USA v. Brandon Romel Dupree, No. 19-13776 (11th Cir. 2023)Annotate this Case
Defendant pled guilty to one count of possession of a firearm after having been convicted of a felony, one count of conspiracy to possess with intent to distribute heroin and cocaine, and one count of carrying a firearm in furtherance of a drug trafficking offense. Before his sentencing, a probation officer prepared a Presentence Investigation Report (“PSR”). The PSR reported that Defendant had two previous convictions for controlled substance offenses. The PSR considered Defendant’s Section 846 conspiracy conviction to be his third controlled substance offense. Together, these three offenses qualified Defendant for the career offender enhancement under Section 4B1.1(a) of the Sentencing Guidelines. On appeal, Defendant renewed his argument that his Section 846 conspiracy conviction did not count as a controlled substance offense. Defendant petitioned for, and the Eleventh Circuit granted, rehearing en banc to revisit its precedent.
The Eleventh Circuit vacated Defendant’s sentence and remanded to the district court for resentencing. The court concluded that the text of Section 4B1.2(b) unambiguously excludes inchoate crimes. Under Kisor, that concluded the court’s analysis. Accordingly, the court wrote that it has no need to consider, much less defer to, the commentary in Application Note 1. Thus, the court held that Defendant’s conviction for conspiracy to possess with intent to distribute heroin and cocaine in violation of Section 846 is not a controlled substance offense because the plain text of Section 4B1.2(b) unambiguously excludes inchoate crimes. Accordingly, Defendant must be resentenced without application of the career offender enhancement.
This opinion or order relates to an opinion or order originally issued on June 14, 2021.