Case: 16-11753 Date Filed: 12/07/2016 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11753
Non-Argument Calendar
________________________
D.C. Docket No. 8:07-cr-00205-RAL-EAJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY LAMONT RANDALL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 7, 2016)
Before JULIE CARNES, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 16-11753 Date Filed: 12/07/2016 Page: 2 of 4
Gregory Randall appeals his 60-month imprisonment sentence, imposed
upon revocation of supervised release. On appeal, Randall argues, and the
government concedes, that the district court erred because it imposed a sentence
that was above the statutory maximum. Randall was originally convicted of being
a felon in possession of a firearm, and he received an enhanced sentence under the
Armed Career Criminal Act (“ACCA”). However, he filed a habeas corpus
petition that successfully challenged his ACCA enhancement, which resulted in his
re-sentencing and changed his underlying conviction from a Class A felony to a
Class C felony. Therefore, the district court was limited to a maximum revocation
sentence of two years’ imprisonment. He argues on appeal that the U.S. Probation
Office, and by extension, the district court, mistakenly relied on the presentence
investigation report from his original sentencing, which showed that his offense
was a Class A felony, to state that the statutory maximum upon revocation was five
years.
We review for plain error an argument that is raised for the first time on
appeal. United States v. Pantle, 637 F.3d 1172, 1174 (11th Cir. 2011). Under
plain error review, we may correct an error where: (1) an error occurred; (2) the
error was plain; (3) the error affects substantial rights; and (4) the error seriously
affected the fairness of the judicial proceedings. United States v. Gresham, 325
F.3d 1262, 1265 (11th Cir. 2003).
2
Case: 16-11753 Date Filed: 12/07/2016 Page: 3 of 4
An individual who is convicted of being a felon in possession of a firearm,
and who is not subject to an ACCA-enhanced sentence, is subject to a maximum
penalty of 10 years’ imprisonment. See 18 U.S.C. § 924(a)(2), (e)(1); see also 18
U.S.C. § 922(g)(1). A crime punishable by up to 10 years’ imprisonment is a Class
C felony. 18 U.S.C. § 3559(a)(3).
The permissible terms of imprisonment following a revocation of supervised
release are set out in 18 U.S.C. § 3583(e). See 18 U.S.C. § 3583(e). Under
§ 3583(e), the district court may revoke a term of supervised release and require
that the defendant serve in prison all or part of the term of supervised release if the
district court finds by a preponderance of the evidence that the defendant violated a
condition of supervised release, except that:
a defendant whose term is revoked under this paragraph may not be
required to serve on any such revocation more than 5 years in prison if
the offense that resulted in the term of supervised release is a Class A
felony, more than 3 years in prison if such offense is a class B felony,
more than 2 years in prison if such offense is a class C or D felony, or
more than one year in any other case.
Id. § 3853(e)(3). A sentence that exceeds the statutory maximum is plain error.
United States v. Eldick, 393 F.3d 1354, 1354 n.1 (11th Cir. 2004).
The district court plainly erred when it sentenced Randall to a 60-month
imprisonment term for violating the conditions of his supervised release. Randall’s
underlying offense, after re-sentencing, was a Class C felony. 18 U.S.C.
§3559(a)(3); 18 U.S.C. § 922(g)(1). Therefore, the maximum imprisonment term
3
Case: 16-11753 Date Filed: 12/07/2016 Page: 4 of 4
the district court was authorized to impose for Randall’s supervised release
violation was two years. 18 U.S.C. § 3583(e)(3). Moreover, because the court
imposed an illegal imprisonment term, the district court’s plain error seriously
affected Randall’s substantial rights and the fairness of his sentencing proceedings.
See Gresham, 325 F.3d at 1265. Accordingly, we vacate Randall’s sentence and
remand for resentencing.
VACATED AND REMANDED.
4