United States v. Eddie Fluker

PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-4690 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EDDIE DEAN FLUKER, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. Michael F. Urbanski, Chief District Judge. (1:92-cr-00031-MFU-1) Argued: May 8, 2018 Decided: June 5, 2018 Before KING, AGEE, and HARRIS, Circuit Judges. Vacated and remanded by published opinion. Judge Agee wrote the opinion, in which Judge King and Judge Harris joined. ARGUED: Christine Madeleine Lee, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Thomas T. Cullen, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. AGEE, Circuit Judge: Following a successful 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, Eddie Dean Fluker was resentenced to 308 months’ imprisonment. Fluker appeals, arguing principally that the district court improperly designated him as a career offender under the 2016 United States Sentencing Guidelines Manual, and that this incorrect designation led to the further error of applying the wrong version of the Guidelines Manual to determine his Guidelines range. He maintains that this procedural sentencing error entitles him to resentencing. We agree with Fluker, and for the reasons set out below, vacate his sentence and remand for resentencing. I. In 1992, Fluker was convicted of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count 1); carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 2); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 3) (collectively “Virginia convictions”). Fluker was sentenced as an armed career criminal under the residual clause of the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e)(2)(B)(ii). As an armed career criminal, Fluker was subject to a mandatory minimum 15-year sentence, as well as to heightened penalties under the then-mandatory sentencing Guidelines. The district court sentenced Fluker to 340 months’ imprisonment on Counts 1 and 3, to run concurrently, and to a mandatory sixty months’ imprisonment on Count 2, to run consecutively, yielding a total sentence of 400 months. 2 Five years later, the district court modified Fluker’s sentence under 18 U.S.C. § 3582(c)(2) and resentenced him to 327 months’ imprisonment on Counts 1 and 3, to run concurrently. The consecutive 60-month sentence on Count 2 remained unchanged, so Fluker’s total sentence became 387 months. The Supreme Court of the United States held in 2015 that the residual clause of the ACCA was unconstitutionally vague, Johnson v. United States, 135 S. Ct. 2551 (2015), and, in 2016, that this decision was retroactively applicable on collateral review, Welch v. United States, 136 S. Ct. 1257 (2016). We granted Fluker’s motion for permission to file ...

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals