US v. Eddie Fluker

Filing

PUBLISHED AUTHORED OPINION filed. Motion disposition in opinion administratively terminating Motion to remand case [1000197943-3], administratively terminating Motion to remand case [1000195672-3]; administratively terminating Motion to vacate [1000195672-2]; administratively terminating Motion to expedite decision [1000195672-4] Originating case number: 1:92-cr-00031-MFU-1. [1000306862]. [17-4690]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-4690

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDDIE DEAN FLUKER,
Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at
Abingdon. Michael F. Urbanski, Chief District Judge. (1:92-cr-00031-MFU-1)

Argued: May 8, 2018

Decided: June 5, 2018

Before KING, AGEE, and HARRIS, Circuit Judges.

Vacated and remanded by published opinion. Judge Agee wrote the opinion, in which
Judge King and Judge Harris joined.

ARGUED:
Christine Madeleine Lee, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF:
Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. Thomas T. Cullen, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.

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AGEE, Circuit Judge:
Following a successful 28 U.S.C. § 2255 motion to vacate, set aside, or correct his
sentence, Eddie Dean Fluker was resentenced to 308 months’ imprisonment. Fluker
appeals, arguing principally that the district court improperly designated him as a career
offender under the 2016 United States Sentencing Guidelines Manual, and that this
incorrect designation led to the further error of applying the wrong version of the
Guidelines Manual to determine his Guidelines range. He maintains that this procedural
sentencing error entitles him to resentencing. We agree with Fluker, and for the reasons
set out below, vacate his sentence and remand for resentencing.

