for “possess[ion] with intent to deliver a controlled substance” under
the above said Texas statute is not a “controlled substance offense” under the




       1  The documentation supporting Hill’s earlier conviction does not explicitly state that
Hill was convicted under § 481.112(a), but the parties agree that Hill was convicted for
violating § 481.112(a).
        2 U.S. SENTENCING GUIDELINES MANUAL § 2K2.1(a)(4)(A) (U.S. SENTENCING COMM’N

2015). The 2015 edition of the Guidelines was applicable in this case.
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                                       No. 16-10431
Guidelines. 3 We granted Hill’s motion to file a supplemental brief. In it, Hill
contends that, based on Tanksley, the district court erred by determining that
he had been convicted of a controlled substance offense, and urges us to correct
that mistake under the plain error doctrine.
                                       II. ANALYSIS
A. Sebelius
       Hill first asserts that the district court plainly erred by accepting the
factual basis offered in support of his guilty plea. He insists that the factual
basis, which stated that the firearm underlying his conviction was in or
affecting interstate commerce, was constitutionally inadequate based on the
Supreme Court’s decision in National Federation of Independent Business v.
Sebelius. 4 Hill acknowledges that this court’s prior jurisprudence forecloses his
assertion, but that he raises it only to preserve it for further review. In fact,
this court rejected that specific challenge to § 922(g)(1) in United States v.
Alcantar. 5 We are bound by this precedent, 6 so Hill’s Sebelius challenge fails.
B. Tanksley
       Hill next urges us to vacate his sentence based on Tanksley. The parties
agree that this challenge is reviewed for plain error because Hill did not raise
it in the district court. (Indeed, he could not have done so because Tanksley
was decided after Hill was convicted and sentenced.) Plain error review
requires Hill to demonstrate an error that was plain or obvious and that



       3 United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017), supplemented, 854 F.3d 284
(5th Cir. 2017). Tanksley concerned the “controlled substance offense” enhancement under
U.S.S.G. § 4B1.1, but this section uses the same definition of “controlled substance offense,”
defined in § 4B1.2(b), as the section applied to Hill. See id. at 349; U.S. SENTENCING
GUIDELINES MANUAL § 4B1.2(b), § 2K2.1 cmt. n.1 (U.S. SENTENCING COMM’N 2015).
       4 567 U.S. 519 (2012).
       5 733 F.3d 143, 145–46 (5th Cir. 2013).
       6 Id. at 145 (“[O]nly an intervening change in the law (such as by a Supreme Court

case) permits a subsequent panel to decline to follow a prior Fifth Circuit precedent.”).
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                                       No. 16-10431
affected his substantial rights. 7 On such a showing, we have discretion to
correct the error if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” 8 “[The court] do[es] not view the fourth
prong as automatic [even] if the other three prongs are met.” 9 Instead, “[t]he
fourth prong is meant to be applied on a case-specific and fact-intensive
basis.” 10
       The government does not contest that, in light of Tanksley, Hill has
satisfied the first three prongs of plain error: (1) there was error (2) which was
clear or obvious (3) that affected Hill’s substantial rights. 11 The government
nevertheless argues that we should affirm Hill’s sentence because he has failed
to establish that his case merits our exercise of discretion to correct the error.
But Hill points out that, absent the error, the correct guidelines range would
be 27 to 33 months; 12 his 51-month sentence was thus 18 months longer than
the high end of the correct range.
       This court has previously held that a “substantial disparity between the
imposed sentence and the applicable Guidelines range warrants the exercise


       7   United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc).
       8   Id. (alteration in original) (quoting Puckett v. United States, 556 U.S. 129, 135
(2009)).
       9 Id. at 425 (citing United States v. Davis, 602 F.3d 643, 650 (5th Cir. 2010)).
       10 Puckett, 556 U.S. at 142.
       11 The Government states that “Hill may satisfy the second prong[,]” and that the error

