IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10431

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

MARCUS LAVONDE HILL, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:15-CR-242-1

Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Marcus Lavonde Hill pleaded guilty to possession 

of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). The district court 

adopted the sentencing recommendation in the presentence investigation 

report (“PSR”), including application of a base offense level calculated on the 

basis of Hill’s prior conviction for a “controlled substance offense.” In an opinion 

rendered in another case after Hill was sentenced, a panel of this court held 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 25, 2018

Lyle W. Cayce

Clerk

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No. 16-10431

2

that the statute underlying Hill’s prior conviction is not a controlled substance 

offense under the United States Sentencing Guidelines (“Guidelines” or 

“U.S.S.G.”). Hill now appeals his sentence, urging us to correct the resulting 

error. We vacate Hill’s sentence and remand for resentencing. 

I. FACTS AND PROCEEDINGS

Hill pleaded guilty without a plea agreement to being a felon in

possession of a firearm. The probation officer prepared a PSR which noted that 

Hill had previously been convicted of a felony controlled substance offense, 

namely his 2000 Texas conviction for unlawful possession with the intent to 

deliver cocaine, apparently in violation of TEX. HEALTH & SAFETY CODE ANN. § 

481.112(a).1 The PSR therefore applied U.S.S.G. § 2K2.1(a)(4)(A) and assigned 

Hill a heightened base offense level of 20.2 After applying a three-level 

adjustment for acceptance of responsibility and calculating his criminal history 

category as V, the PSR concluded that Hill’s Guidelines imprisonment range 

was 46 to 57 months. Hill did not object to the PSR, and the district court 

adopted it, sentencing Hill to 51 months of imprisonment and three years of 

supervised release. 

Hill timely filed a notice of appeal. In his initial appellate brief, he 

challenged the validity of the statute of conviction, 18 U.S.C. § 922(g)(1). After 

he filed that brief, this court decided United States v. Tanksley, holding that a 

conviction for “possess[ion] with intent to deliver a controlled substance” under 

the above said Texas statute is not a “controlled substance offense” under the 

 

1 The documentation supporting Hill’s earlier conviction does not explicitly state that 

Hill was convicted under § 481.112(a), but the parties agree that Hill was convicted for 

violating § 481.112(a). 

2 U.S. SENTENCING GUIDELINES MANUAL § 2K2.1(a)(4)(A) (U.S. SENTENCING COMM’N

2015). The 2015 edition of the Guidelines was applicable in this case.

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Guidelines.3 We granted Hill’s motion to file a supplemental brief. In it, Hill 

contends that, based on Tanksley, the district court erred by determining that 

he had been convicted of a controlled substance offense, and urges us to correct 

that mistake under the plain error doctrine. 

II. ANALYSIS

A. Sebelius 

Hill first asserts that the district court plainly erred by accepting the 

factual basis offered in support of his guilty plea. He insists that the factual 

basis, which stated that the firearm underlying his conviction was in or 

affecting interstate commerce, was constitutionally inadequate based on the 

Supreme Court’s decision in National Federation of Independent Business v. 

Sebelius.4 Hill acknowledges that this court’s prior jurisprudence forecloses his 

assertion, but that he raises it only to preserve it for further review. In fact, 

this court rejected that specific challenge to § 922(g)(1) in United States v.

Alcantar.5 We are bound by this precedent,6 so Hill’s Sebelius challenge fails.

B. Tanksley

Hill next urges us to vacate his sentence based on Tanksley. The parties 

agree that this challenge is reviewed for plain error because Hill did not raise 

it in the district court. (Indeed, he could not have done so because Tanksley

was decided after Hill was convicted and sentenced.) Plain error review 

requires Hill to demonstrate an error that was plain or obvious and that 

 

3 United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017), supplemented, 854 F.3d 284 

(5th Cir. 2017). Tanksley concerned the “controlled substance offense” enhancement under 

U.S.S.G. § 4B1.1, but this section uses the same definition of “controlled substance offense,” 

defined in § 4B1.2(b), as the section applied to Hill. See id. at 349; U.S. SENTENCING 

GUIDELINES MANUAL § 4B1.2(b), § 2K2.1 cmt. n.1 (U.S. SENTENCING COMM’N 2015).

4 567 U.S. 519 (2012). 5 733 F.3d 143, 145–46 (5th Cir. 2013). 6 Id. at 145 (“[O]nly an intervening change in the law (such as by a Supreme Court 

case) permits a subsequent panel to decline to follow a prior Fifth Circuit precedent.”). 

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affected his substantial rights.7 On such a showing, we have discretion to 

correct the error if it “seriously affect[s] the fairness, integrity or public 

reputation of judicial proceedings.”8 “[The court] do[es] not view the fourth 

prong as automatic [even] if the other three prongs are met.”9 Instead, “[t]he 

fourth prong is meant to be applied on a case-specific and fact-intensive 

basis.”10

The government does not contest that, in light of Tanksley, Hill has 

satisfied the first three prongs of plain error: (1) there was error (2) which was 

clear or obvious (3) that affected Hill’s substantial rights.11 The government 

nevertheless argues that we should affirm Hill’s sentence because he has failed 

to establish that his case merits our exercise of discretion to correct the error. 

