United States v. Lanking ( 2023 )

Appellate Case: 21-1404 Document: 010110793339 Date Filed: 01/05/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 5, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 21-1404
v. (D.C. No. 1:17-CR-00483-RBJ-3)
(D. Colo.)
BRANDON L. LANKING,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
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After examining the briefs and appellate record, this court has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, we order
the case submitted without oral argument.
Brandon Lanking was found guilty, following a jury trial, of two counts of
Hobbs Act robbery and one count of conspiracy to commit Hobbs Act robbery. A
United States Probation Officer prepared a Presentence Investigation Report
(“PSR”). The PSR concluded Lanking was a career offender for purposes of
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 21-1404 Document: 010110793339 Date Filed: 01/05/2023 Page: 2
U.S.S.G. §§ 4B1.1 and 4B1.2. Based on the applicability of the career-offender
enhancement, Lanking’s advisory sentencing guidelines range was 210 to 262
months’ imprisonment. Without application of the career-offender enhancement,
Lanking’s advisory sentencing guidelines range was 100 to 125 months’
imprisonment. In the absence of any objection on Lanking’s part, the district
court adopted the PSR, specifically including its application of the career-
offender enhancement. Nevertheless, based on a consideration of the factors set
out in 18 U.S.C. § 3553(a), the district court varied downward from the advisory
sentencing range and imposed a sentence of 180 months in prison.
For the first time on appeal, Lanking asserts the district court erred in
calculating his advisory sentencing range by reference to the career-offender
provisions set out in Part B of Chapter Four of the Sentencing Guidelines. He
also argues he can satisfy the heavy burden of demonstrating this forfeited claim
of error is plain for purposes of Fed. R. Crim. P. 52. Cf. United States v. Crowe,
735 F.3d 1229, 1242 (10th Cir. 2013) (noting “[t]he plain error standard presents
a heavy burden for an appellant”). In that regard, Lanking notes this court has
definitively held that Hobbs Act robbery is not a crime of violence for purposes
of §§ 4B1.1 and 4B1.2. United States v. O’Connor, 874 F.3d 1147, 1158 (10th
Cir. 2017). Furthermore, as a result of the error, Lanking’s advisory sentencing
range more than doubled, from 100-125 months’ imprisonment to 210-262
month’s imprisonment. The use of an incorrect advisory sentencing range “set
the wrong framework for the sentencing proceedings.” Molina-Martinez v.
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Appellate Case: 21-1404 Document: 010110793339 Date Filed: 01/05/2023 Page: 3
United States, 136 S. Ct. 1338, 1346 (2016). The resulting disparity affected
Lanking’s substantial rights. Finally, the Supreme Court has made clear that
guidelines errors that affect an appellant’s substantial rights ordinarily satisfy the
fourth prong of plain-error review. Rosales-Mireles v. United States, 138 S. Ct.
1897, 1911 (2018) (“In the ordinary case, as here, the failure to correct a plain
Guidelines error that affects a defendant’s substantial rights will seriously affect
the fairness, integrity, and public reputation of judicial proceedings.”). In its
response brief, the government concedes the district court erred in applying the
career-offender enhancement and concedes Lanking has satisfied his burden of
demonstrating plain error.
Upon review of the parties’ briefs and contentions, the appellate record,
and the relevant authorities, this court concludes Lanking’s arguments and the
government’s corresponding concession are well-taken. Accordingly, exercising
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court
REMANDS the matter to the district court to vacate Lanking’s sentence and to
resentence him without reference to the career-offender provisions set out in
Part B of Chapter Four of the Sentencing Guidelines. Furthermore, given the
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Appellate Case: 21-1404 Document: 010110793339 Date Filed: 01/05/2023 Page: 4
government’s concession of error, this court’s mandate is ordered to issue
forthwith.
Entered for the Court
Michael R. Murphy
Circuit Judge
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