NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 16-4301 ____________

UNITED STATES OF AMERICA

v.

ROBERT SMITH, a/k/a "B", a/k/a "Born"

Robert Smith, Appellant ____________

On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 1-14-cr-00152-001) District Judge: Honorable Noel L. Hillman ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) October 23, 2017

Before: NYGAARD and FISHER, Circuit Judges.*

(Filed: December 20, 2023) ____________

OPINION** ____________

* The Honorable Joseph A. Greenaway, Jr. was a member of the merits panel. Judge Greenaway retired from the Court on June 15, 2023 and did not participate in the consideration of this motion. ** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. FISHER, Circuit Judge.

In 2017, Appellant Robert Smith came to us with seven claims on appeal

following his conviction for a number of robbery, drug, and firearms crimes.1 We found

one argument—that he was improperly denied discovery on his selective enforcement

claims—worthy of remand. Rather than opine on issues that could become moot, we held

Smith’s other claims curia advisari vult (C.A.V.) pending resolution of proceedings

surrounding his selective enforcement claim in the District Court. Those proceedings

remain ongoing.

In the meantime, Smith filed a motion in this Court for leave to file a supplemental

brief raising several new arguments. We granted the motion, and now face those three

newly raised issues. Specifically, Smith urges us to (1) order his resentencing as he no

longer qualifies as a career offender under recent precedent; (2) vacate his conviction for

violating

(c); and (3) vacate his conviction for violating

(g)(1). For the reasons set forth below, we will vacate Smith’s sentence, remand for

resentencing, and affirm his convictions under

(c) and 922(g)(1).

We begin with Smith’s first argument: that he is not a career offender under the

United States Sentencing Guidelines. A district court is required to correctly calculate a

defendant’s sentence under the Guidelines prior to imposing any sentence. United States

1 The District Court exercised jurisdiction pursuant to

. We exercise jurisdiction pursuant to

and

(a).

2 v. King,

(3d Cir. 2006). An adult defendant is a career offender where

“the instant offense of conviction is a felony that is either a crime of violence or a

controlled substance offense” and “has at least two prior felony convictions of either a

crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a) (Nov. 1,

2016).2 Smith was designated a career offender. Without the career offender label, Smith

would have been sentenced with an offense level of 34 and a criminal history category of

V, and he would have faced a Guideline range of 295–353 months’ imprisonment on all

charges.3 Id. ch.5, pt.A. With the career offender label, his offense level became 37 and

his criminal history category became VI.4 Id. As a result, he faced a Guideline-range

sentence of 360 months to life imprisonment. Id. Smith was sentenced at the bottom of

that range, to 360 months imprisonment.

That sentence stemmed from Smith’s four underlying convictions: (1) conspiracy

to commit Hobbs Act robbery, in violation of

(a); (2) conspiracy to

possess with intent to distribute at least five kilograms of cocaine, in violation of 21

2 We apply the version of the Sentencing Guidelines in effect at the time of Smith’s sentencing. See United States v. Omoruyi,

(3d Cir. 2001). 3 An offense level of 34 and criminal history category of V results in a Guidelines range of 235 to 293 months’ imprisonment. U.S.S.G. ch.5, pt.A (Nov. 1, 2016). However, pursuant to

(c)(1)(A)(i), Smith’s conviction for using, carrying, and possessing a firearm in connection with a crime of violence or a drug trafficking crime resulted in a statutory minimum sentence of sixty months imprisonment, set to run consecutively with all other charges. As such, his actual Guideline range would have been 295 to 353 months imprisonment. 4 The career offender designation leads to a criminal history category of VI and an increase in a defendant’s offense level. U.S.S.G. § 4B1.1(b).

(a) and (b)(1)(A) and

; (3) using, carrying and possessing a

firearm in connection with those conspiracies, in violation of

(c); and (4)

possessing a firearm and ammunition as a convicted felon, in violation of

(g)(1). At the time of Smith’s original sentencing, the first and second of these

offenses counted as “instant offense[s] of conviction” that were “crime[s] of violence or .

