USCA11 Case: 20-14843 Date Filed: 01/05/2022 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14843
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
versus
JEREMIAH BUTLER-JACKSON,
Defendant-Appellant,
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00008-WFJ-CPT-1
____________________
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2 Opinion of the Court 20-14843
Before JILL PRYOR, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
Jeremiah Butler-Jackson appeals his 50-month sentence for
being a felon in possession of a firearm. First, he argues that his
sentence is procedurally unreasonable because the district court (1)
calculated his criminal history score using prior sentences where
adjudication was withheld, (2) failed to perform a range-by-range
analysis before imposing an upward variance, and (3) failed to ade-
quately explain its sentence. Second, he argues that his sentence is
substantively unreasonable because the district court imposed an
upward variance without a sufficiently compelling justification. Be-
cause the district court incorrectly calculated Butler-Jackson’s crim-
inal history score, causing it to sentence him using an incorrect,
higher guidelines range, we vacate and remand for resentencing.
I.
When police officers attempted to stop Butler-Jackson for a
traffic infraction after seeing him riding on the handlebars of a bi-
cycle, Butler-Jackson fled on foot, tossing a loaded gun into the
yard of a private residence. The officers apprehended Butler-Jack-
son, retrieved the gun, and later obtained video of Butler-Jackson
discarding the gun as he fled from the officers. Butler-Jackson had
also posted a video to Instagram showing the gun he discarded
clipped to his waistband. Butler-Jackson confessed to buying the
gun and ammunition even though he knew he was not allowed to
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20-14843 Opinion of the Court 3
possess them as a convicted felon. He told the officers that he had
been high on drugs when he fled the traffic stop.
Butler-Jackson was indicted on one count of possessing a
firearm and ammunition as a felon, in violation of
18 U.S.C. §§
922(g)(1) and 924(a)(2). He was twenty years old at the time of sen-
tencing. His base offense level was 14. He received a two-point de-
crease for acceptance of responsibility, bringing his total offense
level to 12. His criminal history was extensive and included: battery
of a teacher; domestic violence; resisting arrest; petit theft; grand
theft of $3,500 worth of jewelry; car burglary; car theft; unlawful
possession of a firearm; felony battery for shooting a man with a
firearm he unlawfully possessed; and robbery of a convenience
store. He committed the criminal conduct at issue in this case
around two months after robbing the convenience store.
Butler-Jackson received a criminal history category of VI. He
objected to inclusion of criminal history points for four offenses,
each scored as one point, where adjudication had been withheld.
The court overruled that objection. The resulting guidelines range
was 30 to 37 months’ imprisonment. Butler-Jackson requested a
downward variance to 24 months’ imprisonment for personal
hardships including poor parenting, mental health issues, low IQ,
and substance abuse. The government requested a high-end guide-
lines sentence based on Butler-Jackson’s escalating criminal history,
his membership in a violent gang, and the danger to the commu-
nity posed by his insistence on carrying a gun.
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4 Opinion of the Court 20-14843
The district court varied upward over the government’s re-
quested high-end guidelines sentence and imposed a sentence of 50
months’ imprisonment. The court found that the sentence was suf-
ficient but not greater than necessary to satisfy the purposes of sen-
tencing. Butler-Jackson objected to the upward variance. Butler-
Jackson timely appealed.
II.
We review de novo the district court’s interpretation of the
guidelines and its application of the guidelines to the facts. United
States v. Barrington,
648 F.3d 1178, 1194–95 (11th Cir. 2011) (citing
United States v. Campbell,
491 F.3d 1306, 1315 (11th Cir. 2007)).
We review the reasonableness of a district court’s sentence for
abuse of discretion. United States v. Trailer,
827 F.3d 933, 935 (11th
Cir. 2016).
We review for plain error challenges to a sentence where a
party fails to make specific objections at sentencing in “such clear
and simple language that the trial court may not misunderstand it.”
United States v. Ramirez-Flores,
743 F.3d 816, 821 (11th Cir. 2014)
(quotation marks omitted). To establish plain error, the appellant
must show that: “(1) an error occurred; (2) the error was plain; (3)
it affected his substantial rights; and (4) it seriously affected the fair-
ness of the judicial proceedings.”
Id. at 822.
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20-14843 Opinion of the Court 5
A.
Butler-Jackson argues that his sentence is procedurally un-
reasonable because the district court (1) calculated his criminal his-
tory category using prior sentences for which adjudication was
withheld, (2) failed to perform a range-by-range analysis before im-
posing an upward variance, and (3) failed to adequately explain his
sentence. We conclude that the district court did not commit plain
error by failing to conduct a range-by-range analysis or in explain-
ing the sentence it imposed. But it did commit plain error in mis-
calculating Butler-Jackson’s criminal history score. On that ground,
we vacate and remand for resentencing.
1.
The district court did not plainly err by omitting a range-by-
range analysis. Where a district court wishes to impose an upward
departure under the guidelines, the court is required to move in-
crementally down the sentencing table “until it finds a guideline
range appropriate to the case.” U.S.S.G. § 4A1.3(a)(4)(B). But a var-
iance is not a departure. Id. Unlike a departure, which is based on
the departure provisions at Section 4A1.3, a court bases a variance
on the Section 3553(a) factors and the inadequacy of the applicable
guidelines range. United States v. Kapordelis,
569 F.3d 1291,
1316 (11th Cir. 2009). Though “[t]he justification for the variance
must be sufficiently compelling to support the degree of the vari-
ance,” it need not include a range-by-range analysis. United States
v. Irey,
612 F.3d 1160, 1186-87 (11th Cir. 2010) (en banc) (quotation
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6 Opinion of the Court 20-14843
marks omitted). The district court therefore did not commit plain
error by omitting a range-by-range analysis.
