           Case: 12-14139    Date Filed: 04/10/2013   Page: 1 of 6


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-14139
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:10-cr-00054-RH-CAS-9

UNITED STATES OF AMERICA,

                      Plaintiff - Appellee,


versus

CHRIS RANSOM,

                      Defendant - Appellant.


                       ________________________

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

                              (April 10, 2013)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
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      Chris Ransom appeals his sentence of 188 months’ imprisonment for

conspiracy to possess with intent to distribute more than 50 kilograms but less than

100 kilograms of marijuana and cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(C)

and 851. Ransom challenges his classification as a career offender, arguing that

one of his predicate offenses, a 2001 conviction for the sale of cocaine in 2000 (the

“2000 cocaine sale”), does not qualify because it was part of the same conspiracy

charged in the instant case and is therefore relevant conduct to the instant offense.

The government responds that the 2000 cocaine sale is not relevant conduct

because the indictment charged a conspiracy lasting from 2007 to 2010. Upon

review of the record and consideration of the parties’ briefs, we affirm.

      “We review the district court’s findings of fact for clear error and its

application of the Sentencing Guidelines de novo.” United States v. Newman, 614

F.3d 1232, 1235 (11th Cir. 2010). The district court’s decision to classify a

defendant as a career offender is a question of law that is reviewed de novo.

United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir. 2006). The government

bears the burden of proof for establishing that a sentencing enhancement, such as a

career offender classification, is proper. United States v. Young, 527 F.3d 1274,

1277 (11th Cir. 2008) (per curiam). We are bound by the commentary to the

Sentencing Guidelines that interprets or explains a guideline unless it violates the

Constitution or a federal statute, is inconsistent with the guideline’s statutory text,


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or is a plainly erroneous reading of the Guidelines. United States v. Wright, 607

F.3d 708, 712 (11th Cir. 2010).

      A defendant is classified as a career offender if: (1) he or she is at least 18

years old at the time of the instant offense; (2) the instant offense “is a felony that

is either a crime of violence or a controlled substance offense”; and (3) he or she

has “at least two prior felony convictions of either a crime of violence or a

controlled substance offense.” U.S.S.G. § 4B1.1(a). The phrase “two prior felony

convictions” requires that the sentences “are counted separately under the

provisions of § 4A1.1(a), (b), or (c).” Id. § 4B1.2(c). Section 4A1.2 controls

whether prior sentences are counted separately under 4A1.1. Id. § 4A1.1, cmt. n.5.

“Prior sentence” is defined as “a sentence imposed prior to sentencing on the

instant offense, other than a sentence for conduct that is part of the instant

offense.” Id. § 4A1.2, cmt. n.1. “Conduct that is part of the instant offense” means

relevant conduct as defined in U.S.S.G. § 1B1.3. Id. Therefore, a prior felony

conviction cannot be used for determining career offender status if it is relevant

conduct under § 1B1.3.

      Section 1B1.3(a) of the Sentencing Guidelines defines relevant conduct as:

      (1) (A) all acts and omissions committed, aided, abetted,
      counseled, commanded, induced, procured, or willfully caused by the
      defendant; and




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             (B) in the case of a jointly undertaken criminal activity . . . all
      reasonably foreseeable acts and omissions of others in furtherance of
      the jointly undertaken criminal activity,

      that occurred during the commission of the offense of conviction, in
      preparation for that offense, or in the course of attempting to avoid
      detection or responsibility for that offense;

      (2) solely with respect to offenses of a character for which § 3D1.2(d)
      would require grouping of multiple counts, all acts and omissions
      described in subdivisions (1)(A) and (1)(B) above that were part of
      the same course of conduct or common scheme or plan as the offense
      of conviction . . . .

U.S.S.G. § 1B1.3(a)(1)–(2) (emphasis added). Application Note 8 to § 1B1.3

provides,

      [f]or the purposes of subsection (a)(2), offense conduct associated
      with a sentence that was imposed prior to the acts or omissions
      constituting the instant federal offense (the offense of conviction) is
      not considered as part of the same course of conduct or common
      scheme or plan as the offense of conviction.

Id. § 1B1.3, cmt. n.8.

      Here, as a preliminary matter, Ransom has abandoned the argument that his

2000 cocaine sale may qualify as relevant conduct under § 1B1.3(a)(1), the “during

commission of the offense” prong of the relevant conduct test. See United States v.

Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (holding issues not briefed

“plainly and prominently” on appeal “will be considered abandoned”). Therefore,

the only issue we need address is whether Ransom’s 2000 cocaine sale qualifies as




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relevant conduct under § 1B1.3(a)(2), the “course of conduct or common scheme

or plan” prong.

      Ransom has not shown that the district court erred in classifying him as a

career offender. If the 2000 cocaine sale is relevant conduct under § 1B1.3(a)(2),

the 2000 cocaine sale cannot be a predicate conviction for career offender status; if

it is not relevant conduct, then the offense is a predicate conviction. The district

court stated “[H]ere, the 2000 conduct was, at least as shown by this record, part of

the same course of conduct or at least done under a common scheme or plan,” but

nevertheless concluded that Application Note 8 barred the 2000 cocaine sale from

being considered relevant conduct under § 1B1.3(a)(2). Based on the evidence

introduced at the sentencing hearing, the district court did not clearly err in finding

by a preponderance of the evidence that the 2000 cocaine sale was part of the same

course of conduct or done under a common scheme or plan as the instant offense.

Except for Application Note 8, then, the 2000 cocaine sale would be relevant

conduct to the instant offense.

      The district court correctly concluded, though, that Application Note 8

excluded the 2000 cocaine sale from being relevant conduct. Application Note 8

specifically precludes consideration of “offense conduct associated with a sentence

that was imposed prior to the acts or omissions constituting the instant federal

offense (the offense of conviction).” U.S.S.G. § 1B1.3, cmt. n.8 (emphasis added).


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The terms “offense conduct” and “offense of conviction,” as used in the

Guidelines, have distinct meanings. We have explained:

      When referring to an offense, the guidelines use two similar terms:
      offense conduct and offense of conviction. The term offense conduct
      refers to the totality of the criminal transaction in which the defendant
      participated and which gave rise to his indictment, without regard to
      the particular crimes charged in the indictment. The term offense of
      conviction is narrower in scope, referring only to the conduct charged
      in the indictment for which the defendant was convicted.

United States v. Ignancio Munio, 909 F.2d 436, 438 n.2 (11th Cir. 1990) (per

curiam) (internal quotation marks omitted).

      Thus, Application Note 8 provides a narrow exception to relevant conduct

for that portion of the entire criminal transaction for which a sentence was imposed

before the conduct charged in the indictment. Applying this definition to

Ransom’s case, the sentence for the 2000 cocaine sale was imposed before the

“acts or omissions constituting the instant federal offense (the offense of

conviction),” because the indictment charged a conspiracy that took place between

2007 and 2010. Hence, the 2000 cocaine sale is precluded from consideration as

relevant conduct under § 1B1.3(a)(2), and was properly considered a predicate

offense for purposes of the career offender enhancement. Accordingly, the district

court’s application of the Sentencing Guidelines was proper, and we affirm.

      AFFIRMED.




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