NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-1974
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UNITED STATES OF AMERICA
v.
JEFFREY GILLESPIE,
Appellant
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On Appeal from United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-12-cr-00356-001)
District Judge: Petrese B. Tucker
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Submitted Pursuant to Third Circuit LAR 34.1(a)
April 7, 2014
Before: FISHER, SCIRICA and COWEN, Circuit Judges.
(Filed: April 14, 2014)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Appellant Jeffrey Gillespie appeals from a judgment in the United States District
Court for the Eastern District of Pennsylvania on a charge of unlawful reentry after
having previously been deported, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). We will
affirm.
I.
We write principally for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts that are necessary
to our analysis.
Gillespie, a native and citizen of Jamaica, lawfully entered the United States on
September 24, 1994, and obtained permanent resident status in 2006. Thereafter, on
January 22, 2008, he pled guilty to charges of aggravated menacing, malicious
interference with emergency communications, and possession of a deadly weapon by a
prohibited person. Following this series of events, he was deported on June 30, 2011
pursuant to an order of removal. Without receiving permission from the United States
Attorney General or the Secretary of the Department of Homeland Security to reenter the
United States after deportation, as required by 6 U.S.C. §§ 202(3), (4) and 557, he
reentered illegally and was arrested by law enforcement officers in Philadelphia,
Pennsylvania on unrelated drug charges. Following his conviction on those charges, a
federal grand jury returned an indictment charging Gillespie with a single count of
unlawful reentry after having previously been deported, in violation of 8 U.S.C. §§
1326(a) and (b)(2).
Gillespie pled guilty to the unlawful reentry charge on October 4, 2012, and a
presentence investigation report ("PSR") was prepared. The PSR first calculated
Gillespie's criminal history points, assigning him one point for his aggravated menacing
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conviction and another point for the drug charge, which resulted in a criminal history
category of II. The PSR then assigned Gillespie a base offense level of 8, pursuant to 8
U.S.S.G. § 2L1.2(a). Because he received a criminal history point for his aggravated
menacing conviction, the PSR increased Gillespie's base offense level by 16 levels, for
being previously deported, or unlawfully remaining in the United States, after a
conviction for a felony that is a crime of violence. If he had been assigned no criminal
history points, his offense level would have been increased by only 12 levels. See
U.S.S.G. § 2L1.2(b)(1)(A)(ii). Gillespie's offense level was then reduced by 3 levels for
acceptance of responsibility, resulting in a total offense level of 21 and a Guidelines
range of 41 to 51 months' imprisonment.
At his sentencing hearing, on February 11, 2013, neither the government nor the
defendant presented any objections to the PSR. The District Court sentenced Gillespie to
a term of 41 months' imprisonment.
This appeal followed.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Appellant concedes that he failed to preserve the only argument he presents on
appeal. Therefore, we review for plain error only. Fed. R. Crim. P. 52(b); Puckett v.
United States, 556 U.S. 129, 135 (2009). When reviewing for plain error, "[w]e follow
the four-step inquiry set out in United States v. Olano, 507 U.S. 725, 732-36 (1993)."
United States v. Quinn, 728 F.3d 243, 261 (3d Cir. 2013). There must be: (1) "an error or
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defect"; (2) that is "clear or obvious"; (3) that has "affected the appellant's substantial
rights", i.e., it "affected the outcome of the district court proceedings." Id. (quoting
Olano, 507 U.S. at 732-36). When the first three conditions are met, we "exercise our
discretion to correct the unpreserved error only if . . . a miscarriage of justice would
otherwise result, that is, if the error seriously affected the fairness, integrity or public
reputation of judicial proceedings." Id. (citation and internal quotation marks omitted).
III.
A.
Gillespie's sole argument challenges the District Court's application of the 16-level
enhancement to his base offense level. He claims that the plain language of U.S.S.G.
§ 2L1.2(b)(1)(A), which uses the plural form of the word "point," requires that prior
convictions have scored more than one criminal history point to trigger the 16-level
enhancement. Because he only received one criminal history point (rather than multiple
points) for his aggravated menacing offense, he argues that the 12-level enhancement
should have been applied. We disagree.
Section 2L1.2(b) provides, in pertinent part, that if a defendant has been
previously deported, or unlawfully remains in the United States, "after a conviction for a
felony that is . . . a crime of violence . . .," the district court should increase his offense
level "by 16 levels if the conviction receives criminal history points" and "by 12 levels if
the conviction does not receive criminal history points." U.S.S.G. § 2L1.2(b)(1)(A)
(emphasis added).
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Gillespie engages in an extensive analysis of § 2L1.2(b) that includes discussion
of the text of the Guidelines, canons of construction, the rule of lenity, and amendments
to the Guidelines in order to reach the interpretation he suggests. We find this discussion
wholly unnecessary, as the plain language of the provision is perfectly clear: if an
individual received criminal history points for a past offense, that is, any criminal history
points, then a 16-level enhancement will apply. If the individual did not receive any
points, then a 12-level enhancement will apply. The language merely distinguishes
between receiving criminal history points and not receiving criminal history points. We
find this interpretation to be in accord with its common usage. See, e.g., United States v.
Romo-Villalobos, 674 F.3d 1246, 1248 (11th Cir. 2012) (stating that "a defendant
receives a 16-level enhancement if his conviction has any criminal history points . . . ."
(emphasis added)). Had the Sentencing Commission intended the 16-level enhancement
to apply to defendants with only "more than one" or "two or more" criminal history
points, we believe that it would have stated so. We, therefore, reject Gillespie's
argument.
Gillespie's interpretation of § 2L1.2(b) is creative at best. Unfortunately, creative
arguments do not always have merit. Because Gillespie received criminal history points
in connection with a crime of violence, the 16-level enhancement was properly applied to
his base offense level. Accordingly, we conclude that the District Court did not commit
error, plain or otherwise.
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IV.
For the reasons set forth above, we will affirm the District Court's judgment of
conviction and sentence.
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