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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13735
Non-Argument Calendar
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D.C. Docket No. 0:13-cr-60167-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
versus
CEDRICK WILLIAMS,
Defendant – Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 15, 2019)
Before WILLIAM PRYOR, JORDAN, and GRANT, Circuit Judges.
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PER CURIAM:
Cedric Williams appeals the 162-month sentence imposed by the district court
on resentencing.
In 2014, Mr. Williams pled guilty to committing and attempting to commit
Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and unlawfully possessing a
firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). He later filed a
motion to vacate his sentence under 28 U.S.C. § 2255 pursuant to Johnson v. United
States, 135 S. Ct. 2551 (2015). The government agreed that the motion should be
granted, and the district court vacated Mr. Williams’ sentence and set his case for
resentencing.
Mr. Williams now appeals that second sentence. He argues that the district
court committed plain error by applying the version of the Sentencing Guidelines in
effect at the time of his original sentencing (the 2013 version), rather than the
guidelines in effect at the time of his resentencing (the 2016 version). The
government agrees with Mr. Williams, confessing error on appeal.
We agree that the district court committed plain error. To establish plain error,
Mr. Williams must show that there was (1) an error, (2) that is plain, and (3) that
affects substantial rights. See United States v. Shelton, 400 F.3d 1325, 1328–29
(11th Cir. 2005). “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
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affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at
1329 (quotation omitted). For an error to be plain, it must be obvious or clear under
current law. See United States v. Baker, 432 F.3d 1189, 1207 (11th Cir. 2005). For
the error to be prejudicial, it must have “affected the outcome of the district court
proceedings” with a reasonable probability that, had the error not occurred, the result
may have been different. United States v. Olano, 507 U.S. 725, 734 (1993). See
also United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005).
The error here was plain. District courts must use the guidelines in effect on
the date that the defendant is sentenced, unless doing so causes an ex post facto
violation. See 18 U.S.C. § 3553(a)(4)(A)(ii). See also U.S.S.G. § 1B1.11(a) (“The
court shall use the Guidelines Manual in effect on the date that the defendant is
sentenced.”); United States v. Lance, 23 F.3d 343, 344 (11th Cir. 1994) (“The
Guidelines also provide, however, that a sentencing judge must use the Guidelines
Manual in effect on the date the crime was committed, if using the Guidelines
Manual in effect on the date of sentencing would violate the ex post facto clause of
the United States Constitution.”) (citing § 1B1.11(b)(1)).
The exception to this rule—for sentences imposed in violation of law, as the
result of an incorrect application of the sentencing guidelines, or because the district
court committed a procedural error under § 3742(f)(2)—is inapplicable here. Mr.
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Williams was resentenced after the district court granted his § 2255 motion. See
§ 3742(g).
The error was also prejudicial. Mr. Williams was classified as a career
offender under the 2013 guidelines, and his advisory guideline range was 151 to 188
months’ imprisonment. The district court sentenced him to 162 months in prison,
within that range. Had Mr. Williams been properly sentenced under the 2016
guidelines, his conviction for “burglary of an unoccupied dwelling” would not have
qualified as a crime of violence under U.S.S.G. § 4B1.2(a). That is because the 2016
guidelines eliminated the “residual clause” of § 4B1.2(e). See App. C, amend. 798
(Supp. Nov. 1, 2016). Because “burglary of an unoccupied dwelling” does not
qualify under either the elements clause or the enumerated offenses clause of
§ 4B1.2(a)(1) or (2)—and was only considered a crime of violence under the now-
repealed residual clause—the district court could not have considered it a crime of
violence under the 2016 guidelines. See United States v. Matchett, 802 F.3d 1185,
1196–97 (11th Cir. 2015).
This error affected Mr. Williams’ sentence. The presentence investigation
report calculated Mr. Williams’ offense level at 24 because of his two felony
convictions for crimes of violence. Without the “burglary of an unoccupied
dwelling” conviction, Mr. Williams would only have had one crime of violence,
which would have reduced his base offense level to 20. See § 2K2.1(a)(2). He
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would also no longer qualify as a career offender under § 4B1.1. And finally, his
criminal history points would lead to a criminal history score of V rather than VI,
what he received. Under the 2016 guidelines, Mr. Williams’ advisory range would
have been 63 to 78 months, about 7-9 years below the range under which he was
sentenced. Given the large discrepancy in the two sentencing ranges, we exercise
our discretion to correct the error because it affected the fairness of the sentencing
proceeding.
We recognize that there is an appeal waiver in Mr. Williams’ plea agreement.
But the government states that it has “elected not to enforce the appellate waiver
under the circumstances of this case.” Appellee’s Br. at 16–17. We accept that
waiver. Plea agreements are like contracts, albeit “constitutional contracts.”
Ricketts v. Adamson, 483 U.S. 1, 16 (1987). As a result, “the law of commercial
contract may in some cases prove useful . . . in construing a plea agreement.” Id. It
is a basic principle of contract law that where two parties mutually agree to depart
from a contract, the court may apply that new agreement. See Howard O. Hunter,
Modern Law of Contracts § 19:32 (2018) (explaining that “substituted agreement,”
“modification,” and “waiver” all describe the well-known concept where “one or
both parties have agreed by words or actions to a change in the original agreement”).
Here, the government has chosen not to enforce the appeal waiver in Mr.
Williams’ plea agreement. We see no reason to prevent the government from doing
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so. See e.g., United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000) (declining
to consider appeal waiver where government had expressly chosen not to rely on it).
We vacate Mr. Williams’ sentence and remand for resentencing.
REVERSED and REMANDED.
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