But Hill points out that, absent the error, the correct guidelines range would 

be 27 to 33 months;12 his 51-month sentence was thus 18 months longer than 

the high end of the correct range. 

This court has previously held that a “substantial disparity between the 

imposed sentence and the applicable Guidelines range warrants the exercise 

 

7 United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc).

8 Id. (alteration in original) (quoting Puckett v. United States, 556 U.S. 129, 135 

(2009)).

9 Id. at 425 (citing United States v. Davis, 602 F.3d 643, 650 (5th Cir. 2010)). 

10 Puckett, 556 U.S. at 142.

11 The Government states that “Hill may satisfy the second prong[,]” and that the error 

“presumably satisf[ies] the third prong[.]” (emphasis added). Yet the Government presents 

no argument to the contrary, and acknowledges this court’s precedents which support Hill’s 

arguments that the prongs are met. The Government has accordingly forfeited any such 

argument. See Coleman v. Lincoln Par. Det. Ctr., 858 F.3d 307, 309 (5th Cir. 2017) (per 

curiam); see also United States v. Cabrera, 478 F. App’x 204, 208 n.4 (5th Cir. 2012) (per 

curiam) (“The Government forfeited this argument by failing to brief it.” (citing Yohey v. 

Collins, 985 F.2d 222, 224–25 (5th Cir. 1993))).

12 U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A (U.S. SENTENCING COMM’N

2015). Without a prior conviction for a controlled substance offense, Hill’s offense level would 

have been 12, which includes a two-level reduction for acceptance of responsibility. U.S. 

SENTENCING GUIDELINES MANUAL §§ 2K2.1(a)(6), 3E1.1(a) (U.S. SENTENCING COMM’N

2015). Because his base offense level would have been reduced below 16, Hill would not have 

been eligible for the third level of reduction under U.S.S.G. § 3E1.1(b). 

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of [the court’s] discretion to correct the error.”13 Hill cites a number of cases 

with similar disparities in which this court found that the fourth prong was 

met,14 including one disparity of precisely the same length: 18 months.15

A recent unpublished case from this court is persuasive. In United States 

v. Crenshaw, this court chose to exercise its discretion to correct an error 

identical to the one presented in the instant case.16 Crenshaw pleaded guilty 

to the same offense as Hill and similarly received an enhanced base offense 

level for a controlled substance offense based on a prior conviction under the 

same Texas statute, making Crenshaw’s sentence erroneous under Tanksley.17

Crenshaw’s resulting sentencing disparity was 24 months.18 On appeal, this

court exercised its discretion, rejecting the government’s contention that 

Crenshaw’s history of criminal activity was a reason to decline to do so.19 That 

same contention is unpersuasive here, especially in light of the fact that the 

district court expressly rejected Hill’s past recidivism as a reason to impose a 

higher sentence: “I don’t disagree with what [the prosecutor] said about the 

defendant’s history, but I think it’s adequately reflected by the guideline 

criminal history category.”

 

13 United States v. Mudekunye, 646 F.3d 281, 291 (5th Cir. 2011) (per curiam).

14 United States v. Martinez-Rodriguez, 821 F.3d 659, 665–67 (5th Cir. 2016) (36-

month disparity); Mudekunye, 646 F.3d at 290–91 (19-month disparity); United States v. 

John, 597 F.3d 263, 286–89 (5th Cir. 2010) (21-month disparity); see also United States v. 

Blanton, 684 F. App’x 397, 400 (5th Cir. 2017) (per curiam) (collecting cases). But see United 

States v. Wikkerink, 841 F.3d 327, 337, 339 (5th Cir. 2016) (declining to correct 180-month 

disparity when district judge stated it was uncertain whether guidelines “correctly captured 

the nature and extent of the [defendant’s] behavior”); United States v. Ellis, 564 F.3d 370, 

370, 371 n.2, 378–79 (5th Cir. 2009) (explaining in dicta that the court would decline to correct 

63-month disparity). 15 United States v. Price, 516 F.3d 285, 289–90 (5th Cir. 2008). 

16 703 F. App’x 308, 312 (5th Cir. 2017) (per curiam). 

17 Id. at 311.

18 Id.

19 Id. at 312.

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The government also contends that Hill’s particular conduct would be 

characterized as a controlled substance offense, even if the statute of conviction 

would not. Again, we think such an argument is more appropriate for 

consideration first by the district court on resentencing. In light of the 

particular facts of Hill’s case and the degree of sentencing error, we choose to 

exercise our discretion by vacating Hill’s sentence and remanding for 

resentencing in light of the foregoing analysis. 

III. CONCLUSION

We VACATE Hill’s sentence and REMAND for resentencing. 

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