I.
In 1992, Fluker was convicted of possession with intent to distribute cocaine base,
in violation of 21 U.S.C. § 841(a)(1) (Count 1); carrying a firearm in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 2); and possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 3) (collectively
“Virginia convictions”). Fluker was sentenced as an armed career criminal under the
residual clause of the Armed Career Criminal Act (“ACCA”). See 18 U.S.C.
§ 924(e)(2)(B)(ii). As an armed career criminal, Fluker was subject to a mandatory
minimum 15-year sentence, as well as to heightened penalties under the then-mandatory
sentencing Guidelines. The district court sentenced Fluker to 340 months’ imprisonment
on Counts 1 and 3, to run concurrently, and to a mandatory sixty months’ imprisonment
on Count 2, to run consecutively, yielding a total sentence of 400 months.
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Five years later, the district court modified Fluker’s sentence under 18 U.S.C.
§ 3582(c)(2) and resentenced him to 327 months’ imprisonment on Counts 1 and 3, to run
concurrently. The consecutive 60-month sentence on Count 2 remained unchanged, so
Fluker’s total sentence became 387 months.
The Supreme Court of the United States held in 2015 that the residual clause of
the ACCA was unconstitutionally vague, Johnson v. United States, 135 S. Ct. 2551
(2015), and, in 2016, that this decision was retroactively applicable on collateral review,
Welch v. United States, 136 S. Ct. 1257 (2016). We granted Fluker’s motion for
permission to file a successive § 2255 motion raising a Johnson claim. In re: Eddie Dean
Fluker, No. 16-414 (4th Cir. May 5, 2016).
The district court granted Fluker’s § 2255 motion, concluding that—without the
residual clause—Fluker’s prior convictions no longer served as ACCA predicates. It
vacated Fluker’s sentence and directed a probation officer to prepare a revised presentence report (PSR).
Although the revised PSR did not apply the ACCA to Fluker’s advisory
Guidelines calculation, it designated Fluker as a career offender under § 4B1.1 and
§ 4B1.2 based on two prior convictions for Georgia robbery. As a result of changes to the
Guidelines Manual between Fluker’s original sentencing and resentencing, applying the
career-offender designation to Fluker’s Guidelines calculation resulted in a higher
Guidelines range than the one applied to Fluker in his original sentencing hearing. Under
these circumstances, the Guidelines direct that the court should use the Manual in effect
at the time of the original sentencing to calculate the Guidelines range so as to avoid
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violating the Ex Post Facto Clause. U.S.S.G. § 1B1.11(b)(1); see also Peugh v. United
States, 569 U.S. 530, 533 (2013) (holding that using a higher Guidelines range at
sentencing than was authorized for the offense at the time of its commission violates the
Ex Post Facto Clause). Under the 1991 Guidelines Manual, Fluker was also subject to the
career-offender designation, and his Guidelines range was 210 to 262 months’
imprisonment.
Fluker objected to the career-offender designation, arguing that Georgia robbery is
not a “crime of violence” under the 2016 Guidelines Manual definition. And because
Fluker’s Guidelines range without application of the career-offender designation would
be lower under the 2016 Guidelines Manual than under the 1991 Guidelines Manual,
Fluker argued the Court did not need to change editions in order to avoid an Ex Post
Facto Clause problem.
The district court overruled Fluker’s objection and held that Georgia robbery was
a crime of violence under the 2016 Guidelines Manual. It noted the absence of any
published or unpublished Fourth Circuit opinions on point and relied on an unpublished
Eleventh Circuit decision holding that Georgia robbery is a crime of violence. See United
States v. Cooper, 689 F. App’x 901 (11th Cir. 2017). Given the Ex Post Facto concerns,
the court used the 1991 Guidelines Manual to calculate Fluker’s Guidelines range for
resentencing, as required by Peugh, 569 U.S. at 533.
Before resentencing Fluker, the district court allowed the Government to call
Officer Thomas Caldwell to testify as a victim-witness to Fluker’s offense conduct. In so
doing, it overruled Fluker’s objection that Officer Caldwell could not testify during
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resentencing because he had not testified during the original sentencing hearing. The
district court explained that the Government could call Officer Caldwell given that the
proceeding was a full resentencing.
On November 1, 2017, the district court sentenced Fluker to 240 months’
imprisonment (the statutory maximum) on Count 1, a concurrent sentence of 248 months’
imprisonment on Count 3, and the statutorily-mandated 60 months’ imprisonment, to run
consecutively, on Count 2. This sentence yielded a 308-month term of imprisonment,
which essentially equaled Fluker’s time served on the Virginia convictions.
Following the resentencing hearing, however, Fluker was not released from the
custody of the Bureau of Prisons (BOP) because soon after he began serving his sentence
for the Virginia convictions, he committed additional crimes while in custody. For those
offenses, the U.S. District Court for the Northern District of Florida sentenced him to 120
months’ imprisonment, to be served “consecutive to the term of imprisonment . . . from
the Western District of Virginia” (“Florida sentence”). Supp. J.A. 33. After Fluker was
resentenced for his Virginia convictions, the BOP recalculated his custody computation,
including administrative Good Conduct Time, and determined that on January 6, 2015,
Fluker finished serving his Virginia sentence and began serving his Florida sentence. The
BOP currently projects that Fluker will be released in September 2023.
Fluker noted a timely appeal, and this Court has jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742.

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II.
On appeal, Fluker argues the district court committed two errors during
resentencing. First, he contends that it procedurally erred in calculating his Guidelines
range. In particular, he posits that he is not a career offender under the 2016 Guidelines
Manual because his Georgia robbery convictions do not constitute “crimes of violence.”
He maintains that this initial error resulted in several additional errors related to his
Guidelines range, including using the incorrect (1991) edition of the Guidelines Manual.
Second, he challenges the district court’s decision to allow Officer Caldwell to testify
during the resentencing hearing.
The Government acknowledges that two decisions from this Court issued since the
resentencing hearing support Fluker’s contention that he was improperly designated as a
career offender. And it concedes that if the career-offender designation was improper,
then the district court should have used the 2016 Guidelines Manual to calculate Fluker’s
Guidelines range. Notwithstanding these concessions, the Government contends that the
Court should not vacate Fluker’s sentence because Fluker’s appeal is moot because he is
no longer in BOP custody as a result of his Virginia sentence. It further asserts the district
court did not abuse its discretion in allowing Officer Caldwell to testify.
A.
1.
We review Fluker’s sentence “under a deferential abuse-of-discretion standard,”
looking first to whether the district court committed a “significant procedural error” such
as improperly calculating the Guidelines range. United States v. Evans, 526 F.3d 155, 161
6

