USCA11 Case: 21-14376 Document: 34-1 Date Filed: 12/21/2022 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14376
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICOLE LYNN MEECE,
a.k.a. Nikki,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:20-cr-00123-JB-N-2
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2 Opinion of the Court 21-14376
____________________
Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Nicole Meece, proceeding with counsel, appeals her total
sentence of 188 months’ imprisonment for conspiring to possess
methamphetamine with intent to distribute and attempting to dis-
tribute methamphetamine. On appeal, she argues that the district
court plainly erred by counting a misdemeanor sentence in her
criminal history score that she argues should have been excluded
pursuant to U.S.S.G. § 4A1.2(c)(1), thus increasing her criminal his-
tory category. The relevant sentence was a sentence of 1 year’s
probation imposed for the misdemeanor offense which she argues
was similar to the offense of hindering law enforcement, which
cannot be counted in a criminal history score. See U.S.S.G. §
4A1.2(c)(1). However, both parties agree that the relevant prior
sentence was actually for a violation of
Ga. Code Ann. § 16-10-24.
I.
Errors that a defendant did not raise in the district court are
generally reviewed for plain error, and she must establish that there
was a (1) plain (2) error (3) affecting her substantial rights.
Rosales-Mireles v. United States,
138 S. Ct. 1897, 1904-05 (2018).
To be plain, an error must have been specifically and directly re-
solved by the explicit language of a statute, rule, our on-point prec-
edent, or on-point precedent from the Supreme Court. United
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21-14376 Opinion of the Court 3
States v. Sanchez,
940 F.3d 526, 537 (11th Cir. 2019). A defendant
shows that an error affected her substantial rights if she shows that
the court calculated an incorrect guideline range. Molina-Martinez
v. United States,
578 U.S. 189, 198 (2016). Although a variance can
indicate that a Guidelines error did not affect a defendant’s substan-
tial rights, there remains a reasonable probability that the error af-
fected her sentence if the court tethered its variance to the guide-
line range. United States v. Corbett,
921 F.3d 1032, 1040-41 (11th
Cir. 2019). If those three conditions are met, we exercise our dis-
cretion to correct an error if it seriously affects the fairness, integ-
rity, or public reputation of judicial proceedings. Rosales-Mireles,
138 S. Ct. at 1905.
A defendant receives one criminal history point, up to four,
for each of her previous sentences with a term of imprisonment of
less than 60 days. U.S.S.G. § 4A1.1(c). A defendant has a criminal
history category of II if she has three criminal history points, and a
category of III if she has four. U.S.S.G. § 5A. However, several
misdemeanor offenses can never be counted, and some cannot be
counted under certain conditions. U.S.S.G. § 4A1.2(c)(1)-(2). This
exception applies to multiple listed offenses, as well as offenses sim-
ilar to the listed offenses, by whatever name they are known. Id.
A sentence for hindering or failing to obey a police officer is one of
the listed offenses that cannot be counted under certain conditions.
Id. (c)(1). A sentence for that offense, or for a similar offense, is
counted solely if (1) the sentence imposed more than 1 year of pro-
bation or at least 30 days’ imprisonment, or (2) the prior offense is
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4 Opinion of the Court 21-14376
similar to a current offense. Id. To determine whether an unlisted
offense is similar to a listed offense, courts must use a common
sense approach that considers relevant factors including (1) a com-
parison of punishments imposed for the offenses; (2) the perceived
seriousness of the offense as indicated by the level of punishment;
(3) the elements of the offense; (4) the level of culpability involved;
and (5) whether the offense suggests a likelihood of reoffending.
Id. comment. (n.12(A)).
In a comment concerning the difference between a prior
sentence and an instant offense, the Guidelines state that the con-
duct that constitutes the instant offense includes relevant conduct
under U.S.S.G. § 1B1.3. U.S.S.G. § 4A1.2(a) comment. (n.1). Sec-
tion 1B1.3 states that relevant conduct includes the defendant’s ac-
tions in the course of attempting to avoid detection or responsibil-
ity for her offense. U.S.S.G. § 1B1.3(a)(1)(A). As noted above, a
prior sentence that might not otherwise count one criminal history
point nevertheless will count if the prior offense is similar to an in-
stant offense. And, as noted in this paragraph, such an instant of-
fense is deemed to include its relevant conduct.
In Garcia-Sandobal, we considered whether the offense for
which a defendant was previously sentenced was more similar to a
listed offense for which a defendant could never receive criminal
history points under § 4A1.2(c), or listed offenses that could result
in points under certain conditions. United States v. Garcia-Sando-
bal,
703 F.3d 1278, 1283-85 (11th Cir. 2013). We applied the above
common sense five-factor test contemplated by the Guidelines and
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21-14376 Opinion of the Court 5
explained that it requires courts to consider the underlying facts of
the defendant’s conviction.
Id. at 1284. We further explained that
any doubts should be resolved in favor of counting an offense be-
cause the Guidelines’ default rule for past offenses is one of inclu-
sion, and the defendant has the burden of showing that an excep-
tion applies.
Id. Although the definitions of the listed offenses are
matters of federal law, we look to state law for guidance.
Id.
In Georgia, a person who knowingly and willfully obstructs
or hinders any law enforcement officer in the lawful discharge of
her official duties is guilty of a misdemeanor.
Ga. Code Ann.
