United States v. Terry Lajuan Wright, Harold Lee Andreu, 33 F.3d 1297, 11th Cir. (1994)
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Scribd Government DocsUnited States v. Terry Lajuan Wright, Harold Lee Andreu, 33 F.3d 1297, 11th Cir. (1994)
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Scribd Government Docs33 F.
3d 1297
UNITED STATES of America, Plaintiff-Appellee,
v.
Terry LaJuan WRIGHT, Harold Lee Andreu, DefendantsAppellants.
No. 90-3564.
United States Court of Appeals,
Eleventh Circuit.
Sept. 29, 1994.
James H. Burke, Jr., Asst. Federal Public Defender, Jacksonville, FL, for
Wright. M. Alan Ceballos, Jacksonville, FL, for appellants.
Mark B. Devereaux, Asst. U.S. Atty., Jacksonville, FL, John F. De Pue,
Dept. of Justice, Crim. Div., Washington, DC, for appellee.
Appeal from the United States District Court for the Middle District of
Florida.
Before ANDERSON and DUBINA, Circuit Judges, and ESCHBACH* ,
Senior Circuit Judge.
ON REMAND FROM THE SUPREME COURT OF UNITED STATES
PER CURIAM:
Defendant-Appellant Terry LaJuan Wright was found guilty after a jury trial of
four counts, including possession of a firearm by a convicted felon ("felon in
possession"), stemming from a bank robbery in Jacksonville, Florida. The
details of the case are outlined in this court's previous opinion upholding
Wright's conviction and sentence. United States v. Wright, 968 F.2d 1167
(1992). Wright was sentenced as a career criminal. The felon in possession
charge was considered a crime of violence for the purposes of applying the
career offender provisions of U.S.S.G. Sec. 4B1.1 and 4B1.2 (1989). This
calculation led to a base offense level of 37, providing an imprisonment range
of 360 months to life. Wright was therefore sentenced to 420 months (35 years)
based on the career criminal provision, plus five years consecutive on another
count, for a total of 40 years.
2
This court upheld Wright's conviction1 and sentence. Wright claimed that the
felon in possession conviction was not a crime of violence, and therefore his
base offense level should have been 34, which would result in a sentencing
range of 262-327 months. We rejected this argument on the basis of the thencontrolling precedent of United States v. Stinson, 943 F.2d 1268 (11th
Cir.1991) (Stinson I ), which had held that felon in possession was categorically
a crime of violence. On petition for rehearing in Stinson, this court reaffirmed
that view, holding that a subsequent amendment to the Sentencing Guidelines
commentary that stated that felon in possession was never to be considered a
crime of violence (hereinafter "amendment 433") was not controlling because
courts are not bound by commentary to the Sentencing Guidelines. 957 F.2d
813 (11th Cir.1992) (Stinson II ).
Subsequently, the Supreme Court reversed this court's holding in Stinson. --U.S. ----, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (Stinson III ). The Court
disagreed with the rationale of Stinson II, holding that the commentary to the
guidelines was binding upon courts, unless that commentary violated the
Constitution or a federal statute, or was inconsistent with, or a plainly erroneous
reading of, the applicable guideline. Stinson III left open, however, the question
of whether amendment 433--which was characterized by the Sentencing
Commission as merely "clarifying," United States Sentencing Guidelines
Manual, app. C, at 254 (1993)--should be applied retroactively; this question
was left up to this circuit on remand. Stinson III, --- U.S. at ----, 113 S.Ct. at
1920. Subsequently, the Supreme Court vacated and remanded Wright's
sentence for reconsideration in light of Stinson III. --- U.S. ----, 113 S.Ct. 2325,
124 L.Ed.2d 238 (1993).
After oral argument in this case, another panel of this court, in the remand of
Stinson, held that amendment 433 should be given retroactive application.
United States v. Stinson, 30 F.3d 121 (11th Cir.1994) (Stinson IV ). We are
bound by the holding in Stinson IV. Therefore, we vacate Wright's sentence
and remand for resentencing. Upon resentencing, the district court is to apply
the Sentencing Guidelines currently in effect,2 see United States v. MunozRealpe, 21 F.3d 375, 377 n. 4 (11th Cir.1994), which state that the felon in
possession offense is not a crime of violence for purposes of the career offender
calculation under Section 4B1.1.
VACATED and REMANDED.
Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the Seventh
Circuit, sitting by designation
In the instant appeal, Wright does not raise any challenge to his conviction. Nor
does his codefendant, Harold Lee Andreu, raise any claims
It is clear in this case that application of the Sentencing Guidelines currently in
effect will not present any ex post facto concerns