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(4th Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 41, 51 (2007)). “In assessing
whether a district court properly calculated the Guidelines range, including its application
of any sentencing enhancements, [we] review[ ] the district court’s legal conclusions de
novo and its factual findings for clear error.” United States v. Horton, 693 F.3d 463, 474
(4th Cir. 2012) (internal quotation marks and alteration omitted).
Here, the district court properly began by considering the 2016 Guidelines Manual
because, in the usual case, courts sentence a defendant using the Guidelines Manual that
is “in effect on the date the defendant is sentenced.” 18 U.S.C. § 3553(a)(4)(A)(ii). Under
this edition of the Guidelines, Fluker would be a career offender if, among other things,
his two Georgia robbery convictions were for a crime of violence. U.S.S.G. § 4B1.1(a).
In relevant part, a “crime of violence” is an offense “punishable by imprisonment for a
term exceeding one year, that . . . is . . . robbery” (the enumerated offense clause).
U.S.S.G. § 4B1.2(a)(2). 1
The Court uses a two-step approach to determine whether Georgia robbery aligns
with the enumerated offense of robbery. See United States v. Peterson, 629 F.3d 432, 436
(4th Cir. 2011). First, the Court identifies the “generic” definition of robbery. Id. Second,
the Court determines whether Georgia robbery categorically matches generic robbery,

1

Section 4B1.2(a) also defines a “crime of violence” as an offense that “has as an
element the use, attempted use, or threatened use of physical force against the person of
another.” U.S.S.G. § 4B1.2(a)(1). The district court held that Georgia robbery did not qualify as
a crime of violence under this clause, and the Government did not appeal that determination. As
such, the only question before us is whether Georgia robbery aligns with the enumerated offense
of “robbery.”
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meaning that an individual convicted of the state offense necessarily was convicted of the
generic offense. Id.
When Fluker was resentenced, this Court had no case law addressing either of
these inquiries. In the intervening months, that’s changed. For purposes of the first step,
we have now defined “generic robbery” as “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 a
person’s presence by means of force or putting in fear.” United States v. Gattis, 877 F.3d
150, 156–57 (4th Cir. 2017) (internal quotation marks and alteration omitted). We are
bound to use that definition of generic robbery. Relevant to the second step, we have now
held that Georgia robbery does not align with generic robbery because Georgia robbery
can be committed “[b]y sudden snatching,” and case law has construed that term more
broadly than generic robbery. See United States v. Jackson, 713 F. App’x 172 (4th Cir.
2017). But Jackson was unpublished and used a different definition of generic robbery
than we eventually adopted in Gattis, which was decided after Jackson. 2 See id. at 177.

2

Jackson used the Model Penal Code (MPC) definition of robbery, which provides that a
robbery occurs when a person, in the course of committing a theft:
(a) inflicts serious bodily injury upon another; (b) threatens another with or
purposely puts him in fear of immediate serious bodily injury; or (c) commits or
threatens immediately to commit any felony of the first or second degree.
713 F. App’x at 177 (quoting Model Penal Code § 222.1 Robbery (Am. Law. Inst. 2016)). Gattis
rejected that definition in favor of the definition in LaFave’s Substantive Criminal Law treatise
after concluding that the MPC’s requirement of “serious bodily injury” “has not been widely
adopted,” and that LaFave’s definition—which requires less force to commit the crime—was
better in line with the definition the majority of jurisdictions have adopted. 877 F.3d at 156; see 3
Wayne R. LaFave, Substantive Criminal Law § 20.3, at 173 (2d ed. 2003).
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So, while these cases inform our analysis, they do not necessarily compel a particular
result here.
With the Gattis definition of robbery in hand, though, we can turn immediately to
the second step of the analysis and determine whether Georgia robbery aligns with that
definition. In so doing, we approach the Georgia offense “categorically, looking only to
the fact of conviction and the statutory definition of the prior offense.” United States v.
Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013) (internal quotation marks omitted).
Under this approach, we are concerned with the elements of the offense of conviction, not
Fluker’s specific conduct. Id. 3 To determine whether a prior conviction qualifies as a

