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Eleventh Circuit: Selling Body Armor Doesn’t Satisfy Sentencing Guidelines’ Definition of ‘Use’

by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit held that selling body armor doesn’t meet the definition for “the use of body armor” as defined in § 3B1.5 of the Sentencing Guidelines.

Ronald John Bankston III pleaded guilty to two counts of unlawful possession and one count of distributing methamphetamine after he sold a stolen gun, two body armor vests, ammunition, and methamphetamine to an undercover detective. The district court relied on the presentence investigation report (“PSR”) when calculating Bankston’s sentence, which enhanced his sentence by two levels for the “use” of body armor in a drug trafficking offense. Bankston did not object to the two-level enhancement, and the court calculated his Guidelines range as 130 to 162 months. Bankston was sentenced to 130 months. He challenged the two-level enhancement on appeal.

Because Bankston failed to object to the enhancement, the Court reviewed for plain error, which required Bankston to show that (1) an error occurred, (2) that was obvious, (3) the error affected his “substantial rights in that it was prejudicial and not harmless,” and (4) it “seriously affect[ed] the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Beckles, 565 F.3d 832 (11th Cir. 2009). “An error is obvious when it flies in the face of either binding precedent or ‘the explicit language of a statute or rule.’” United States v. Chau, 426 F.3d 1318 (11th Cir. 2005).

Since there was no precedent interpreting the relevant language, the Court analyzed the language of the Guidelines and the accompanying commentary using the “traditional rules of statutory construction.” United States v. Perez, 366 F.3d 1178 (11th Cir. 2004).

The Guidelines provide for a two-level enhancement “[i]f the defendant was convicted of a drug trafficking crime” and “the offense involved the use of body armor.” U.S.S.G. § 3B1.5(1), (2)(A). “The commentary defines ‘use’ as either ‘active employment in a manner to protect the person from gunfire’ or ‘use as a means of bartering.’” U.S.S.G. § 3B1.5, cmt. n. 1. “Barter” means to “trade by exchanging goods or services without using money.” Webster’s New World College Dictionary (5th Ed. 2018).

Because the plain meaning of the Guidelines and its commentary excluded Bankston’s act of selling the body armor, the district court’s application of the enhancement was obvious error.

Since the error caused Bankston to be sentenced under a Guidelines range higher than the range calculated without the two-level enhancement, he demonstrated the error was prejudicial. Molina-Martinez v. United States, 136 S. Ct. 1338 (2016).

Because the faulty enhancement subjected Bankston to a potentially longer sentence and a “risk of unnecessary deprivation of liberty,” the error undermined “the fairness, integrity, [and] public reputation of the judicial proceedings.” Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018).

The Court concluded that Bankston established a showing of plain error.

Accordingly, the Court vacated Bankston’s sentence and remanded for resentencing without the body-armor enhancement. See: United States v. Bankston, 945 F.3d 1316 (11th Cir. 2019). 

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Related legal case

United States v. Bankston

 

 

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