USCA11 Case: 23-10245 Document: 49-1 Date Filed: 04/30/2024 Page: 1 of 6

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 23-10245 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus STEPHEN J. BRINSON,

Defendant-Appellant.

____________________ Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 4:05-cr-00010-AW-MAF-2 ____________________ USCA11 Case: 23-10245 Document: 49-1 Date Filed: 04/30/2024 Page: 2 of 6

____________________ No. 23-10253 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus STEPHEN J. BRINSON,

Defendant-Appellant.

____________________ Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 4:21-cr-00013-AW-MAF-1 ____________________ Before ROSENBAUM, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM: Stephen Brinson appeals his 188-month sentence followed by 10-years’ supervised release for fentanyl distribution, and his 51-month consecutive sentence imposed upon revocation USCA11 Case: 23-10245 Document: 49-1 Date Filed: 04/30/2024 Page: 3 of 6

23-10245 Opinion of the Court 3 of supervised release following a previous conviction. He argues that the district court committed plain error in calculating his Sen- tencing Guidelines range for both sentences.

I.

We review an argument not made before the district court for plain error, requiring the defendant to show that there is (1) er- ror; (2) that is plain; (3) that affects his substantial rights; and (4) that seriously affects “the fairness, integrity, or public reputation of ju- dicial proceedings.” United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). An error is plain if it is plain at the time of appeal, even if it was not plain at the time of the district court’s decision.

United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). For a defendant to show an error affected his substantial rights, he must show a reasonable probability of a different result but for the error.

United States v. Underwood, 446 F.3d 1340, 1343-44 (11th Cir. 2006).

An incorrect Guidelines range generally shows a reasonable prob- ability of a different result. Molina-Martinez v. United States, 578 U.S. 189, 198 (2016). “The risk of unnecessary deprivation of liberty par- ticularly undermines the fairness, integrity, or public reputation of judicial proceedings in the context of a plain Guidelines error be- cause of the role the district court plays in calculating the range and the relative ease of correcting the error.” Rosales-Mireles v. United States, 585 U.S 129, 140 (2018). A party’s concession of law is not binding on us. United States v. Colston, 4 F.4th 1179, 1187 (11th Cir. 2021).

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§ 4B1.1(a). The prior felony convictions must be counted sepa- rately under § 4A1.1(a)-(c). § 4B1.2(c)(2). Under § 4A1.1, a prior sentence exceeding one year and one month imposed or served within 15 years of the commencement of the instant offense and any prior sentence imposed within 10 years of the commencement of the instant offense are counted. § 4A1.2(e)(1)-(2). Any other prior sentence is not counted. § 4A1.2(e)(3).

Conspiracy to commit a drug offense is not a controlled sub- stance offense for the purposes of § 4B1.2. United States v. Dupree, 57 F.4th 1269, 1280 (11th. Cir. 2023) (en banc). Although the com- mentary to § 4B1.2 states that conspiracy to commit a controlled substance offense qualifies as a controlled substance offense, that commentary is not considered, because the text of § 4B1.2(b) un- ambiguously excludes inchoate crimes. U.S.S.G. § 4B1.2, com- ment. (n.1); Dupree, 57 F.4th at 1277-79.

Here, the government is correct to concede that the district court plainly erred in sentencing Brinson as a career offender.

See Monroe, 353 F.3d at 1349; Colston, 4 F.4th at 1187. First, the dis- trict court applied the career-offender enhancement based on a drug-conspiracy conviction. We held in Dupree that inchoate offenses, including conspiracy, are not controlled substance USCA11 Case: 23-10245 Document: 49-1 Date Filed: 04/30/2024 Page: 5 of 6

23-10245 Opinion of the Court 5 offenses, so the district court erred. See Dupree, 57 F.4th at 1277-79.

Second, the error is plain, as Dupree explicitly held that conspiracy is not a controlled substance offense. See id.; Rodriguez, 398 F.3d at 1299. Third, the error affected Brinson’s substantial rights, as it significantly affected his guideline range. See Molina-Martinez, U.S. at 198. Finally, the risk of unnecessary deprivation of lib- erty undermines the fairness and integrity of judicial proceedings.

See Rosales-Mireles, 585 U.S. at 140. The career-offender enhance- ment was therefore plain error. See Monroe, 353 F.3d at 1349.

Accordingly, we vacate Brinson’s fentanyl-distribution sen- tence and remand for resentencing. 1 II.

Grade A violations of supervised release include any federal controlled substance offense punishable by more than a year in prison. U.S.S.G. § 7B1.1(a)(1). Fentanyl distribution is punishable by up to 30 years of imprisonment. 21 U.S.C. § 841(a)(1), (b)(1)(C).

When the defendant’s criminal history category when he was orig- inally sentenced was VI, and he commits a Grade A violation while on supervised release for a Class A felony, he is subject to a guide- line range of 51 to 63 months’ imprisonment. U.S.S.G. § 7B1.4(a).

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§ 7B1.4. Because the statutory maximum term was five years, the district court properly calculated Brinson’s capped guideline range at 51 to 60 months. See 18 U.S.C. § 3583(e)(3).

Accordingly, we affirm Brinson’s sentence imposed upon revocation of supervised release.

AFFIRMED IN PART, VACATED AND REMANDED IN PART

2 At the time of the instant sentencing, Brinson’s prior convictions for aggra- vated assault and robbery no longer counted towards his criminal history be- cause of their age. Thus his criminal history category was IV and no longer VI.