3

This “categorical approach” is modified “for ‘divisible’ statutes,” those being “statutes
that list elements in the alternative[ ] and thereby define multiple crimes.” See United States v.
Dozier, 848 F.3d 180, 183 (4th Cir. 2017) (alteration in original) (internal quotation marks
omitted). The Government does not contend the modified categorical approach should apply
here, nor could it.
The Supreme Court has explained that “elements are the constituent parts of a crime’s
legal definition—the things the prosecution must prove to sustain a conviction.” Mathis v. United
States, 136 S. Ct. 2243, 2248 (2016) (internal quotation marks omitted). In Georgia, robbery can
occur “by” any of the following: (1) using force; (2) intimidating, or using threats or coercion, or
placing a person in fear of immediate serious bodily injury to himself or another; or (3) suddenly
snatching. Ga. Code § 16-8-40(a). The use of the disjunctive does not resolve the question of
whether these alternative paths to a conviction are elements or means. See Omargharib v.
Holder, 775 F.3d 192, 194 (4th Cir. 2014) (“[M]ere use of the disjunctive ‘or’ in the definition of
a crime does not automatically render it divisible.”).
Georgia case law and its pattern jury instructions demonstrate that a jury need not agree
unanimously about which of these methods a defendant used to commit the charged robbery. See
Mathis, 136 S. Ct. at 2256 (observing that courts must consult “authoritative sources of state
law” to resolve this question). Instead, they are all means of satisfying a single element of the
offense of robbery. For example, in Hogan v. State, the Court of Appeals of Georgia noted that
“the crime of robbery” requires that the individual satisfy the other elements of the offense “by
employment of one of the various alternative means” and is a crime that “may be accomplished
in alternative ways.” 343 S.E.2d 770, 771–72 (Ga. Ct. App. 1986); see also Kilpatrick v. State,
618 S.E.2d 719, 720 (Ga. Ct. App. 2005); Georgia Pattern Jury Instructions—Criminal, Vol. II,
2.60.10 (4th ed. 2017) (listing three elements of Georgia robbery, one of which lists all the
delineated means of accomplishing it). As we recognized in Jackson, “[u]nder this instruction, a
(Continued)
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Guideline predicate offense, the Court compares the defendant’s offense to the generic
offense to determine “whether a defendant convicted of the state offense necessarily
satisfied the elements of the generic offense.” United States v. Mack, 855 F.3d 581, 585–
86 (4th Cir. 2017).
Georgia robbery occurs when,
with intent to commit theft, [an individual] takes property of another from
the person or the immediate presence of another:
(1) By use of force;
(2) By intimidation, by the use of threat or coercion, or by placing such
person in fear of immediate serious bodily injury to himself or to
another; or
(3) By sudden snatching.
Ga. Code § 16-8-40(a) (1991).
Because the Georgia robbery statute is broader than the generic definition of
robbery we adopted in Gattis, the offenses do not align categorically. In Georgia, robbery
“by sudden snatching” only requires the force “necessary for the robber to transfer the
property taken from the owner to his possession.” Kendrick v. State, 630 S.E.2d 863, 865
(Ga. Ct. App. 2006) (internal quotation marks omitted); see also Brown v. State, 710
S.E.2d 674, 678–79 (Ga. Ct. App. 2011) (describing “immediate presence” as
“stretch[ing] fairly far” and noting “robbery convictions are usually upheld even out of
the physical presence of the victim if what was taken was under his control or his
responsibility and if he was not too far distant” (internal quotation marks omitted)). This

