Case: 15-30868 Document: 00514227196 Page: 1 Date Filed: 11/06/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-30868 FILED
November 6, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
DENNIS JOSEPH BRASS, also known as Joe,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:14-CR-216-1
Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
Dennis Joseph Brass pleaded guilty to conspiring to distribute and to
possess with intent to distribute 50 grams or more of methamphetamine, and
500 grams or more of a mixture and substance containing methamphetamine.
The district court sentenced Brass to 160 months in prison after applying the
career offender enhancement in U.S.S.G. § 4B1.1(a) to calculate the applicable
sentencing guidelines range. The district court’s application of this
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 15-30868
enhancement was based on its determination that Brass’s two prior Texas
convictions for possession with intent to deliver a controlled substance under
section 481.112(a) of the Texas Health and Safety Code (THSC) constituted
controlled substance offenses within the meaning of § 4B1.1. Brass did not
object to the application of the career offender enhancement.
On appeal, Brass challenges his sentence, contending that the district
court reversibly erred in determining that his convictions under THSC section
481.112(a) constituted controlled substance offenses within the meaning of the
guidelines. Because Brass did not object to the enhancement in the district
court, we review his challenge for plain error. See Puckett v. United States, 556
U.S. 129, 133–34 (2009). Under plain-error review, Brass must demonstrate
an error that was plain or obvious and that affected his substantial rights.
United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc).
Upon such a showing, we have discretion to correct the error if it “seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Id.
(cleaned up).
While this appeal was pending, this court held that convictions under
THSC section 481.112(a) do not constitute controlled substance offenses under
U.S.S.G. § 4B1.1. United States v. Tanksley, 848 F.3d 347 (5th Cir.),
supplemented by 854 F.3d 284 (5th Cir. 2017). Accordingly, the district court’s
application of the career offender enhancement under § 4B1.1 constituted plain
error. See Escalante-Reyes, 689 F.3d at 423 (“[W]here the law is unsettled at
the time of trial but settled by the time of appeal, the ‘plainness’ of the error
should be judged by the law at the time of appeal.”). The Government correctly
concedes that this error affected Brass’s substantial rights given the
100-month disparity between the bottom of the incorrect guidelines range and
the top of the correct guidelines range. The Government also agrees with Brass
that we should correct the error by remanding the case for resentencing. In
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No. 15-30868
light of the Government’s position and the error’s substantial impact on Brass’s
guidelines range, we exercise our discretion to VACATE the district court’s
sentence and REMAND for resentencing.
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