### 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 U SDC 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 a fter Hill was sentenced, a panel of thi s court held

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 25, 2018

Lyle W. Cayce Clerk Case: 16-10431 Document: 00514322258 Page: 1 Date Filed: 01/25/2018No. 16

- 10431

2 that the statute under lying Hill’s prior conviction i s 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 v acate Hill’s sentence and remand for resentencing.
I. F ACTS AND P ROCEEDINGS Hill pleaded guilty without a plea agreement to being a felon in possession of a firearm. The p robation 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, appar e ntly in violation of T EX

. H EALTH & S AFETY C ODE A NN . §
481.112 ( a )

. 1 T he 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 G uidelines imprisonment range

was 46 to 57 months. Hill did not object to the PSR, and t he 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 t hat 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 st atute is not a “controlled substance offense” under the

1 The documentation supporting Hill ’ s earlier conviction does not explicitly state th at Hill was convicted under § 481.112(a), but the parties agree that Hill was convicted for violating § 481.112(a).
2 U.S. S ENTENCING G UIDELINES M ANUAL § 2K2.1(a)(4)(A) (U.S. S ENTENCING C OMM ’ N 2015 ). The 2015 edition of the G uidelines was applicable in th is case. Case: 16-10431 Document: 00514322258 Page: 2 Date Filed: 01/25/2018No. 16

- 10431

3 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.
I I

. A NALYSIS A. Sebelius Hill first asserts that the district court plainly erred by accepting the factual basis offered in support of his guilty plea

. H e 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 Independen t Business v. Sebelius

. 4 Hill acknowledges that this court’s prior jurispr udence 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 “controll ed substance offense,” defined in § 4B1.2(b), as the section applied to Hill. See id. at 349; U.S. S ENTENCING G UIDELINES M ANUAL § 4B1.2(b), § 2K2.1 cmt. n.1 (U.S. S ENTENCING C OMM ’ 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.”). Case: 16-10431 Document: 00514322258 Page: 3 Date Filed: 01/25/2018No. 16

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4 affec ted his substantial rights. 7 O n 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 T he 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 corr ect 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 Gove rnment forfeited this argument by failing to brief it.” (citing Yohey v. Collins , 985 F.2d 222, 224

– 25 (5th Cir. 1993) )).
12 U.S. S ENTENCING G UIDELINES M ANUAL ch. 5, pt. A (U.S. S ENTENCING C OMM ’ N 2015 ) . Without a prior conviction for a controlled substance offense, Hill ’ s offense level would have b een 12, which includes a two

- level r eduction for acceptance of responsibility. U.S. S ENTENCING G UIDELINES M ANUAL §§ 2K2.1(a)(6 ) , 3E1.1 (a) (U.S. S ENTENCING C OMM ’ N 2015 ). Because his base offense level would have been reduced below 16, Hill would not have be en eligible for the third level of reduction under U.S.S.G. § 3E1.1(b). Case: 16-10431 Document: 00514322258 Page: 4 Date Filed: 01/25/2018No. 16

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5 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 t his 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 gui lty 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 sentenc e 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 T ha t 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 di sagree with what [the prosecutor] said about the defendant ’ s histo ry, 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 c aptured 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, 2 89

– 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. Case: 16-10431 Document: 00514322258 Page: 5 Date Filed: 01/25/2018No. 16

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6 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 t he 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 senten ce and remand ing for resentencing in light of the foregoing analysis

. I II

. C ONCLUSION W e VACATE Hill’s sentence and REMAND for resentencing. Case: 16-10431 Document: 00514322258 Page: 6 Date Filed: 01/25/2018