Case: 14-12159   Date Filed: 03/05/2015   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-12159
                        Non-Argument Calendar
                      ________________________

              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, 

, 

(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, 

, 41, 

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

to show that it is unreasonable.” United States v. Cubero, 

, 893 (11th

Cir.), cert. denied, 

(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. 

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. “A court that misinterprets or misapplies the Guidelines

inherently abuses its discretion.” United States v. McQueen, 

, 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.” 

district court did not procedurally err in applying a career-offender-

adjusted 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. 

By

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

offense level 29 applies to career offenders. 

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.” 

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 controlled-


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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, 

, 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 

      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, 

, 1428 (11th Cir. 1993) (quoting Bifulco v. United

States, 

, 387, 

, 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.”

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, 

, 1307 (11th Cir. 2008) (per curiam) (quoting Muscarello v. United


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States, 

, 139, 

, 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, 

, 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, 

, 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.” 

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

Guidelines as mandatory here. In United States v. Smith, 

(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.

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.” 

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.” 

that the

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

advisory.” 

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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