           Case: 16-16458   Date Filed: 07/19/2017   Page: 1 of 11


                                                               [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 16-16458
                        ________________________

                D.C. Docket No. 4:09-cr-00063-RH-CAS-1



UNITED STATES OF AMERICA,

                                                        Plaintiff - Appellee,


                                  versus


WILLIE J. BURKE, JR.,

                                                        Defendant - Appellant.

                        ________________________

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

                              (July 19, 2017)

Before ED CARNES, Chief Judge, WILLIAM PRYOR and DUBINA, Circuit
Judges.

WILLIAM PRYOR, Circuit Judge:
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      We must decide whether the term “prior sentence,” United States Sentencing

Guidelines Manual § 4A1.1(a) (Nov. 2015), includes a state sentence imposed after

a defendant’s initial federal sentence but before the district court vacated that

sentence and resentenced him. Willie Burke Jr. pleaded guilty to being a felon in

possession of a firearm, 18 U.S.C. § 922(g), and an armed career criminal, id.

§ 924(e), and was sentenced in 2010. In 2011, a Florida court sentenced him for

attempted armed robbery, armed robbery, and kidnapping to facilitate a felony or

terrorize with a firearm. In 2016, the district court vacated Burke’s federal

sentence, 28 U.S.C. § 2255, and conducted a full resentencing. The district court

added three criminal history points for Burke’s 2011 Florida sentence because it

was a “prior sentence” when the district court resentenced him, U.S.S.G.

§ 4A1.1(a). Burke now challenges that calculation. But we agree with the district

court that, when a court vacates a sentence, that sentence “becomes void in its

entirety,” United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996), so the term

“prior sentence” includes a state sentence imposed before resentencing. Burke also

asks us to vacate his sentence on the ground that another of his prior convictions,

for Florida armed robbery in 1999, is not a “crime of violence,” U.S.S.G.

§ 2K2.1(a)(4)(A), but our precedent forecloses this argument. We affirm.

                                I.   BACKGROUND




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      In October 2009, a federal grand jury indicted Willie Burke for being a felon

in possession of a firearm and an armed career criminal, 18 U.S.C.

§§ 922(g), 924(e). Burke pleaded guilty in 2010. The presentence investigation

report determined that Burke was an armed career criminal based on three prior

felony convictions: (1) a 1999 Florida conviction for burglary of a structure and

grand theft from a retail merchant; (2) a 1999 Florida conviction for burglary of a

dwelling and grand theft; and (3) a 1999 Florida conviction for armed robbery. The

district court imposed the statutory minimum sentence of 180 months

imprisonment followed by three years of supervised release.

      In 2016, Burke moved to vacate his sentence, 28 U.S.C. § 2255. He argued

that the decision in Johnson v. United States, 135 S. Ct. 2551, 2563 (2015), later

made retroactive in Welch v. United States, 136 S. Ct. 1257, 1268 (2016), required

vacatur of his sentence and resentencing. The government agreed, and the district

court ordered a “full resentencing.”

      The probation office prepared a revised presentence investigation report.

The report calculated a base offense level of 20 because Burke had previously been

convicted of one “crime of violence,” Florida armed robbery in 1999, U.S.S.G.

§ 2K2.1(a)(4)(A). The report then applied a three-level reduction for acceptance of

responsibility, id. § 3E1.1(a), to arrive at a total offense level of 17. The report also

gave Burke ten criminal history points to arrive at a criminal history category of V.


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Three of those criminal history points pertained to Burke’s 2011 Florida

convictions for three counts of attempted armed robbery, nine counts of armed

robbery with a firearm, and twelve counts of kidnapping to facilitate a felony or

terrorize with a firearm. These convictions occurred after his initial sentencing.

The revised report recommended a term of imprisonment of 46 to 57 months.

      Burke objected to the report on two grounds. First, Burke argued that the

report impermissibly added three criminal history points for his 2011 Florida

conviction. He explained that, because “judgment and sentence” for the 2011

conviction was imposed “a year after the initial sentencing in this case,” the 2011

conviction “cannot be considered a ‘prior sentence’ as th[at] term is defined in”

section 4A1.2(a) of the Guidelines. Second, he argued that his 1999 conviction for

Florida armed robbery is not a “crime of violence” for purposes of section

2K2.1(a)(4), although he acknowledged binding precedent to the contrary, United

States v. Lockley, 632 F.3d 1238, 1245–46 (11th Cir. 2011).

      The district court overruled both objections at Burke’s sentencing hearing.

The district court ruled that a prior sentence includes any unrelated sentence

imposed before resentencing because “[t]he point of the criminal history

calculation is to figure out what kind of criminal record the defendant has. . . . And

so you take into account convictions prior to the time of sentencing.” The district

court also ruled that Florida armed robbery is a crime of violence. The district


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court sentenced Burke to 57 months imprisonment to be served consecutively to

his state sentences.

