                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-14165                ELEVENTH CIRCUIT
                                                             OCTOBER 6, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                  D. C. Docket No. 08-00195-CR-J-25-HTS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JABARI HIRD,

                                                          Defendant-Appellant.


                        ________________________

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

                              (October 6, 2010)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

     Jabari Hird appeals his 410-month sentence imposed for bank robbery,
conspiracy to commit bank robbery, and using a firearm in the course of a robbery.

He argues that the sentence is unreasonable because the district court improperly

calculated his guideline range on Count Three (brandishing a firearm during a

crime of violence) by imposing a 410-month concurrent sentence on that count

instead of the statutory mandatory minimum sentence of 84 months. He also

argues that the district court erred by failing to grant him a downward departure of

one level in his criminal history category, under the United States Sentencing

Guidelines § 4A1.3(b) (Nov. 2008), from level VI to level V, because many of his

prior offenses were minor driver’s license violations. After review, we conclude

that Hird’s sentence was based on a procedural error and must be vacated and

remanded for resentencing.

                                          I.

      We review sentencing decisions for abuse of discretion, using a two-step

process. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). First, we

ensure the district court committed no significant procedural error, such as

improperly calculating the Guidelines range. Id. (citing Gall v. United States, 552

U.S. 38, 51, 128 S. Ct. 586, 597 (2007)). If the sentence is procedurally sound, we

then review the substantive reasonableness of the sentence, taking into account

“the totality of the circumstances, including ‘the extent of any variance from the



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Guidelines range.’” Id. (quoting Gall, 552 U.S. at 51, 128 S. Ct. at 597).

       Under § 2K2.4(b) of the Guidelines Manual, applying to convictions under

18 U.S.C. § 924(c), “the guideline sentence is the minimum term of imprisonment

required by statute.” However, if the defendant is sentenced as a career offender

under § 4B1.1, the guideline range is determined under that section.1 U.S.S.G.

§ 2K2.4(c).

       In this case, the district court appropriately sentenced Hird as a career

offender, and therefore properly looked to § 4B1.1 to determine Hird’s guideline

range. The district court plainly erred, however, by determining Hird’s guideline

range under § 4B1.1(b), rather than § 4B1.1(c), which applies to career offenders

convicted of violating § 924(c). The Guidelines Manual provides that “[i]f the

defendant (1) was convicted of violating section 924(c) . . . ; and (2) as a result of

that conviction (alone or in addition to another offense of conviction), is


       1
         Although it does not impact this appeal, we note that the district court improperly
applied a five-level enhancement for brandishing a firearm in calculating Hird’s offense level for
the armed robbery. The Guidelines Manual specifically states that where a defendant is also
sentenced under § 924(c), the sentencing court should not apply any specific offense
characteristic for use of a firearm. See U.S.S.G. Manual § 2K2.4 cmt. n.4 (“If a sentence under
this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply
any specific offense characteristic for possession, brandishing, use, or discharge of an explosive
or firearm when determining the sentence for the underlying offense.”); see also United States v.
Brown, 332 F.3d 1341, 1345 (11th Cir. 2003); United States v. Diaz, 248 F.3d 1065, 1106–07
(11th Cir. 2001). Hird’s adjusted offense level for the armed robbery offense therefore should
have been 24, not 29. This error had no impact on his ultimate sentence, however, because of
Hird’s status as a career offender.


                                                3
determined to be a career offender under § 4B1.1 (Career Offender), the guideline

sentence shall be determined under § 4B1.1(c).” U.S.S.G. § 2K2.4(c). Section

4B1.1(c), in turn, provides:

      If the defendant is convicted of 18 U.S.C. § 924(c) . . . , and the
      defendant is determined to be a career offender under subsection (a),
      the applicable guideline range shall be determined as follows:

      (1) If the only count of conviction is 18 U.S.C. § 924(c) . . . , the
      applicable guideline range shall be determined using the table in
      subsection (c)(3).