jury need not agree unanimously that the felonious taking was committed by the use of force, by
intimidation, or by sudden snatching, but only that one of those means was employed.” 713 F.
App’x at 176. The categorical approach thus applies.
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level of force does not satisfy generic robbery’s requirement that property must be taken
“under circumstances involving immediate danger to the person,” such as “taking of
property from a person or a person’s presence by means of force or putting in fear.”
Gattis, 877 F.3d at 156–57 (alteration omitted) (emphasis added).
Indeed, Gattis specifically noted that robbery by snatching would constitute
generic robbery only “if the defendant uses force to overcome the victim’s resistance or
force more than necessary to simply remove an item from the victim’s grasp.” Id. at 157
(emphasis added). Because Georgia robbery does not always require this amount of force,
it is broader than generic robbery, and therefore is not a crime of violence. The
Government acknowledges as much, noting that “Gattis makes clear that under its
definition of generic robbery, some sudden snatching offenses can constitute generic
robbery, but some will not.” Response Br. 40. Georgia robbery is thus broader than
generic robbery, and a conviction for Georgia robbery is not “robbery” under the
enumerated offense provision of U.S.S.G. § 4B1.2(a).
Although the current controlling case law was not available to the district court at
the time of sentencing, Fluker’s Georgia robbery convictions are not predicates for the
career-offender designation under current Fourth Circuit law. And because Fluker’s
Guidelines range should have been calculated without the career-offender designation,
there was no basis for turning to the 1991 Guidelines Manual in order to avoid a nonexistent Ex Post Facto Clause problem. The court should have used the 2016 Guidelines
Manual to calculate Fluker’s Guidelines range. Therefore, Fluker’s resulting sentence
was the product of cognizable procedural error.
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2.
The Government does not dispute the above analysis or the conclusion that the
district court erred, but it contends that Fluker’s claim is moot. As support, the
Government points to the BOP’s determination that Fluker stopped serving his Virginia
sentence in January 2015 and is currently serving only his Florida sentence. In the
Government’s view, Fluker has been released from custody for his Virginia sentence,
which renders moot his challenge to the length of that sentence. Further, the Government
asserts that Fluker’s continued custody on the Florida sentence is entirely unrelated to the
length of his Virginia sentence and thus is not a collateral consequence that would allow
the Court to exercise jurisdiction. Finally, it contends that the district court’s error makes
Fluker only eligible for a lower sentence and whether Fluker would actually receive a
lower sentence that might affect his ultimate release date is pure speculation. We disagree
with the Government.
The doctrine of mootness “derives from the requirement of [Article] III of the
Constitution under which the exercise of judicial power depends upon the existence of a
case or controversy.” DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (internal quotation
mark omitted). “In general a case becomes moot when the issues presented are no longer
live or the parties lack a legally cognizable interest in the outcome.” Murphy v. Hunt, 455
U.S. 478, 481 (1982) (internal quotation marks omitted). Usually, when a defendant’s
sentence expires during legal proceedings that challenge the length of the term of
imprisonment, the case becomes moot unless a cognizable collateral consequence
remains. See, e.g., Lane v. Williams, 455 U.S. 624, 630–32 (1982). As the Supreme Court
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has explained, this is so because defendants “are no longer subject to any direct restraint
as a result” of the challenged sentence after their release from imprisonment, and “[t]heir
liberty or freedom of movement is not in any way curtailed by a [sentencing] term that
has expired.” Id. at 631. Examples of cognizable collateral consequences to a conviction
include “being unable to engage in certain businesses, serve as an official of a labor
union, vote in any . . . election[,] or serve as a juror.” Nakell v. Att’y Gen. of N.C., 15 F.3d
319, 322 (4th Cir. 1994).
Fluker’s case presents the unusual scenario where his appealed sentence (the
Virginia sentence) has ended, but he remains lawfully in BOP custody serving a sentence
(the Florida sentence) to be served consecutive to the one he is challenging in this
appeal. 4 While Fluker’s Florida sentence arose from different offenses and was imposed
at a different time, the Florida sentencing court specifically tied the running of that
sentence to the amount of time Fluker served as a result of his Virginia convictions. The
Florida court’s instruction could not be plainer: “this term shall be consecutive to the
term of imprisonment in Dkt. #92-00031-001 from the Western District of Virginia.”
Supp. J.A. 33. The start date for Fluker’s Florida sentence was always and remains
contingent on when he finishes serving the Virginia sentence. The BOP’s adjustment to
Fluker’s administrative records following the prior resentencing reinforces the direct