                         II.   STANDARD OF REVIEW

      We review de novo “a district court’s interpretation of the Sentencing

Guidelines.” United States v. Coast, 602 F.3d 1222, 1223 n.1 (11th Cir. 2010). We

also “review de novo whether a prior conviction qualifies as a ‘crime of violence’

under the Sentencing Guidelines.” Lockley, 632 F.3d at 1240.

                               III.   DISCUSSION

      Burke argues that the district court erred when it added three points to his

criminal history category for his 2011 sentence entered by the Florida court

because that state sentence was imposed after his initial federal sentencing and, as

a result, is not a “prior sentence” under the Sentencing Guidelines, U.S.S.G.

§ 4A1.1(a). We disagree. Because Burke moved to vacate his federal sentence and

was granted relief in 2016, his 2011 state sentence is a prior sentence.

      “To properly interpret the Sentencing Guidelines, we begin with the

language of the Guidelines, considering both the Guidelines and the commentary.”

United States v. Fulford, 662 F.3d 1174, 1177 (11th Cir. 2011) (quoting United

States v. Panfil, 338 F.3d 1299, 1302 (11th Cir. 2003)). “The language of the

Sentencing Guidelines, like the language of a statute, must be given its plain and

ordinary meaning because as with Congress, we presume that the Sentencing


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Commission said what it meant and meant what it said.” Id. (alteration adopted)

(citations and internal quotation marks omitted). “The guidelines commentary is

authoritative unless it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that guideline.” Id. (internal

quotation marks omitted) (quoting United States v. Jordi, 418 F.3d 1212, 1216

(11th Cir. 2005)).

       To calculate a defendant’s criminal history category, a district court must

“[a]dd 3 points for each prior sentence of imprisonment exceeding one year and

one month.” U.S.S.G. § 4A1.1(a) (emphasis added). The Guidelines define the

term “prior sentence” as “any sentence previously imposed upon adjudication of

guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part

of the instant offense.” Id. § 4A1.2(a)(1). The first comment to section 4A1.2(a)

clarifies this definition:

       “Prior sentence” means a sentence imposed prior to sentencing on the
       instant offense, other than a sentence for conduct that is part of the
       instant offense. A sentence imposed after the defendant’s
       commencement of the instant offense, but prior to sentencing on the
       instant offense, is a prior sentence if it was for conduct other than
       conduct that was part of the instant offense.

Id. § 4A1.2 cmt. 1 (emphasis added) (internal citation omitted). The question we

must decide “is ‘prior’ to what, the original sentence or the resentencing

sentence?” United States v. Ticchiarelli, 171 F.3d 24, 35 (1st Cir. 1999).



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      The circuits are split on this question. The Eighth and Ninth Circuits have

held that when a defendant’s initial sentence is vacated, a sentencing court shall

add criminal history points for any unrelated sentences imposed after the initial

sentencing but before resentencing. United States v. Tidwell, 827 F.3d 761, 764

(8th Cir. 2016) (“At that time, Tidwell’s [intervening] conviction was plainly a

‘prior sentence,’ that is, ‘a sentence imposed prior to sentencing on the instant

offense.’” (quoting U.S.S.G. § 4A1.2 cmt. 1); United States v. Klump, 57 F.3d 801,

803 (9th Cir. 1995) (“[T]he general rule that resentencing is de novo applies and

the court correctly found that the state sentence was a ‘prior sentence.’”). The First

Circuit, in contrast, has held that “the most sensible reading is that the

[G]uidelines’ reference to ‘prior sentence’ means, in this context, a sentence which

is prior to the original sentence which was vacated and remanded only for

resentencing.” Ticchiarelli, 171 F.3d at 35. The First Circuit based its decision on

its mandate rule, which limits resentencing on remand to only those portions of the

sentence subject to the mandate of the First Circuit. Unlike our Court, the First

Circuit “does not permit de novo resentencing as to all aspects of a sentence when

a sentence has been vacated.” Id. (emphasis added).

      The text of section 4A1.2(a), its related commentary, and our precedents

compel us to agree with the Eighth and Ninth Circuits. The phrase “sentencing on

the instant offense,” § 4A1.2 cmt. 1, refers to the sentencing that occurs after a


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court vacates an initial sentence because when a court in our circuit vacates a

sentence it “becomes void in its entirety.” United States v. Stinson, 97 F.3d 466,

469 (11th Cir. 1996). After vacatur, the original sentencing has “no validity or

effect,” Void, Black’s Law Dictionary (10th ed. 2014). “[T]he [vacated] sentence—

including any enhancements—[is] . . . ‘wholly nullified and the slate [is] wiped

clean.’” Stinson, 97 F.3d at 469 (quoting United States v. Cochran, 883 F.3d 1012,

1017 (11th Cir. 1989)). As a result, a district court may “reconstruct the sentence

utilizing any of the sentence components.” Id. That a vacated sentence is void and

resentencing occurs de novo establishes that a “prior sentence” under section

4A1.1(a) is any sentence imposed before resentencing. See United States v.

