USA v. Nekero McCalop

Filing

Opinion issued by court as to Appellant Nekero Dejuan McCalop. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-10544

Date Filed: 06/20/2017

Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10544
Non-Argument Calendar
________________________
D.C. Docket No. 8:15-cr-00395-RAL-MAP-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NEKERO DEJUAN MCCALOP,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 20, 2017)
Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.
PER CURIAM:

Case: 16-10544

Date Filed: 06/20/2017

Page: 2 of 6

Nekero McCalop appeals his 48-month sentence, which the district imposed
after he pled guilty to being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2). McCalop was subject to a base offense level of 22
under the Sentencing Guidelines for having committed the offense of possession a
firearm as a convicted felon after sustaining a felony conviction for a “crime of
violence.” See U.S.S.G. § 2K2.1(a)(3). That section uses the “crime of violence”
definition in U.S.S.G. § 4B1.2. Id. § 2K2.1, cmt. n.1 (2015).
Section 4B1.2 defines “crime of violence” as “any offense under federal or
state law, punishable by imprisonment for a term exceeding one year,” that “has as
an element the use, attempted use, or threatened use of physical force against the
person of another,” or “is burglary of a dwelling, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents a serious potential risk
of physical injury to another.” U.S.S.G. § 4B1.2(a) (2015) (emphasis added). The
clause beginning with “or otherwise” in this definition is known as the residual
clause.
On appeal, McCalop asserts that his prior Florida conviction for burglary of
an unoccupied dwelling does not qualify as a “crime of violence” under U.S.S.G.
§ 4B1.2 in the 2015 version of the Sentencing Guidelines. He also argues that the
residual clause in § 4B1.2 is unconstitutionally vague. Finally, he argues for the
first time on appeal that Amendment 798 to the Sentencing Guidelines—which
2

Case: 16-10544

Date Filed: 06/20/2017

Page: 3 of 6

became effective during this appeal and removed both the residual clause and
burglary from the enumerated offenses in the “crime of violence” definition—
should apply to him. We stayed appellate proceedings pending the Supreme
Court’s decision in Beckles v. United States, 137 S. Ct. 886 (2017). Now that
Beckles has been decided, McCalop’s appeal is ripe for review. For the reasons
that follow, we affirm.
First, we must reject McCalop’s assertion that U.S.S.G. § 4B1.2’s residual
clause is unconstitutionally vague. His argument is foreclosed by Beckles, in
which the Supreme Court held that the Sentencing Guidelines are not subject to
vagueness challenges under the Due Process Clause and that § 4B1.2(a)’s residual
clause is not void for vagueness. Beckles, 137 S. Ct. at 895.
Second, under binding circuit precedent we reject McCalop’s argument that
his conviction in Florida for burglary of an unoccupied dwelling cannot qualify as
a crime of violence under the residual clause. In United States v. Matchett, this
Court held that burglary of an unoccupied dwelling under Florida law does qualify
under the residual clause. 802 F.3d 1185, 1197 (11th Cir. 2015), cert. denied, 137
S. Ct. 1344 (2017). We are bound to follow prior precedent unless it is overruled
by this Court sitting en banc or by the Supreme Court. United States v. VegaCastillo, 540 F.3d 1235, 1236 (11th Cir. 2008).

3

Case: 16-10544

Date Filed: 06/20/2017

Page: 4 of 6

Third, under either de novo or plain error review, the district court’s failure
to apply Amendment 798 to McCalop’s guidelines calculation was not error. 1 As
relevant here, the amendment, which became effective on August 1, 2016, deleted
the residual clause in U.S.S.G. § 4B1.2(a)(2) and eliminated burglary of a dwelling
as an enumerated offense. U.S.S.G. App. C, amend. 798. The Sentencing
Commission explained that it eliminated the residual clause as a matter of policy,
noting that the clause implicated many of the concerns cited by the Supreme Court
in Johnson v. United States, 135 S. Ct. 2551 (2015) (holding that the residual
clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), was
unconstitutionally vague). See U.S.S.G. App. C, amend. 798 (Reasons for
Amendment). The Sentencing Commission further explained that eliminating the
clause would alleviate application difficulties and uncertainty following Johnson.
Id. In eliminating burglary of a dwelling as an enumerated offense from
§ 4B1.2(a)(2), the Sentencing Commission noted that burglary offenses rarely
result in physical violence. Id.
When reviewing the district court’s application of the Guidelines, generally
we apply the version of the Guidelines in effect on the date of sentencing. United
1

Generally, we review de novo a district court’s interpretation of the guidelines,
including the amendments thereto. United States v. Pringle, 350 F.3d 1172, 1178 (11th Cir.
2003). But we review for plain error an argument not raised before the district court. United
States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir. 2014). Although the Sentencing
Commission published the proposed amendment prior to McCalop’s sentencing, the amendment
was not effective until after his sentencing; thus, it is unclear which standard applies to his
argument on appeal.
4

Case: 16-10544

Date Filed: 06/20/2017

Page: 5 of 6

States v. Jerchower, 631 F.3d 1181, 1184 (11th Cir. 2011). If, however, an
amendment simply clarifies the Guidelines, we give it retroactive effect,
considering it on appeal regardless of the date of sentencing or whether the
defendant raised the issue the amendment clarified in the district court. Id. This is
because clarifying amendments do not represent a substantive change in the
Guidelines, but instead provide persuasive evidence of how the Sentencing
Commission originally envisioned application of the relevant guideline. Id.
In assessing whether an amendment to the Sentencing Guidelines is
substantive or clarifying, we consider several factors, including whether: (1) the
amendment alters the text of the guideline (suggesting a substantive change) or the
commentary (which, if the amendment merely supplements rather than alters or
contradicts preexisting commentary, suggests a clarification); (2) the Commission
described the amendment as clarifying or not; (3) the Commission included the
amendment in the list of retroactive amendments in § 1B1.10(c) (suggesting a
substantive change); and (4) the amendment overturns circuit precedent
(suggesting a substantive change unless the amendment clarifies a meaning
inherent in the original guideline). Id. at 1185.
Amendment 798 was substantive, rather than clarifying, so we do not
consider it on appeal. In promulgating the Amendment, the Sentencing
Commission deleted an entire provision of the text of the guideline, stated that it
5

Case: 16-10544

Date Filed: 06/20/2017

Page: 6 of 6

was doing so as a matter of policy, removed burglary from the list of enumerated
offenses, and declined to include the amendment in the list of retroactive
amendments. See U.S.S.G. App. C, amend. 798; U.S.S.G. § 1B1.10(d). These are
hallmarks of a substantive amendment, not a clarifying one. Jerchower, 631 F.3d
at 1185. Thus, the amendment does not apply retroactively on appeal. Id. at 1184.
For these three reasons, we affirm McCalop’s sentence.
AFFIRMED.

6