4

Fluker’s circumstance does not fit neatly into our past cases acknowledging a case is not
moot when the prisoner is still in BOP custody. Those cases deal with serving only the sentence
then being challenged on appeal. Nor does this case fit neatly into the “collateral consequences”
analysis because those cases presuppose a petitioner’s actual release from incarceration and look
to other circumstances that might render the case not moot.
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nexus between the two sentences. In consequence, Fluker continues to have a legally
cognizable interest in the outcome of this appeal. If he prevails, his ultimate release date
may once again shift to an earlier date. 5
Fluker’s interest is not speculative. Certainly, as the Government observes, Fluker
has to prevail on appeal, and then persuade the district court to resentence him to a lower
term of imprisonment before his ultimate release date is moved forward. But these
hurdles do not make his claim moot. They are common to nearly all defendants whose
sentences are appealed and then vacated and remanded for resentencing.
The cases the Government relies on to suggest otherwise are inapposite because
they concerned speculative collateral consequences in other proceedings as opposed to
the normal course of appeal and remand in the case pending then before the court. E.g.,
Spencer v. Kemna, 523 U.S. 1, 14 (1998) (rejecting as speculative petitioner’s argument
that his appeal was not moot following his release from imprisonment because the
5

Fluker points out that he may be eligible for immediate release from BOP custody after
resentencing. The Government accurately counters that this may not be true because the district
court could impose the same sentence by varying or departing upward. It is for the district court
to select an appropriate sentence, but it can do so only after properly calculating Fluker’s
Guidelines range.
To show that this case is not moot, it is sufficient to rely on the conclusion set out above:
the length of the Virginia sentence—whatever it is—affects the Florida sentence’s start date and
thus the date on which Fluker will ultimately be released from custody. Indeed, as Fluker notes,
it is possible he may be immediately released from custody. As noted, his sentence for Count 2 is
a statutorily-mandated 60-month term of imprisonment to be served consecutive to any other
sentence. As the Government observes in its Response Brief, Fluker’s Guidelines range for
Counts 1 and 3 could drop to 51 to 63 months as a result of using the 2016 Guidelines Manual
non-career-offender provisions. If Fluker were sentenced to a within-Guidelines sentence of 63
months’ imprisonment for those counts, his Virginia sentence would be 123 months. Hence,
Fluker’s total federal sentence (Virginia plus Florida sentences) would be 243 months. But he
has already served more than 300 months in BOP custody. This possibility further demonstrates
the real and concrete consequences of the Virginia sentence’s length on his eventual release date.
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challenged parole revocation “could be used to his detriment in a future parole
proceeding”); United States v. Eligwe, 627 F. App’x 263, 264 (4th Cir. 2016) (rejecting
as speculative Eligwe’s argument that his appeal was not moot as a result of his release
from imprisonment because the challenged supervised release revocation was not likely
to impact his then-pending immigration proceedings given his underlying convictions).
That concept has no application here, where a prisoner is alleging a concrete and alreadyidentifiable effect of a sentencing error that could be rectified by prevailing on appeal and
receiving a different sentence on remand. To hold otherwise would moot most sentencing
appeals given that a defendant must persuade both the appellate court of an error and then
persuade the district court to exercise its discretion to impose a different sentence. But
those hurdles are not the sort of speculative impact identified in our case law that would
affect the mootness inquiry. For these reasons, Fluker’s claim is not moot.
***
In conclusion, Fluker’s claim is justiciable. The district court committed
procedural error during sentencing by finding that Fluker’s Georgia robbery convictions
qualified him for the career-offender designation. As a result, the district court also erred
in using the 1991 Guidelines Manual to determine Fluker’s Guidelines range.
Consequently, we vacate the sentence and remand for resentencing consistent with this
opinion. 6