      (2) In the case of multiple counts of conviction in which at least one
      of the counts is a conviction other than a conviction for 18 U.S.C. §
      924(c) . . . , the guideline range shall be the greater of—

      (A) the guideline range that results by adding the mandatory minimum
      consecutive penalty required by the 18 U.S.C. § 924(c) . . . count(s) to
      the minimum and the maximum of the otherwise applicable guideline
      range determined for the count(s) of conviction other than the 18
      U.S.C. § 924(c) . . . count(s); and

      (B) the guideline range determined using the table in subsection
      (c)(3).

For purposes of subsection (c)(2)(A), the “otherwise applicable guideline range” is

calculated differently depending on whether the counts of conviction, other than

the § 924(c) count, qualify the defendant as a career offender. See U.S.S.G.

§ 4B1.1 cmt. n.3(C). If they do, the “otherwise applicable guideline range” is the




                                           4
range for those counts determined using § 4B1.1(a) and (b);2 if they do not, then

the “otherwise applicable guideline range” is the range determined by applying the

offense level derived from Chapters Two and Three for those counts in

combination with the appropriate criminal history category. See id.

       Hird’s conviction involved multiple counts. Therefore, the district court

should have determined his guideline range using the steps outlined in

§ 4B1.1(c)(2). Specifically, the district court should have calculated the range for

the one of Hird’s two other offenses carrying the greatest statutory maximum

sentence. See U.S.S.G. § 4B1.1 cmts. 2 and 3(C)(ii). Here, the armed robbery

offense carries a 25-year statutory maximum, which under the § 4B1.1(b) table

yields an offense level of 34. He received a two-level adjustment for acceptance of

responsibility, so his offense level is adjusted to 32, which caries a guideline range

of 210 to 262 months. The statutory minimum of 84 months for the § 924(c)

violation3 is then added to the upper and lower end of this range, which yields a

total range of 294 to 346 months. See U.S.S.G. § 4B1.1(c)(2)(A).

       The district court was required to compare the 294 to 346 month range with

       2
         The Guidelines Manual instructs that the “otherwise applicable guideline range” is
determined based on “the count(s) of conviction other than the 18 U.S.C. § 924(c) . . . count(s).”
U.S.S.G. § 4B1.1 cmt. n.3(C). Thus, the guidelines make clear that the statutory maximum for
the § 924(c) count cannot be used to determine the offense level using the 4B1.1(b) table.
       3
        The statutory minimum for Hird’s § 924(c) conviction is 84 months because Hird
brandished the firearm. See 18 U.S.C. § 924(c)(1)(A)(ii).

                                                 5
the range for the § 924(c) offense as described in § 4B1.1(c)(3). See U.S.S.G. §

4B1.1(c)(2) and (c)(2)(B). Because Hird received a two-level adjustment for

acceptance of responsibility, the range under this calculation is 292 to 365 months

imprisonment. See § 4B1.1(c)(3). After calculating the two ranges under §

4B1.1(c)(2)(A) and (B), the range applicable to Hird “shall be the greater of” the

two, which is described in the commentary as “the guideline range with the highest

minimum term of imprisonment.” U.S.S.G. § 4B1.1 cmt. 3(B). Because the

highest minimum term of imprisonment is the range calculated under

§ 4B1.1(c)(2)(A), Hird’s properly calculated guideline range should have been 294

to 346 months imprisonment. The example provided in the commentary further

supports this method for calculating Hird’s guideline range. See U.S.S.G. § 4B1.1

cmt. 3(E).

      The district court thus failed to properly calculate Hird’s guideline range

under § 4B1.1(c). The result was the determination that Hird’s guideline range

was 376 to 449, substantially in excess of the properly calculated guideline range

of 294 to 346 months. This error renders the district court’s sentence procedurally

unreasonable, and therefore an abuse of discretion. See United States v. Bonilla,

579 F.3d 1233, 1245 (11th Cir. 2009) (explaining that a “sentence may be

procedurally unreasonable and therefore an abuse of discretion if the court



                                          6
commits a significant procedural error such as failing to consider the Guidelines or

miscalculating the Guideline range”).