2.
Nor did the district court plainly err in explaining the sen-
tence it imposed. A district court must provide an adequate expla-
nation for its sentencing decisions so that there can be meaningful
appellate review. United States v. Cook,
998 F.3d 1180, 1183 (11th
Cir. 2021). Here, the district court did so. It considered the parties’
arguments and the Section 3553(a) factors. And it explained why an
upward variance was warranted: Butler-Jackson’s criminal history
score, the fact that his criminal activity was accelerating, and his
participation in the shooting and convenience store robbery. This
explanation was sufficient for meaningful appellate review.
3.
But the district court plainly erred when it scored four prior
offenses where adjudication was withheld. Ordinarily, offenses
where adjudication was withheld do not fall under the guidelines’
definition of a “prior sentence” and do not accrue criminal history
points. United States v. Baptiste,
876 F.3d 1057, 1062 (11th Cir.
2017). We have acknowledged a limited exception to this rule:
where the defendant pleads guilty or nolo contendere and the court
withholds adjudication, then the prior offense is considered a “di-
versionary disposition.”
Id. Such dispositions can count as prior
sentences and accrue criminal history points—unless they are juve-
nile offenses. The guidelines provide that “[a] diversionary
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20-14843 Opinion of the Court 7
disposition resulting from a finding or admission of guilt, or a plea
of nolo contendere, in a judicial proceeding is counted as a sentence
under § 4A1.1(c) even if a conviction is not formally entered, except
that diversion from juvenile court is not counted.” U.S.S.G. §
4A1.2(f).
Butler-Jackson argues, both below and on appeal, that the
district court erred by scoring four offenses because adjudication
was withheld, which are reflected in paragraphs 29, 32, 33, and 34
of the pre-sentence report. The record establishes that these were
juvenile offenses. To the extent that Butler-Jackson failed to argue
that the non-adjudicated offenses should not be scored because
they are juvenile instead of adult offenses, we review for plain er-
ror. Fed. R. Crim. P. 52 (“A plain error that affects substantial rights
may be considered even though it was not brought to the court’s
attention.”); see also Davis v. United States,
140 S. Ct. 1060, 1061
(2020) (“The text of Rule 52(b) does not immunize factual errors
from plain-error review.”). Here, an error occurred, and the error
was plain. Ramirez-Flores, 743 F.3d at 822. Because Butler-Jackson
was either found guilty or pled guilty or nolo contendere to the
offenses at issue, his non-adjudicated offenses are considered diver-
sionary dispositions. However, those diversionary dispositions
were all diversions from juvenile court. Accordingly, the district
court plainly erred by scoring them. See U.S.S.G. § 4A1.2(f) (a “di-
version from juvenile court is not counted”).
The error affected Butler-Jackson’s substantial rights. The
Supreme Court has held that a “court’s reliance on an incorrect
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8 Opinion of the Court 20-14843
range in most instances will suffice to show an effect on the defend-
ant’s substantial rights,” and that “[a]bsent unusual circumstances,
he will not be required to show more.” Molina-Martinez v. United
States,
578 U.S. 189, 201 (2016). A defendant who makes such a
showing is entitled to relief unless the government can show that
the error was harmless. United States v. Monzo,
852 F.3d 1343,
1351 (11th Cir. 2017). “The sentencing process is particular to each
defendant” and a reviewing court, in determining whether an error
affected a defendant’s substantial rights, “must consider the facts
and circumstances of the case before it.” Molina-Martinez, 578 U.S.
at 201 (citing United States v. Davila,
569 U.S. 597 (2013)).
The record here shows that the district court’s error affected
Butler-Jackson’s substantial rights. First and foremost, in varying
upward, the district court specifically relied on Butler-Jackson’s
“very high number of criminal history points”—which were incor-
rectly calculated. Second, the error resulted in a higher guidelines
range. Butler-Jackson’s initial sentencing range of 30 to 37 months
was based on a total offense level of 12 and a criminal history cate-
gory of VI. If the district court had not scored the four juvenile of-
fenses where adjudication was withheld, Butler-Jackson’s criminal
history category and guidelines range would have been lower. See
U.S.S.G. ch. 5 pt. A. When the district court varied upward, it spe-
cifically noted that its variance was about one year over the erro-
neous guidelines range that it had calculated.
On this record, we conclude that the district court commit-
ted plain error when it incorrectly scored Butler-Jackson’s non-
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20-14843 Opinion of the Court 9
adjudicated juvenile offenses. Remand is therefore needed to cor-
rectly calculate Butler-Jackson’s criminal history score and resen-
tence him in light of the corrected guidelines range.
B.
Butler-Jackson also argues that his sentence is substantively
unreasonable because the district court ignored mitigating evi-
dence of his mental health issues, low intelligence, and substance
abuse. We need not reach the substantive reasonableness issue
where a district court’s decision is based on a clearly erroneous fact.
See United States v. Slaton,
801 F.3d 1308, 1320 (11th Cir. 2015).
Because we remand for resentencing based on the district court’s
miscalculation of Butler-Jackson’s criminal history score, we need
not address whether his sentence was substantively unreasonable.
VACATED AND REMANDED.