6

Fluker challenges a separate aspect of his Guidelines range as well, asserting that the
PSR incorrectly contained two criminal history points for having committed his offense while on
parole. He did not challenge this issue before the district court, and the two points did not matter
(Continued)
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B.
Fluker raises an additional challenge to the district court’s evidentiary decision at
resentencing. As that issue is likely to recur on resentencing, we will address it now. See
U.S. ex rel. Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d 394, 405–06 (4th Cir.
2012).
Fluker argues the district court abused its discretion by allowing Officer Caldwell
to testify at the resentencing hearing. Noting that Caldwell did not testify at the original
sentencing hearing, Fluker maintains that the district court improperly allowed the
Government to introduce new evidence through Caldwell during resentencing.
The district court did not abuse its discretion in allowing Officer Caldwell to
testify. See United States v. Seay, 553 F.3d 732, 741–42 (4th Cir. 2009) (articulating the
standard for reviewing the court’s evidentiary decisions during a sentencing hearing).
Notably, this was not a limited resentencing hearing following an appeal, but rather the
grant of a new sentencing hearing following the grant of a § 2255 motion. During
resentencing, absent some other limiting principle, “the district court may entertain new
arguments as necessary to effectuate its sentencing intent,” and it can—but is not

in setting Fluker’s criminal history category below because the improper career-offender
designation automatically set Fluker’s criminal history category at VI regardless of any other
factors. But whether those points are proper will matter at resentencing. Moreover, the
Government concedes that these criminal history points are not supported by the record.
Based on the record before us and the Government’s concession, it was plainly erroneous
to include these criminal history points in Fluker’s criminal history computation. See United
States v. McLaurin, 764 F.3d 372, 387–88 (4th Cir. 2014) (stating the Court reviews for plain
error a district court’s criminal history computations that were not objected to at the time and
setting out the standard for plain error).
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obligated to—“consider any new evidence or arguments.” United States v. Susi, 674 F.3d
278, 285 (4th Cir. 2012) (internal quotation marks omitted). In short, this was not a
situation where allowing the Government to introduce new evidence would result in the
Government getting a second bite at the apple to produce sufficient evidence to support a
particular sentencing decision. See United States v. Parker, 30 F.3d 542, 553–54 (4th Cir.
1994) (holding the Government could not have a second opportunity to produce evidence
that it had failed to present in support of a Guidelines enhancement following a
defendant’s successful appeal that a preponderance of the evidence did not support the
enhancement). As such, Fluker’s case support is inapposite. See United States v. Canty,
570 F.3d 1251, 1256–57 (11th Cir. 2009) (rejecting the Government’s argument that it
should be allowed a second opportunity to present evidence supporting a Guidelines
enhancement that the appellate court concluded was not supported by a preponderance of
the evidence submitted in the original sentencing hearing). The district court
appropriately exercised its discretion in allowing Officer Caldwell to testify.

III.
For the reasons set out above, we vacate Fluker’s sentence and remand for further
proceedings consistent with this opinion. Having decided the merits following oral

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Appeal: 17-4690

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argument, we deny as moot Fluker’s motion to vacate and remand and motion to
expedite. 7
VACATED AND REMANDED

7

In view of the potential attendant consequences, we encourage the district court upon
remand to expedite the resentencing hearing and entry of the new sentencing order.
18