The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13806
Non-Argument Calendar
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D.C. Docket No. 3:18-cr-00117-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYAN A. HINES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
________________________
(April 26, 2021)
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Before WILSON, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM:
Bryan Hines appeals his sentence of 41 months’ imprisonment for
possession of a firearm and ammunition as a convicted felon. The presentence
investigation report (“PSI”), which the district court adopted, arrived at a guideline
imprisonment range of 41 to 51 months based on an offense level of 15 and a
criminal history score of 13. On appeal, Hines argues that the district court plainly
erred in calculating his criminal history score because his PSI assigned criminal
history points to two marijuana offenses that were not separated by an intervening
arrest, in violation of U.S.S.G. § 4A1.2(a)(2). After careful review, we vacate
Hines’s sentence and remand to the district court for resentencing.
I. BACKGROUND
Hines was charged and pled guilty to possession of a firearm and
ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Prior to sentencing, the probation officer prepared a PSI, which
assigned Hines a base level offense of 15 and a criminal history score of 13. 1 As
part of calculating the criminal history score, the PSI assigned one criminal history
point each to two marijuana offenses that Hines committed on March 1, 2018. For
1
Hines’s original PSI gave him a criminal history score of 17. Hines objected, arguing
that four of the offenses should be counted as a single offense under U.S.S.G. § 4A1.2(a)(2). As
a result, the PSI was amended prior to sentencing to give him a criminal history score of 13.
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first offense, Hines was issued a citation and a notice to appear by the Pensacola
Junior College Police for possession of marijuana. He was not detained. For the
second, he was arrested by the Escambia County Sheriff’s Office, following a
traffic stop during which officers discovered marijuana in the car in which he was
a passenger. For both offenses, Hines failed to appear on June 6, 2018. As a
result, he was rearrested on July 18, 2018. He pled nolo contendere to a charge of
possession of marijuana under 20 grams in both cases and was sentenced to time
served on August 13, 2018.
Hines did not object to the PSI at sentencing. The district court determined
that the PSI was accurate and adopted it for the purposes of determining the
sentence. The court ultimately sentenced Hines to 41 months’ imprisonment—the
low end of the guidelines range of 41 to 51 months.
This is Hines’s appeal.
II. STANDARD OF REVIEW
We ordinarily review the district court’s application of the Sentencing
Guidelines to established facts de novo. United States v. Bradley, 644 F.3d 1213,
1283 (11th Cir. 2011). However, we review objections to sentencing calculation
issues that the defendant raises for the first time on appeal only for plain error.
United States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006). To demonstrate plain
error, a party must show that (1) there was an error, (2) the error was plain, and
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(3) the error affected his substantial rights. United States v. Turner, 474 F.3d 1265,
1276 (11th Cir. 2007). An error is “plain” if it is “obvious and clear under current
law.” United States v. Bacon, 598 F.3d 772, 777 (11th Cir. 2010) (internal
quotation marks omitted). Even where an error is plain, the decision to reverse is
ultimately discretionary. Turner, 474 F.3d at 1276. “We will exercise our
discretion to correct only those errors that seriously affect the fairness, integrity or
public reputation of judicial proceedings.” Id. (alteration adopted) (internal
quotation marks omitted).
III. DISCUSSION
On appeal, Hines argues that the district court plainly erred in calculating his
criminal history score under U.S.S.G. § 4A1.2(a)(2) because his PSI assigned
criminal history points for each of the two March 1, 2018 marijuana offenses, even
though he was sentenced for both on the same day and they were not separated by
an intervening arrest. In support, he argues that under United States v. Wright,
862 F.3d 1265 (11th Cir. 2017), his citation and notice to appear do not qualify as
an “arrest” within the meaning of § 4A1.2(a)(2). He contends that the error
affected his substantial rights and merits reversal because it affected his guideline
range. 2 We agree.
2
On appeal, Hines asks that we take judicial notice of supplemental authority. Because
we can decide this appeal without looking to any supplemental authority, we do not address
whether judicial notice is appropriate here.
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We first address whether counting the two marijuana offenses as one was a
plain error. The Guidelines provide that, for purposes of computing a defendant’s
criminal history score, a prior sentence is “any sentence previously imposed upon
adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for
conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1). Sentences are
counted separately if they were imposed for offenses that were separated by an
“intervening arrest,” meaning that “the defendant is arrested for the first offense
prior to committing the second offense.” Id. § 4A1.2(a)(2). Even if there was no
intervening arrest, sentences are still counted separately unless they resulted from
offenses charged in the same instrument or were imposed on the same day, in
which case they must be treated as a single sentence. Id.