“presumably satisf[ies] the third prong[.]” (emphasis added). Yet the Government presents
no argument to the contrary, and acknowledges this court’s precedents which support Hill’s
arguments that the prongs are met. The Government has accordingly forfeited any such
argument. See Coleman v. Lincoln Par. Det. Ctr., 858 F.3d 307, 309 (5th Cir. 2017) (per
curiam); see also United States v. Cabrera, 478 F. App’x 204, 208 n.4 (5th Cir. 2012) (per
curiam) (“The Government forfeited this argument by failing to brief it.” (citing Yohey v.
Collins, 985 F.2d 222, 224–25 (5th Cir. 1993))).
       12 U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A (U.S. SENTENCING COMM’N

2015). Without a prior conviction for a controlled substance offense, Hill’s offense level would
have been 12, which includes a two-level reduction for acceptance of responsibility. U.S.
SENTENCING GUIDELINES MANUAL §§ 2K2.1(a)(6), 3E1.1(a) (U.S. SENTENCING COMM’N
2015). Because his base offense level would have been reduced below 16, Hill would not have
been eligible for the third level of reduction under U.S.S.G. § 3E1.1(b).
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of [the court’s] discretion to correct the error.” 13 Hill cites a number of cases
with similar disparities in which this court found that the fourth prong was
met, 14 including one disparity of precisely the same length: 18 months. 15
       A recent unpublished case from this court is persuasive. In United States
v. Crenshaw, this court chose to exercise its discretion to correct an error
identical to the one presented in the instant case. 16 Crenshaw pleaded guilty
to the same offense as Hill and similarly received an enhanced base offense
level for a controlled substance offense based on a prior conviction under the
same Texas statute, making Crenshaw’s sentence erroneous under Tanksley. 17
Crenshaw’s resulting sentencing disparity was 24 months. 18 On appeal, this
court exercised its discretion, rejecting the government’s contention that
Crenshaw’s history of criminal activity was a reason to decline to do so. 19 That
same contention is unpersuasive here, especially in light of the fact that the
district court expressly rejected Hill’s past recidivism as a reason to impose a
higher sentence: “I don’t disagree with what [the prosecutor] said about the
defendant’s history, but I think it’s adequately reflected by the guideline
criminal history category.”




       13 United States v. Mudekunye, 646 F.3d 281, 291 (5th Cir. 2011) (per curiam).
       14 United States v. Martinez-Rodriguez, 821 F.3d 659, 665–67 (5th Cir. 2016) (36-
month disparity); Mudekunye, 646 F.3d at 290–91 (19-month disparity); United States v.
John, 597 F.3d 263, 286–89 (5th Cir. 2010) (21-month disparity); see also United States v.
Blanton, 684 F. App’x 397, 400 (5th Cir. 2017) (per curiam) (collecting cases). But see United
States v. Wikkerink, 841 F.3d 327, 337, 339 (5th Cir. 2016) (declining to correct 180-month
disparity when district judge stated it was uncertain whether guidelines “correctly captured
the nature and extent of the [defendant’s] behavior”); United States v. Ellis, 564 F.3d 370,
370, 371 n.2, 378–79 (5th Cir. 2009) (explaining in dicta that the court would decline to correct
63-month disparity).
       15 United States v. Price, 516 F.3d 285, 289–90 (5th Cir. 2008).
       16 703 F. App’x 308, 312 (5th Cir. 2017) (per curiam).
       17 Id. at 311.
       18 Id.
       19 Id. at 312.

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                                  No. 16-10431
      The government also contends that Hill’s particular conduct would be
characterized as a controlled substance offense, even if the statute of conviction
would not. Again, we think such an argument is more appropriate for
consideration first by the district court on resentencing. In light of the
particular facts of Hill’s case and the degree of sentencing error, we choose to
exercise our discretion by vacating Hill’s sentence and remanding for
resentencing in light of the foregoing analysis.
                                III. CONCLUSION
      We VACATE Hill’s sentence and REMAND for resentencing.




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