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[DO NOT PUBLISH]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
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No. 13-11658
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D.C. Docket No. 8:12-cr-00024-EAK-AEP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIAN LEAVITT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(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.
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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, 423 F.3d 1228, 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, 608
F.3d 1222, 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 Klopf, 423 F. 3d at
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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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