                                                II.

       In his brief on appeal, Hird argued that the district incorrectly applied the

guidelines to his multiple counts of conviction. Specifically, he alleges that the

guidelines clearly require the district court to base the appropriate guideline range

for the offense conduct on the counts other than the conviction for the § 924(c)

conviction. To lower and upper ends of this range, he argues, the court should then

have added 84 months to reflect the mandatory minimum sentence for the § 924(c)

conviction. We agree with Hird that it is abundantly clear that the district court

committed a procedural error by incorrectly applying the guidelines to the § 924(c)

offense.4 The problem for Hird, however, is that he raises this issue for the first

time on appeal.

       Litigants are generally required to raise an error below in order to preserve

it. Puckett v. United States, ---U.S.----, 129 S. Ct. 1423, 1428 (2009). We are

greatly limited in our ability to correct errors in judicial proceedings that have not

been raised below. Id. However, this rule is not without exception. Silber v.


       4
        Like the district court, however, Hird also misinterprets the clear language of the
guidelines, and thus comes to the wrong conclusion about what his proper guidelines range
should have been. However, it is clear that he has properly identified the nature of the error the
court made.

                                                 7
United States, 370 U.S. 717, 717–18, 82 S. Ct. 1287, 1288 (1962). Reviewing

courts do have “‘the power to notice a “plain error” though it is not assigned or

specified.’” Id. (quoting United Bhd. of Carpenters v. United States, 330 U.S. 395,

412, 67 S. Ct. 775, 784 (1947)). Plain errors may be considered, in the discretion

of the appellate court, even though they have not been raised below by the parties.

Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may be

considered even though it was not brought to the court’s attention.”); see also

United States v. Olano, 507 U.S. 725, 735, 113 S. Ct. 1770, 1778 (1993) (noting

that the rule is permissive, not mandatory). This rule gives this Court “limited

power to correct errors that were forfeited because not timely raised in district

court.” Olano, 507 U.S. at 731, 113 S. Ct. at 1776.

      We may reverse a sentence on the basis of an error not objected to if the

error is 1) plain, and 2) affects substantial rights. United States v. Antonietti, 86

F.3d 206, 208–09 (11th Cir. 1996). Our discretion to use Rule 52(b) should be

limited to instances where a miscarriage of justice would result were we not to act,

and where the district court’s error “seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.” Olano, 507 U.S. at 736, 113 S. Ct. at

1779 (internal quotation marks omitted).

      The error here is plain, as the district court clearly miscalculated the



                                            8
advisory guideline range applicable to Hird’s offenses. The error affected Hird’s

substantial rights because the improperly calculated guideline range of 376 to 449

months is considerably higher than the correct range of 294 to 346 months. While

the district court would have had discretion to impose a reasonable upward

departure or variation, here the court expressed the understanding that it was giving

Hird a mid-guideline range sentence. Our review of the record leaves us with no

reason to doubt that it was the court’s intention to sentence Hird within the

properly calculated guideline range. We will not assume that the district court

would have imposed a 410-month sentence even if the guidelines had been

properly calculated. “Clearly, substantial rights are affected if [the defendant’s]

sentence is longer than it should have been . . . .” DeRoo v. United States,223 F.3d

919, 926 (8th Cir. 2000); see also United States v. John, 597 F.3d 263, 284–85 (5th

Cir. 2010) (“A sentencing error affects a defendant’s substantial rights if he can

show a reasonable probability that, but for the district court’s misapplication of the

Guidelines, [he] would have received a lesser sentence.” (alteration in original)

(quotation marks and citation omitted)).

      Hird’s sentence is VACATED and REMANDED for resentencing consistent

with this opinion.




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