The Sentencing Guidelines do not define the term “arrest.” See id.
§§ 4A1.2, 1B1.1, cmt. n.1. In United States v. Wright, we addressed whether a
defendant had been “arrested” within the meaning of § 4A1.2(a)(2) where she was
issued a citation for driving with a suspended license but was not taken into
custody when she was stopped. 862 F.3d at 1281–82. We determined that the
term “arrest” for purposes of § 4A1.2(a)(2) “does not include being pulled over,
briefly stopped, and issued a traffic citation.” Id. at 1283. Looking to the ordinary
meaning of “arrest,” we reasoned that “arrest ordinarily means that someone has
been seized and taken into custody, however briefly.” Id. at 1282 (internal
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quotation marks omitted). We further observed that “an arrest is usually indicated
by informing the suspect that he is under arrest, transporting the suspect to the
police station, and/or booking the suspect into jail.” Id. (internal quotation marks
omitted). We contrasted these procedures with a situation where an individual is
pulled over, issued a traffic citation for a traffic-law violation, and allowed to
leave, which would generally be described as getting a “ticket” rather than an
“arrest.” Id. We stated, in summary, that limiting the term “arrest to a formal
arrest (rather than a mere [traffic] citation)” was consistent with common usage,
caselaw, and the context and purpose of the Guidelines. Id. at 1283 (internal
quotation marks omitted). Further, we stated that the Guidelines could have used a
broader term than “intervening arrest” if the intention was to include traffic
citations. Id.
In this case, the government argues that the holding of Wright was limited to
traffic citations only. It maintains that because the first citation Hines received was
for possession of marijuana rather than a traffic violation, the holding of Wright
does not apply here. Although the government is correct that the holding of Wright
concerned the defendant’s traffic citation, id. at 1282, our prior precedent rule
dictates that we are bound both by the holding of prior case law and the reasoning
necessary to reach that holding, United States v. Gillis, 938 F.3d 1181, 1198 (11th
Cir. 2019). As such, we are bound by Wright’s reasoning in determining whether
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Hines’s first citation was an arrest or simply a ticket. And that reasoning points
clearly to one conclusion: the citation was not an arrest for the purpose of
§ 4A1.2(a)(2).
Hines was not “seized” or “taken into custody” by the first officer who
stopped him. Wright, 862 F.3d at 1282. The officer did not “inform[] [him] that
he [was] under arrest, transport[] [him] to the police station, . . . or book[] [him]
into jail.” Id. Instead, Hines was pulled over, given a citation, and allowed to
leave. Id. Under Wright, the two marijuana offenses were not separated by an
intervening arrest. And both sentences were imposed on the same day. It was
therefore plain error to assign criminal history points to both sentences. See
U.S.S.G § 4A1.2(a)(2) (“If there is no intervening arrest, prior sentences are
counted separately unless (A) the sentences resulted from offenses contained in the
same charging instrument; or (B) the sentences were imposed on the same day.”);
Wright, 862 F.3d at 1282–83.
Given that the error in calculating Hines’s criminal history score was plain,
we must now determine if it affected his substantial rights. We conclude that it
did. We have held that sentencing a defendant under an incorrect guidelines range
affects his substantial rights, even when the original sentence falls within the new
range. United States v. Bankston, 945 F.3d 1316, 1319–20 (11th Cir. 2019). If
Hines’s two marijuana offenses were counted as one instead of separately, his
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criminal history score would have dropped from a 13 to a 12. See U.S.S.G.
§ 4A1.2 (explaining how to calculate a defendant’s criminal history for the purpose
of sentencing). This, in turn, would have lowered his criminal history category
from a VI to a V and resulted in a guidelines range of 37 to 46 months, rather than
41 to 51 months. Id. Ch. 5 Pt. A. Even though Hines’s sentence falls within this
new range, the error in calculating his guidelines range affected his substantial
rights. See Bankston, 945 F.3d at 1319.
As to the final question of plain error review—whether we should exercise
our discretion to reverse this error—“[t]he risk of unnecessary deprivation of
liberty particularly undermines the fairness, integrity, or public reputation of
judicial proceedings in the context of a plain Guidelines error.” Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1908 (2018). The plain error in calculating Hines’s
guidelines range is no exception. As such, it merits reversal.
IV. CONCLUSION
For the foregoing reasons, we vacate Hines’s sentence and remand for
further proceedings not inconsistent with this opinion.
VACATED AND REMANDED.
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