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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16829
Non-Argument Calendar
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D.C. Docket No. 4:15-cr-00131-WTM-GRS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
LEON CARTER,
Defendant - Appellee.
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Appeals from the United States District Court
for the Southern District of Georgia
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(August 18, 2017)
Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Leon Carter, who pled guilty to one count of illegal firearm possession,
appeals his classification as an armed career criminal under the Armed Career
Criminal Act, 18 U.S.C. § 924(e). The government, maintaining that Mr. Carter
was correctly classified as an armed career criminal, appeals Mr. Carter’s
96-month sentence on the ground that the district court lacked a legal basis to
impose a sentence below ACCA’s 180-month mandatory minimum.
Because neither party objected to the adverse district court decision now
being appealed, we review for plain error. See, e.g., United States v. Raad, 406
F.3d 1322, 1323 (11th Cir. 2005). Following a review of the record and the
parties’ briefs, we conclude that the district court did not plainly err in classifying
Mr. Carter as an armed career criminal, but that it committed plain error when it
imposed a sentence below the ACCA statutory minimum.
I
“Plain error occurs where (1) there is an error; (2) that is plain or obvious;
(3) affecting the defendant’s substantial rights in that it was prejudicial and not
harmless; and (4) that seriously affects the fairness, integrity or public reputation of
the judicial proceedings.” United States v. Hall, 314 F.3d 565, 566 (11th Cir.
2002). “[W]here the explicit language of a statute or rule does not specifically
resolve an issue, there can be no plain error where there is no precedent from the
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Supreme Court or this Court directly resolving it.” United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th Cir. 2003).
II
Mr. Carter contends that the district court plainly erred by classifying him as
an armed career criminal. Because he pled guilty to a federal firearms offense,
Mr. Carter qualifies as an armed career criminal if he “has three previous
convictions . . . for a violent felony or a serious drug offense, or both, committed
on occasions different from one another.” 18 U.S.C. § 924(e)(1). He argues that
his prior Georgia convictions—including for aggravated assault, sale of a
controlled substance, and conspiracy to distribute a controlled substance—do not
count as ACCA predicate offenses. Mr. Carter, however, has not cited any
Supreme Court or Eleventh Circuit cases holding that his prior Georgia convictions
do not qualify as ACCA predicate offenses, and we are not aware of any such
decisions. See Br. of Leon Carter at 21–31. He therefore cannot establish that the
district court committed plain error. See Lejarde-Rada, 319 F.3d at 1291.
III
The government argues that the district court plainly erred in sentencing Mr.
Carter below the 180-month mandatory minimum prescribed by ACCA.
Mr. Carter concedes that, if he qualifies as an armed career criminal, his 96-month
sentence constitutes plain error. See Br. of Leon Carter at 13. Because we have
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already decided that his classification as an armed career criminal does not
constitute plain error, this should be the end of the inquiry. Mr. Carter, however,
urges us not to exercise our discretion under plain-error review to correct his
sentence on the ground that various “countervailing factors,” id. at 14, demonstrate
that the district court’s error does not “seriously affect[ ] the fairness, integrity or
public reputation of the judicial proceedings.” Hall, 314 F.3d at 566.
But our precedent says just the opposite. In United States v. Clark, 274 F.3d
1325, 1325–26, 1328 (11th Cir. 2001), the defendant was convicted of an offense
that carried a statutory minimum sentence of 240 months’ imprisonment, but the
district court imposed a 150-month sentence. The government appealed, arguing
that the district court erred in imposing a sentence below the statutory minimum
without a legal basis (such as when the government files a substantial assistance
motion or the defendant qualifies for “safety valve” relief under 18 U.S.C.
§ 3553(f)).
We reviewed the sentence for plain error because the government had failed
to object to the sentence at the district court, and concluded that “the district
court’s imposition of a sentence that is less than two-thirds of the
statutorily-required minimum” constituted plain error. Clark, 274 F.3d at 1329. In
reaching this conclusion, we explained that the sentence imposed, which we
described as an “extraordinary downward departure” from the mandatory
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minimum, “show[ed] a disregard for governing law, diminishe[d] the fairness of
the criminal sentencing scheme by allowing disparate sentences to be imposed on
similarly-situated defendants, and undermine[d] the integrity and public reputation
of the judicial system.” Id. Similarly, we have also vacated and remanded for re-
sentencing where a defendant’s sentence exceeded the statutory maximum, on the
ground that the imposition of such a sentence constitutes plain error and affects the
defendant’s substantial rights as well as the fairness, integrity, and public
reputation of the judicial proceedings. See, e.g., United States v. Sanchez, 586 F.3d
918, 930 (11th Cir. 2009).
Mr. Carter’s sentence, which stands at nearly half the statutorily-required
minimum, presents the same systemic problems to the fairness and integrity of the
judicial proceedings as the sentence in Clark. Our decision in Clark therefore
forecloses Mr. Carter’s argument that the fourth prong of the plain-error analysis
favors discretionary refusal on our part to correct his sentence. See also United
States v. Castaing-Sosa, 530 F.3d 1358, 1361 (11th Cir. 2008) (reversing, under de
novo review, a sentence that was only two-thirds the mandatory minimum).
Accordingly, we vacate Mr. Carter’s sentence and remand this case to the district
court for re-sentencing.
AFFIRMED IN PART, AND VACATED AND REMANDED IN PART.
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