NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 13

- 1974

____________ UNITED STATES OF AMERICA

v. JEFFREY GILLESPIE,

Appellant

____________ On Appeal from United States District Co urt for the Eastern District of Pennsylvania (E.D. Pa. No. 2

- 12

- cr - 00356

- 001) District Judge: Petrese B. Tucker

____________ Submitted Pursuant to Third Circuit LAR 34.1(a)

April 7, 2014 Before: FISHER, SCIRICA and COWEN , Circuit Judges

.

(Filed: April 14, 2014 )

____________ OPINION OF THE COURT

____________ FISHER, Circuit Judge

.

Appellant Jeffrey Gillespie appeals from a judgment in the United States District Court for the Eastern District of Pennsylvania on a charge of unlawful reentry after2

having previously been deported, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). We will affirm.
I. We write principally for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts that are nece ssary to our analysis. Gillespie, a native and citizen of Jamaica, lawfully entered the United States on September 24, 1994, and obtained permanent resident status in 2006. Thereafter, on January 22, 2008, he pled guilty to charges of aggravated menacing, malicious interference with emergency communications, and possession of a deadly weapon by a prohibited person. Following this series of events, he was deported on June 30, 2011 pursuant to an order of removal. Without receiving permission from the Unit ed States Attorney General or the Secretary of the Department of Homeland Security to reenter the United States after deportation, as required by 6 U.S.C. §§ 202(3), (4) and 557, he reentered illegally and was arrested by law enforcement officers in Philad elphia, Pennsylvania on unrelated drug charges. Following his conviction on those charges, a federal grand jury returned an indictment charging Gillespie with a single count of unlawful reentry after having previously been deported, in violation of 8 U.S. C. §§ 1326(a) and (b)(2). Gillespie pled guilty to the unlawful reentry charge on October 4, 2012, and a presentence investigation report ("PSR") was prepared. The PSR first calculated Gillespie's criminal history points, assigning him one point for his a ggravated menacing3

conviction and another point for the drug charge, which resulted in a criminal history category of II. The PSR then assigned Gillespie a base offense level of 8, pursuant to 8 U.S.S.G. § 2L1.2(a). Because he received a criminal history point for his aggravated menacing conviction, the PSR increased Gillespie's base offense level by 16 levels, for being previously deported, or unlawfully remaining in the United States, after a conviction for a felony that is a crime of violence. If he h ad been assigned no criminal history points, his offense level would have been increased by only 12 levels. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). Gillespie's offense level was then reduced by 3 levels for acceptance of responsibility, resulting in a total o ffense level of 21 and a Guidelines range of 41 to 51 months' imprisonment. At his sentencing hearing, on February 11, 2013, neither the government nor the defendant presented any objections to the PSR. The District Court sentenced Gillespie to
a term o f 41 months' imprisonment. This appeal followed.
II. The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Appellant concedes that he failed to preserve the only arg ument he presents on appeal. Therefore, we review for plain error only. Fed. R. Crim. P. 52(b); Puckett v. United States , 556 U.S. 129, 135 (2009). When reviewing for plain error, "[w]e follow the four

- step inquiry set out in United States v. Olano , 507 U.S. 725, 732

- 36 (1993)." United States v. Quinn , 728 F.3d 243, 261 (3d Cir. 2013). There must be: (1) "an error or4

defect"; (2) that is "clear or obvious"; (3) that has "affected the appellant's substantial rights", i.e., it "affected the outcome of th e district court proceedings." Id. (quoting Olano , 507 U.S. at 732

- 36). When the first three conditions are met, we "exercise our discretion to correct the unpreserved error only if . . . a miscarriage of justice would otherwise result, that is, if the e rror seriously affected the fairness, integrity or public reputation of judicial proceedings." Id. (citation and internal quotation marks omitted).
III. A. Gillespie's sole argument challenges the District Court's application of the 16

- level enhanceme nt to his base offense level. He claims that the plain language of U.S.S.G. § 2L1.2(b)(1)(A), which uses the plural form of the word "point," requires that prior convictions have scored more than one criminal history point to trigger the 16

- level enhancem ent. Because he only received one criminal history point (rather than multiple points ) for his aggravated menacing offense, he argues that the 12

- level enhancement should have been applied. We disagree. Section 2L1.2(b) provides, in pertinent part, t hat if a defendant has been previously deported, or unlawfully remains in the United States, "after a conviction for a felony that is . . . a crime of violence . . .," the district court should increase his offense level "by 16 levels if the conviction rec eives criminal history points " and "by 12 levels if the conviction does not receive criminal history points ." U.S.S.G. § 2L1.2(b)(1)(A) (emphasis added).5

Gillespie engages in an extensive analysis of § 2L1.2(b) that includes discussion of the text of the Guidelines, canons of construction, the rule of lenity, and amendments to the Guidelines in order to reach the interpretation he suggests. We find this discussion wholly unnecessary, as the plain language of the provision is perfectly clear: if an individ ual received criminal history points for a past offense, that is, any criminal history points, then a 16

- level enhancement will apply. If the individual did not receive any points, then a 12

- level enhancement will apply. The language merely distinguishes between receiving criminal history points and not receiving criminal h istory points. We find this interpretation to be in accord with its common usage. See, e.g., United States v.
Romo

- Villalobos , 674 F.3d 1246, 1248 (11th Cir. 2012) (stating that "a de fendant receives a 16

- level enhancement if his conviction has any criminal history points . . . ." (emphasis added)). Had the Sentencing Commission intended the 16

- level enhancement to apply to defendants with only "more than one" or "two or more" crimina l history points, we believe that it would have stated so. We, therefore, reject Gillespie's argument. Gillespie's interpretation of § 2L1.2(b) is creative at best. Unfortunately, creative arguments do not always have merit. Because Gillespie received criminal history points in connection with a crime of violence, the 16

- level enhancement was properly applied to his base offense level. Accordingly, we conclude that the District Court did not commit error, plain or otherwise.6 IV. For the reasons set forth above, we will affirm the District Court's judgment of conviction and sentence.