United States v. Butler ( 2023 )

Case: 22-40473 Document: 00516917317 Page: 1 Date Filed: 10/03/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 3, 2023
No. 22-40473 Lyle W. Cayce
Summary Calendar Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
Tommy Ray Butler,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:19-CR-159-9
______________________________
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam:*
Tommy Ray Butler pleaded guilty to conspiracy to possess with intent
to distribute five kilograms or more of a mixture or substance containing
cocaine and was sentenced to 262 months of imprisonment. His guidelines
sentencing range was driven by the district court’s application of U.S.S.G.
_____________________
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances set
forth in 5th Circuit Rule 47.5.4.
Case: 22-40473 Document: 00516917317 Page: 2 Date Filed: 10/03/2023
No. 22-40473
§ 4B1.1’s career offender provision in light of Butler’s two prior convictions
for controlled-substance offenses. Butler argued that one of his prior
convictions did not qualify as a predicate offense because it was for
conspiracy, and the text of the § 4B1.1 and U.S.S.G. § 4B1.2(b), which
defines the term “controlled substance offense,” does not include inchoate
offenses like conspiracy. The district court overruled the objection,
reasoning that the commentary to § 4B1.2 states that conspiracy offenses are
to be included. Butler timely appealed.
After asserting that his guilty plea was knowing and voluntary, Butler
argues in his opening brief that inchoate offenses should not be used as
predicate offenses to enhance a sentence, but he couches his argument in
terms of the Armed Career Criminal Act, which is inapplicable here. The
Government argues in its brief that the § 4B1.1 enhancement was properly
applied. After the Government’s brief was filed, our decision in United States
v. Vargas, 74 F.4th 673, 698 (5th Cir. 2023) (en banc), foreclosed the issue
against Butler. In his reply brief, Butler reiterated his argument against the
§ 4B1.1 career-offender enhancement. We exercise our discretion to
consider Butler’s reply-brief argument since, under the circumstances
presented here, doing so would not surprise or disadvantage the
Government. See United States v. Peterson, 977 F.3d 381, 394 n.5 (5th Cir.
2020); United States v. Rodriguez, 602 F.3d 346, 361 (5th Cir. 2010); United
States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009).
Butler correctly concedes that his § 4B1.1 argument is foreclosed by
Vargas, 74 F.4th at 698. He raises the issue only to preserve it for further
review.
AFFIRMED.
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