Case: 13-11658       Date Filed: 05/02/2014      Page: 1 of 3


                                                                      [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                           ____________________________

                                    No. 13-11658
                            ___________________________

                     D.C. Docket No. 8:12-cr-00024-EAK-AEP-1


UNITED STATES OF AMERICA,

                                                                        Plaintiff-Appellee,

                                            versus

BRIAN LEAVITT,

                                                                      Defendant-Appellant.

                             __________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                           __________________________

                                       (May 2, 2014)

Before WILSON and JORDAN, Circuit Judges, and ROTHSTEIN, * District
Judge.

PER CURIAM:


*
  Honorable Barbara Jacobs Rothstein, United States District Judge for the District of Columbia,
sitting by designation.
              Case: 13-11658     Date Filed: 05/02/2014    Page: 2 of 3




      In his initial brief, Brian Leavitt argued in part that, as a statutory matter, an

Ohio juvenile delinquency adjudication does not constitute a “prior conviction” for

purposes of an enhanced statutory sentence under 18 U.S.C. § 2252(b)(1). See

Appellant’s Br. at 12-18. In its answer brief, the government did not respond to

this contention, arguing instead that any statutory error committed by the district

court in sentencing Mr. Levitt was harmless. See Govt.’s Br. at 15-18. But, as the

government conceded at oral argument, any error could not have been harmless

because the district court imposed concurrent terms of imprisonment (of 324

months each) on the three counts of conviction, and those terms—absent an

enhanced statutory sentence pursuant to § 2252(b)(1)—were each above the

otherwise applicable 20-year maximum for each of the counts. See, e.g., United

States v. Klopf, 

, 1244-45 (11th Cir. 2005).


      Exercising our discretion, we accept the government’s concession on the

issue of harmless error for “purposes of this case,” United States v. Harris, 

, 1226 (11th Cir. 2010) (accepting government’s concession that a

Florida sexual battery conviction was not a “crime of violence” under 18 U.S.C. §

924(e)), completely vacate the sentences imposed on all three counts, and remand

for the district court to hold a new sentencing hearing.      See 

              Case: 13-11658     Date Filed: 05/02/2014   Page: 3 of 3


1245. At the new hearing, Mr. Levitt will face a statutory sentencing range of 5-20

years on each count of conviction, and the parties will be allowed to present all of

the sentencing arguments they deem appropriate.            These include, without

limitation, (1) the applicability of U.S.S.G. § 2G2.2(b)(5), (2) the availability of

consecutive sentences pursuant to U.S.S.G. § 5G1.2(d), and (3) the imposition of

an appropriate sentence given the factors set forth in 18 U.S.C. § 3553(a).


      SENTENCES VACATED; REMANDED FOR NEW SENTENCING HEARING.




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