[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13754

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

MICHAEL ANDREW HESTER, 

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 7:21-cr-00006-HL-TQL-2

____________________

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2 Opinion of the Court 22-13754

Before JORDAN, BRANCH, and LUCK, Circuit Judges.

PER CURIAM:

Michael Andrew Hester appeals his 262-month sentence for 

conspiracy to distribute heroin. He moves for summary reversal, 

and the government does not oppose the motion. Because the district court plainly 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 HISTORY

In July 2022, Hester pleaded guilty 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 “controlled 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 criminal 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 offenses did not qualify as a 

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22-13754 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 investigation 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 to the outcome of the case.” Groendyke Transp., 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 district court, we review only for plain error. 

United States v. Johnson, 694 F.3d 1192, 1195 & nn.2–3 (11th Cir. 

2012) (citations 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 

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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 “‘plain’ 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 context 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 “controlled 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 

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(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, it 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 guideline. 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—instead 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 pointing to the application of an incorrect, higher [g]uidelines range and the sentence he received thereunder”).

In short, Hester is correct as a matter of law that he is not a 

career offender under the guidelines. We therefore grant Hester’s 

motion, vacate his sentence, and remand for resentencing.

MOTION GRANTED; VACATED AND REMANDED.

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