§ 16-10-24(a). The elements of this offense are (1) knowingly and
willfully (2) obstructing (3) any law enforcement officer in the law-
ful discharge of her official duties. United States v. Dennis,
26 F.4th
922, 930 (11th Cir. 2022). This offense is purposefully broad and
covers conduct that might not otherwise be unlawful but for its
obstruction of law enforcement officers. Berrian v. State,
608
S.E.2d 540, 541 (Ga. Ct. App. 2004). Examples of violations of this
offense include fleeing from police officers after a lawful command
to halt, refusing to provide identification, lying to officers, or slap-
ping an officer. Beckom v. State,
648 S.E.2d 656, 659 (Ga. Ct. App.
2007). In Georgia, misdemeanor offenses can be punished by as
much as 12 months’ imprisonment or confinement in a probation
detention center.
Ga. Code Ann. § 17-10-3(a)(1)-(2). The sentenc-
ing judge may also impose probation.
Id. (b).
An issue not prominently raised on appeal or raised without
supporting arguments and authorities is abandoned, but we can
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6 Opinion of the Court 21-14376
consider it sua sponte if a forfeiture exception applies and extraor-
dinary circumstances warrant review. United States v. Smith,
967
F.3d 1196, 1204 n.5 (11th Cir. 2020); United States v. Campbell,
26
F.4th 860, 873 (11th Cir. 2022) (en banc), cert. denied (U.S. Oct. 3,
2022) (No. 21-1468).
Apparently acknowledging that her
Ga. Code Ann. § 16-19-
24(a) prior offense is not the same as hindering or failing to obey
an officer, Meece argues on appeal only that it is similar to it, and
therefore should not have been counted in her criminal history
score. Because Meece concedes there was no objection in the dis-
trict court, she must of course establish plain error. We conclude
that Meece has not established the plainness prong of plain error.
Her PSI stated that she had a prior Georgia state sentence of 1
year’s probation imposed for “Willful Obstruction of Law Enforce-
ment Officers.” However, the PSI did not provide the circum-
stances of that offense, and Meece has not provided further infor-
mation on appeal. As noted above, the Guidelines conditionally
exclude sentences for hindering or failure to obey a police officer,
or for a similar offense, by whatever name the offense is known. §
4A1.2(c)(1). Any error here was not plain for two reasons.
First, any error was not plain under the test to determine
whether an unlisted offense is similar to a listed offense, which re-
quires courts to adopt a common sense approach and identifies five
factors for consideration. See § 4A1.2(c) comment. (n.12(A)). Ap-
plying that test in a different context, this Court has explained that
courts must consider the underlying facts of the defendant’s prior
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21-14376 Opinion of the Court 7
conviction. See Garcia-Sandobal, 703 F.3d at 1283-85. Without any
evidence of the conduct underlying Meece’s prior conviction, this
test does not plainly result in a conclusion that her prior conviction
for willfully obstructing law enforcement officers was similar to
hindering or failing to obey a police officer. See id. Several of those
five factors especially do not plainly support such a conclusion
without evidence of her underlying conduct: the level of culpability
involved, the seriousness of the offense, and whether the offense
suggested a likelihood of reoffending. See § 4A1.2(c) comment.
(n.12(A)). The breadth of conduct that can be punished under § 16-
10-24(a) similarly prevents those factors from plainly indicating
similarity. See e.g., Beckom,
648 S.E.2d at 659. Meece does not
argue on appeal that her offense did not suggest a likelihood of
reoffending, and has, thus, abandoned that issue. See Smith, 967
F.3d at 1204 n.5. The perceived seriousness of the offense as indi-
cated by the level of punishment, does not plainly indicate similar-
ity here given that she was sentenced to 1 year’s probation, making
her term of probation a day short of requiring that the offense be
included. See § 4A1.2(c)(1). Meece does not cite any authorities
that could show plain error in support of her plainness argument
besides § 4A1.2(c)(1) and Garcia-Sandobal. Because neither explic-
itly resolves whether her prior offense was similar to hindering or
failing to obey an officer, she has failed to show plain error. See
Sanchez, 940 F.3d at 537.
A second, and an independent, reason that there is no plain
error here is as follows. Even if Meece could establish that her prior
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8 Opinion of the Court 21-14376
§ 16-10-24 offense were similar to the excluded hinder or fail to
obey offense, the prior offense nevertheless would be counted as
one criminal history point because it is arguably similar to the rel-
evant conduct of her instant offense when she removed her ankle
monitor and absconded during her pretrial release. At least, the
lack of similarity to the relevant conduct of the instant offense is
not clear or plain and obvious.1
We conclude that Meece has failed to show that any error
here was plain. See Sanchez, 940 F.3d at 537. Thus, we affirm her
sentences.
II.
Although we affirm Meece’s sentences, there are clerical er-
rors in her judgment. We may sua sponte raise typographical er-
rors in a judgment and remand with instructions to correct the er-
rors. United States v. Massey,
443 F.3d 814, 822 (11th Cir. 2006).
Her judgment solely cited
21 U.S.C. § 846, omitting citations that
were included in the indictment to the applicable penalty provi-
sion,
21 U.S.C. § 841(b)(1)(A), and the section criminalizing the of-
fenses Meece conspired and attempted to commit, § 841(a)(1).
Thus, we remand to the district court with instructions to amend
the judgment to correct the clerical errors.
1 In any event, Meece’s brief on appeal includes only a conclusory, single sen-
tence arguing that her prior offense is not similar to her instant offense. There-
fore, she has abandoned that argument.
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21-14376 Opinion of the Court 9
AFFIRMED IN PART; REMANDED IN PART.
