[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 22

- 13754

Non

- Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

versus MICHAEL ANDREW HESTER,

Defendant

- Appellant.

____________________ Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 7:21

- cr

- 00006

- HL

- TQL

- 2

____________________ USCA11 Case: 22-13754 Document: 28-1 Date Filed: 06/10/2024 Page: 1 of 52 Opinion of the Court 22

- 13754

Before J ORDAN , B RANCH , and L UCK , Circuit Judges.

P ER C URIAM : Michael Andrew Hester appeals his 262

- month sentence for conspiracy to distribute heroin. He move s for summary reversal, and the government does not oppose the motion. Because the district court plain ly erred in sentencing him as a career offender when he was convicted only of an inchoate offense , we now grant Hester’s motion , vacate his sentence, and remand for resentencing.

FACTUAL BACKGROUND AND PROCEDURAL HISTOR Y In July 2022, Hester pleaded guil ty to one count of conspiracy to distribute heroin. Hester’s presentence investigation report calculated a base offense level of 24. The report then applied two different two

- level increases

— for possession of a firearm during his offense and for obstruction of justice

— raising his offense level to

28. The report also classified Hester as a career offender based on his age, criminal history, and “c ontrolled substance offense ” of conviction

— raising his total offense level to 34 pursuant to section 4B1.1(b)(2) of the sentencing guidelines

. The report also calculated a criminal history score of 25, resulting in a criminal history category of VI. Based on Hester’s total offense level of 34 and his cri minal history category of VI, the report calculated a guideline range of 262 to 327 months ’ imprisonment

. Hester objected to being classified as a career offender on the grounds that one of his prior offense s did not qualify as a USCA11 Case: 22-13754 Document: 28-1 Date Filed: 06/10/2024 Page: 2 of 522

- 13754 Opinion of the Court 3
predicate crime of violence

. He did not object that his offense of
conviction did not qualify as a “ controlled substance offense

, ” as defined in sentencing guidelines section 4B1.2(b). The district court overruled Hester’s objection, accepted the presentence inve stigation report, and sentenced Hester to 262 months’ imprisonment. This is Hester’s appeal.

DISCUSSION

Hester seeks summary reversal on the basis that his conviction for conspiracy to distribute heroin was not a qualifying “ controlled substance offense ” under the career offender guideline

. We
agree and will grant his motion. Summary disposition is appropriate when “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as t o the outcome of the case.” Groendyke Tra ns p. , Inc. v. Davis
, 406 F.2d 1158, 1162 (5th Cir. 1969). Although we ordinarily review the interpretation and application of the sentencing guidelines de novo, when a defendant fails to raise an argument in the d istrict court
, we review only for plain error. United States v. Johnson , 694 F.3d 1192, 1195 & nn.2

– 3 (11th Cir. 2012) ( citat ions omitted). The district court commits plain error when “(1) there is an error; (2) that is plain or obvious; (3) affecting the defendant’s substantial rights in that it was prejudicial and not harmless; and (4) that seriously affects the fairness, integrity [,] or public reputation of the judicial proceedings.” Id. at 1195 & n. 4 (quoting United USCA11 Case: 22-13754 Document: 28-1 Date Filed: 06/10/2024 Page: 3 of 54 Opinion of the Court 22

- 13754
States v. Spoerke , 568 F.3d 1236, 1244

– 45 (11th Cir. 2009) ). An error that is “plain under controlling precedent ” is obvious. Id. at 1195 & n.5 (quoting United States v. Lett , 483 F. 3d 782, 790 (11th Cir. 2007)). This can be shown through precedent that makes clear the

error is “‘ pla i n ’ at the time of appellate consideration

. ” Henderson v. United States , 568 U.S. 266, 279 (2013) ( quoting Johnson v. United
States , 520 U.S. 461, 468 (1997))

. As to prejudice, “ [w] hen a defendant is sentenced under an incorrect [g] uidelines range

— whether or not the defendant ’ s ultimate sentence falls within the correct
range

— the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error. ” Molina

- Martinez v. United States , 578 U.S. 189, 198 (2016). And as to fairness, “ [t] he risk of unnecessary deprivation of liberty particularly undermines the fairness, integrity, or public reputation of judicial proceedings in the cont ext of a plain [g] uidelines error .” Rosales

- Mireles v. United States , 138 S. Ct. 1897, 1908 (2018)

. To qualify as a career offender under the sentencing guidelines, a defendant’s offense of conviction must be either a “crime of violence” or a “controlle d substance offense.” U.S.S.G. § 4B1.1(a). Section 4B1.2(b) defines “controlled substance offense” as “ an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits

. . . distribution

. . . of a controlled substance

. . . or the possession of a controlled substance

. . . with intent to

. . . distribute ” it. U.S.S.G. § 4B1. 2 ( b ). In United
States v. Dupree
, we explained that “[t] he plain language definition of ‘ controlled substance offense ’ in [section] 4B1.2 unambiguously excludes inchoate offenses ” like conspiracy. 57 F.4th 1269, 1277 USCA11 Case: 22-13754 Document: 28-1 Date Filed: 06/10/2024 Page: 4 of 522

- 13754 Opinion of the Court 5

(11th Cir. 2023) (en banc)

. We therefore held that the defendant’s

“ conviction for conspiracy to possess with intent to distribute heroin and cocaine” was “not a controlled substance offense.” Id. at
1280.
Based on Dupree , i t is “ plain under [our] controlling precedent ” that Hester’s conviction for conspiracy to distribute heroin

was not a “ controlled substance offense ” as defined in the career offender g uideline

. Cf. Johnson , 694 F.3d at 1195 & n.5. This error affected Hester’s substantial rights by increasing his total offense level from 28 to 34, resulting in a guideline range of 262 to 327 months ’ imprisonment

— i nstead of 140 to 175 months ’ imprisonment

. See Molina

- Martinez , 578 U.S. at 201 (explaining that

, in the “ordinary case

, ” a defendant “satisf[ies] his burden to show prejudice by point ing to the application of an incorrect, higher [g] uidelines range and the sentence he received there under ”)

. In short, Hester is correct as a matter of law that he is not a career offender under the guidelines. We therefore grant H ester’s
motion
, vacate his sentence , and remand for resentencing.
MOTION GRANTED; VACATED AND REMANDED

. USCA11 Case: 22-13754 Document: 28-1 Date Filed: 06/10/2024 Page: 5 of 5