Martinez, 606 F.3d 1303, 1304 (11th Cir. 2010) (“[W]e have often held that a

general vacatur . . . allows for resentencing de novo.” (citation omitted)). We must

reject the reasoning of Ticchiarelli. Unlike the effect of vacatur in the First Circuit,

Ticchiarelli, 171 F.3d at 35 (“[Vacatur and remand] does not permit de novo

resentencing as to all aspects of a sentence. . . .”), vacatur in our Circuit wipes the

slate clean, Stinson, 97 F.3d at 469. And that clean slate requires a district court to

consider pre-vacatur sentences because a district court conducts a resentencing as

if no initial sentencing ever occurred.

      The order of crimes does not affect whether a sentence is a prior sentence.

The application notes for section 4A1.2(a) make clear that it is the sequence of


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sentences not the sequence of crimes that matters. See § 4A1.2 cmt. 1 (“A sentence

imposed after the defendant’s commencement of the instant offense, but prior to

sentencing on the instant offense, is a prior sentence. . . .”). We and our sister

circuits have long recognized this rule of sentencing sequence. United States v.

Walker, 912 F.2d 1365, 1366 (11th Cir. 1990); see also United States v. Lopez, 349

F.3d 39, 41 (2d Cir. 2003); United States v. Flowers, 995 F.2d 315, 317 (1st Cir.

1993); United States v. Beddow, 957 F.2d 1330, 1337 (6th Cir. 1992); United

States v. Tabaka, 982 F.2d 100, 102 (3d Cir. 1992); United States v. Walling, 936

F.2d 469, 471 (10th Cir. 1991) holding modified by United States v. Torres, 182

F.3d 1156 (10th Cir. 1999); United States v. Hoy, 932 F.2d 1343, 1345 (9th Cir.

1991).

      Burke argues that other provisions of the Guidelines support his position, but

we disagree. He contends that because comment 1(B)(iii) to section 1B1.10 of the

Guidelines allows a sentencing court to consider sentences imposed after an

“original sentencing proceeding,” this “specific inclusion of ‘post sentencing

conduct’ . . . suggests the exclusion of post-sentencing conduct in the definition of

‘prior sentence’ in [section] 4A1.2(a)(1).” But section 1B1.10 applies to a

reduction of a defendant’s sentence after the Commission has retroactively

amended a guideline, not a resentencing after vacatur. That is, section 1B1.10 and

its commentary speak of an “original sentence” only because that section allows


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for revisions to a sentence. Burke also argues that section 4A1.2(e)(1)—which

limits the “prior sentence[s]” a district court can consider to those sentences

“imposed within fifteen years of the defendant’s commencement of the instant

offense”—is further evidence that the reference point should be the original

sentencing. But section 4A1.2(e)(1) says nothing about the definition of the term

“prior sentence”; it instead limits the time period for which a prior sentence

mandates additional criminal history points. And it does not establish the initial

sentencing as a reference point. Section 4A1.2(e)(1) instead looks to the

“commencement of the instant offense” to set the time period.

      Burke finally contends that the term “prior sentence” is ambiguous and the

ambiguity should be resolved in his favor under the rule of lenity, but even Burke

acknowledges that it is “doubtful that the judicial interpretation of advisory

Sentencing Guidelines promulgated by an independent commission implicates

either of the twin concerns that motivate the rule of lenity.” United States v.

Wright, 607 F.3d 708, 719 (11th Cir. 2010) (William Pryor, J., concurring). And in

any event, the text of the guideline is clear—“‘prior sentence’ means a sentence

imposed prior to sentencing on the instant offense,” U.S.S.G. § 4A1.2 cmt. 1.

      Burke’s alternative ground for appeal—that the district court erred in

calculating his sentence because his 1999 Florida conviction for armed robbery is

not a “crime of violence” as that term is used in section 2K2.1(4)(A) of the


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Guidelines—is foreclosed by binding precedent. United States v. Fritts, 841 F.3d

937, 938 (11th Cir. 2016) (holding that a conviction for Florida armed robbery is a

crime of violence under the Armed Career Criminal Act); Lockley, 632 F.3d at

1246 (holding that a conviction under the Florida robbery statute, Fla. Stat.

812.13(1), is a “crime of violence” under section 4B1.2(a)).

                              IV.    CONCLUSION

      We AFFIRM Burke’s sentence.




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