United States v. Willie Manning , 452 F. App'x 700 ( 2012 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 11-1775
    ___________
    United States of America,               *
    *
    Appellee,                         *    Appeal from the United States
    *    District Court for the
    v.                                *    Western District of Arkansas.
    *
    Willie Earl Manning,                    *          [UNPUBLISHED]
    *
    Appellant.                        *
    ___________
    Submitted: January 9, 2012
    Filed: January 17, 2012
    ___________
    Before MURPHY, BYE, and COLLOTON, Circuit Judges.
    ___________
    PER CURIAM.
    Willie Earl Manning pled guilty to possession of crack cocaine with intent to
    distribute and being a felon in possession of a firearm. The district court sentenced
    him to 262 months imprisonment and 8 years of supervised release. Manning appeals
    his sentence, arguing that he received ineffective assistance of counsel in respect to
    it. The government concedes that there was error in Manning's sentence. We reverse
    and remand for resentencing.
    A presentence report (PSR) for Manning was prepared. His counsel made no
    objections to it until the sentencing hearing when he objected to the criminal history
    computation because it included convictions over ten years old. He also questioned
    Manning's base offense level because he was unsure whether it reflected the crack
    cocaine amendment to the sentencing guidelines. See U.S.S.G. app. C (vol. III)
    amend. 706 (2011). The district court then corrected Manning's criminal history score
    and explained that the offense level calculation had been based on amendment 706.
    Manning's counsel made no other objections.
    The court determined that as a career offender Manning's criminal history
    category was VI and his base offense level was 37. See U.S.S.G. § 4B1.1(b). After
    a three level reduction for acceptance of responsibility, Manning's total offense level
    was 34. The district court then sentenced him to concurrent terms of 262 months
    imprisonment, at the low end of the guideline range, for his drug conviction and 180
    months for his firearm conviction.
    On appeal Manning argues that he received ineffective assistance of counsel
    because his attorney did not examine the full PSR or review it with him and did not
    submit timely objections or a sentencing memorandum. The government agrees that
    Manning received ineffective assistance of counsel but for a different reason. It
    submits that Manning's sentence was based on an erroneous application of the career
    offender provision and that his counsel should have objected. Manning's offense level
    was incorrectly calculated in the PSR which had used a statutory maximum
    punishment of life imprisonment for Manning's drug offense rather than the correct
    statutory maximum of 40 years. See 
    21 U.S.C. § 841
    (a)(1), (b)(1)(B)(iii) (possession
    offense and penalty). With a three level reduction for acceptance of responsibility
    Manning's base offense level should have actually been 34 with a total offense level
    of 31. U.S.S.G. § 4B1.1(b). The correct guideline range should thus have been
    188–235 months.
    We conclude that the district court committed a plain procedural error in
    sentencing Manning. See United States v. Townsend, 
    618 F.3d 915
    , 918 (8th Cir.
    2010). Procedural error includes improper calculation of the guideline range, United
    -2-
    States v. Feemster, 
    572 F.3d 455
    , 461 (8th Cir. 2009) (en banc), and this error is plain
    under the relevant career offender section of the guidelines and the statutory
    maximum for Manning's drug offense. U.S.S.G. § 4B1.1(b); 
    21 U.S.C. § 841
    (b)(1)(B)(iii). Not only did the district court err in calculating the guideline range,
    but its sentence of 262 months was greater than a properly calculated range of
    188–235 months. There is thus "a reasonable probability that [Manning] would have
    received a lighter sentence but for the error." United States v. Molnar, 
    590 F.3d 912
    ,
    915 (8th Cir. 2010).
    The parties agree that Manning must be resentenced. Accordingly, we reverse
    and remand for resentencing.
    ______________________________
    -3-
    

Document Info

Docket Number: 11-1775

Citation Numbers: 452 F. App'x 700

Judges: Murphy, Bye, Colloton

Filed Date: 1/17/2012

Precedential Status: Non-Precedential

Modified Date: 10/19/2024