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Fourth Circuit Vacates USSG Career Offender Sentence Predicated on Georgia Robbery

by Christopher Zoukis

The U.S. Court of Appeals for the Fourth Circuit vacated a prisoner’s sentence because the district court improperly found that Georgia robbery qualified the defendant for the U.S. Sentencing Guidelines career offender designation. The Court sent the case back to the lower court for resentencing.

In 1992, Eddie Dean Fluker was convicted of multiple federal drug and firearm crimes. He was sentenced under the Armed Career Criminal Act (“ACCA”) and given 400 months. Five years later, his sentence was adjusted downward to 387 months.

After the U.S. Supreme Court ruled the ACCA residual clause unconstitutional, Fluker filed a § 2255 motion. The district court granted the motion, vacated Fluker’s sentence, and ordered the probation office to prepare a new pre-sentence report (“PSR”) in anticipation of resentencing. This time, the probation officer did not apply the ACCA to Fluker’s Guideline calculation but did apply the career offender designation found in § 4B1.1 and § 4B1.2 of the Guidelines Manual.

Fluker objected to the career offender designation, which was based on two Georgia robberies. He argued that Georgia robbery is not a crime of violence for purposes of the designation. He also argued that while Ex Post Facto Clause issues would countenance using the 1991 Manual for resentencing, his Guideline range would be lower under the 2016 Manual if the career offender designation was not applied. As such, he said that he should be resentenced under the 2016 Manual, without the application of the career offender designation.

The district court found that Georgia robbery did support the career offender designation and that the 1991 Manual should be used to calculate Fluker’s Guidelines range. The court then sentenced Fluker to 308 months.

This likely would have been fine with Fluker, because the sentence amounted to time served, except that he caught another case while in custody. That crime cost him another 120 months, to run consecutive to the (now expired) original sentence. So Fluker appealed, arguing that the lower court improperly designated him a career offender and used the wrong Manual.

The Fourth Circuit agreed with Fluker on both of these points, and the Government conceded the arguments as well. Applying the categorical approach and recent circuit precedent, it was clear that Georgia robbery set forth in Georgia Code § 16-8-40(a) could not support a career offender designation. Generic robbery, in the Fourth Circuit, is “the misappropriation of property under circumstances involving immediate danger to the person” in which “the immediate danger element … is categorically satisfied by the taking of property from a person or person’s presence by means of force or putting in fear.” United States v. Gattis, 877 F.3d 150 (4th Cir. 2017). Georgia robbery exceeds that generic definition of robbery because it can be committed by “sudden snatching.” Such conduct “only requires the force ‘necessary for the robber to transfer the property from the owner to his possession’” and is therefore broader than generic robbery.

Because the career offender designation was improperly applied, the Court also agreed with Fluker that the lower court should have used the 2016 Manual. The Government agreed with this analysis and conceded that Fluker was improperly sentenced. But because Fluker had already completed the sentence in question, the Government argued that the issue was moot.

The Court disagreed. Even though Fluker’s original sentence was, in fact, complete, the sentence that he was still serving ran consecutive to the original. As such, correction of the original sentence would push back when Fluker began serving his consecutive sentence and, consequently, when it ended. That made the validity of the original sentence, which certainly seemed moot, a live issue.

“While Fluker’s [second] sentence arose from different offenses and was imposed at a different time, the [second] sentencing court specifically tied the running of that sentence to the amount of time Fluker served as a result of his [first] convictions,” wrote the Court. “The start date for Fluker’s [second] sentence was always and remains contingent on when he finishes the [first] sentence.”

“In consequence, Fluker continues to have a legally cognizable interest in the outcome of the appeal,” the Court concluded. “If he prevails, his ultimate release date may once again shift to an earlier date.”

Accordingly, the Court vacated Fluker’s sentence and remanded for further proceedings consistent with its opinion. See: United States v. Fluker, 891 F.3d 541 (4th Cir. 2018). 

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