[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-12159

Non-Argument Calendar

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D.C. Docket No. 3:13-cr-00026-CAR-CHW-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

JASPER FULTON, 

a.k.a. Jap,

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

________________________

(March 5, 2015)

Before MARCUS, WILLIAM PRYOR, and MARTIN, Circuit Judges.

PER CURIAM: 

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Jasper Fulton appeals his 100-month sentence for distribution of cocaine 

base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). On appeal, Fulton argues 

that the district court procedurally erred by applying a career-offender-adjusted 

base offense level of 32, pursuant to Sentencing Guideline § 4B1.1(b)(3). He 

argues that, because it is ambiguous whether Congress intended for that 

enhancement to apply here, the rule of lenity requires us to hold that the district 

court should have applied a base offense level of 29, pursuant to USSG § 

4B1.1(b)(4). Beyond that, Fulton argues that the district court erred by treating the 

Sentencing Guidelines as mandatory rather than advisory, in violation of United 

States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). After careful consideration, 

we affirm.

I.

We review the reasonableness of a sentence under a “deferential 

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 

586, 591 (2007). “On appeal, the party challenging the sentence bears the burden 

to show that it is unreasonable.” United States v. Cubero, 754 F.3d 888, 893 (11th 

Cir.), cert. denied, 135 S. Ct. 764 (2014). We must consider several factors to 

determine if a sentence is procedurally reasonable, including whether the district 

court improperly calculated the Guideline range, treated the Guidelines as 

mandatory, or failed to consider the 18 U.S.C. § 3553(a) factors. Gall, 552 U.S. at 

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51, 128 S. Ct. at 597. “A court that misinterprets or misapplies the Guidelines 

inherently abuses its discretion.” United States v. McQueen, 670 F.3d 1168, 1169 

(11th Cir. 2012). As such, “we review the district court’s factual findings for clear 

error, and its interpretation and application of the Guidelines de novo.” Id.

II.

The district court did not procedurally err in applying a career-offenderadjusted base offense level of 32. The career offender Guidelines found in Section 

4B1.1(b) establish the base offense levels based on the maximum sentence 

permitted under the statute of conviction. In relevant part, § 4B1.1(b) provides 

that, if the statutory maximum for the conviction is “20 years or more, but less than 

25 years,” offense level 32 applies to career offenders. Id. § 4B1.1(b)(3). By 

contrast, if the statutory maximum is “15 years or more, but less than 20 years,” 

offense level 29 applies to career offenders. Id. § 4B1.1(b)(4). The application 

notes define statutory maximum as “the maximum term of imprisonment 

authorized for the offense of conviction that is a crime of violence or controlled 

substance offense, including any increase in that maximum term under a 

sentencing enhancement provision that applies because of the defendant’s prior 

criminal record.” Id. § 4B1.1, comment. n.2. 

The statutory maximum for distribution of cocaine base clearly falls within 

§ 4B1.1(b)(3)’s bounds. Under § 841(b)(1)(C), a person convicted of a controlledCase: 14-12159 Date Filed: 03/05/2015 Page: 3 of 6 
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substance offense involving a schedule II controlled substance, such as cocaine 

base, “shall be sentenced to a term of imprisonment of not more than 20 years.” 

By precluding sentences “more than 20 years,” the statute plainly allows for 20-

year sentences. That 20-year maximum unambiguously falls within the “20 years 

or more” language from § 4B1.1(b). This conclusion is confirmed by this Circuit’s

precedent. In United States v. Rogers, 228 F.3d 1318, 1328–30 (11th Cir. 2000), 

we observed that the 20-year maximum sentence under Section 841(b)(1)(C) falls 

within the Section 4B1.1(b)(3) range for career-offender-enhancement purposes. 

See id. at 1330.

Because the statute Fulton challenges is unambiguous, the rule of lenity does 

not apply. Under the rule of lenity, we “‘will not interpret a federal criminal 

statute so as to increase the penalty that it places on an individual when such an 

interpretation can be no more than a guess as to what Congress intended.’” United 

States v. Brame, 997 F.2d 1426, 1428 (11th Cir. 1993) (quoting Bifulco v. United 

States, 447 U.S. 381, 387, 100 S. Ct. 2247, 2252 (1980)). However, although

“[t]he rule of lenity only serves as an aid for resolving an ambiguity, it is not an 

inexorable command to override common sense and evident statutory purpose.” 

Id. This being the case, in order to invoke the rule of lenity, “there must be a 

‘grievous ambiguity or uncertainty in the statute.’” United States v. Maupin, 520 

F.3d 1304, 1307 (11th Cir. 2008) (per curiam) (quoting Muscarello v. United 

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States, 524 U.S. 125, 139, 118 S. Ct. 1911, 1919 (1998)). There is no grievous 

ambiguity or uncertainty regarding whether § 4B1.1(b)(3) or (4) applies to the 

statutory maximum term of imprisonment of “not more than 20 years” provided in 

§ 841(b)(1)(C). The district court did not err.

II.

We review claims of Booker error raised for the first time on appeal for 

plain error. United States v. York, 428 F.3d 1325, 1335 (11th Cir. 2005) (per 

curiam). Under plain-error review, “[a]n appellate court may not correct an error 

the defendant failed to raise in the district court unless there is: (1) error, (2) that is 

plain, and (3) that affects substantial rights.” United States v. Rodriguez, 398 F.3d 

1291, 1298 (11th Cir. 2005) (quotation omitted). “If all three conditions are met, 

an appellate court may then exercise its discretion to notice a forfeited error, but 

only if (4) the error seriously affects the fairness, integrity, or public reputation of 

judicial proceedings.” Id. (quotation omitted).

There is no reason to think the district court plainly erred by treating the 

Guidelines as mandatory here. In United States v. Smith, 480 F.3d 1277 (11th Cir. 

2007), the defendant argued that the district court erred by treating the Guidelines 

as mandatory and making factual findings that were used to enhance his sentence. 

Id. at 1281. We concluded that, from our review of the transcript of the sentencing 

hearing, “it [was] clear that the district court considered the Guidelines to be 

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advisory.” Id. (emphasis omitted). We noted that “the district judge explicitly 

stated that she had consulted the ‘advisory range’” and “considered the factors set 

forth in 18 U.S.C. § 3553(a) in arriving at a sentence.” Id. We concluded that the 

record therefore “showed that the district court understood the Guidelines to be 

advisory.” Id.

Likewise here, it is clear from the transcript of this sentencing hearing that 

the district court knew the Guidelines were advisory, and not mandatory. As the 

district court specifically stated:

Having considered the government’s motion for sentence reduction 

for substantial assistance pursuant to USSG Section 5K1.1 and 18 

USC Section 3553(e) the Court departs downward from the advisory

sentencing range and commits you to the Bureau of Prisons for a 

period of 100 months. Since the sentence ordered by the Court is 

within an advisory guideline range that is greater than 24 months the 

Court is required to state the reason for the sentence. The Court 

imposed a sentence of 100 months, after considering the advisory

sentencing range, the sentencing factors found at 18 USC Section 

3553(a) and having made an individualized assessment based on the 

facts presented.

Sentencing Tr. 8–9, Apr. 22, 2014, ECF No. 44. Fulton has not shown that the 

district court erred under the first prong of plain-error review. 

AFFIRMED.

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