. . controlled substance offense[s].” U.S.S.G. 4B1.1(a)(2) (Nov. 1, 2016). After his

sentencing, however, we decided United States v. Nasir,

(3d Cir. 2021) (en

banc), and United States v. Abreu,

(3d Cir. 2022). In Nasir, we concluded

that the Guidelines’ definition of a “controlled substance offense” did not include

inchoate crimes.

. In Abreu, we concluded much the same with respect to

the Guidelines’ definition of “crime of violence.”

. Thus, Smith no longer

has any instant offenses of conviction that would count as a crime of violence or a

controlled substance offense and he is not a career offender.

Still, Smith’s claim cannot succeed unless he demonstrates that his sentencing as a

career offender constituted plain error. Plain error review is appropriate because Smith

relies on case law promulgated by this Court during his direct appeal. “[T]he general rule

. . . is that an appellate court must apply the law in effect at the time it renders its

decision.” Henderson v. United States,

(2013) (quoting Thorpe v.

Hous. Auth. of Durham,

(1969)). It follows that, where a decision

“results in a ‘new rule,’ that rule applies to all criminal cases still pending on direct

4 review.” Schriro v. Summerlin,

(2004) (quoting Griffith v. Kentucky,

(1987)). However, while the new rule applies, Federal Rule of

Criminal Procedure 52(b) limits our review to plain errors. Fed. R. Crim. P. 52(b)

(permitting “[a] plain error that affects substantial rights [to] be considered” on appeal

“even though it was not brought to the [trial] court’s attention.”); see also Henderson,

; United States v. Pervez,

(3d Cir. 1989). Courts may

provide remedies under Rule 52(b) only if there is (1) an “error[,]” that is (2) “plain” and

(3) “affect[s] substantial rights.” United States v. Olano,

, 732–34 (1993).

Satisfying all three prongs creates discretion to (4) “correct a plain forfeited error

affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.’”

at 736 (quoting United States v. Atkinson,

(1936)).

The Government concedes that Smith has made his required showing on all four

prongs of the plain error test, and we agree. Nasir and Abreu make plain an obvious

error—specifically, the application of the career offender guideline to instant offenses

that were not controlled substance offenses or crimes of violence as defined in the

Sentencing Guidelines. And the plain error affected Smith’s substantial rights, as the

District Court relied on an incorrect Guideline range when fashioning his sentence.

Molina-Martinez v. United States,

(2016). Such errors “will in the

ordinary case, as here, seriously affect the fairness, integrity, or public reputation of

5 judicial proceedings, and thus will warrant relief.” Rosales-Mireles v. United States,

(2018).

Turning to that relief, Congress has provided that, where a “sentence was imposed

. . . as a result of an incorrect application of the sentencing guidelines, the court shall

remand the case for further sentencing proceedings with such instructions as the court

considers appropriate.”

(f)(1). So a remand for resentencing is

appropriate. On remand, however, the District Court retains its typical discretion in

imposing a sentence within a statutory range. United States v. Brow,

(3d Cir. 2023). The exercise of that discretion must involve consideration of Smith’s

corrected Guideline range. United States v. Gunter,

(3d Cir. 2006). But

it may also involve consideration of the Sentencing Commission’s recent amendment to

the definitions of “controlled substance offenses” and “crimes of violence” so that they

now “include the offenses of aiding and abetting, attempting to commit, or conspiring to

commit any such offense,” notwithstanding the fact that the amended text is not binding.

U.S.S.G. § 4B1.2(d); Peugh v. United States,

(2013) (reasoning that

district courts are “free to give careful consideration to the current version of the

Guidelines as representing the most recent views of the agency charged by Congress with

developing sentencing policy.”). The District Court may also consider evidence of

Smith’s conduct while incarcerated in fashioning an appropriate sentence. Concepcion v.

United States,

(2022).

6 As to Smith’s arguments about his convictions under

(c) and

922(g)(1), we are unpersuaded. With respect to § 924(c), Smith contends that his

conspiracy convictions (for Hobbs Act robbery and drug trafficking) no longer count as

predicate offenses because they are not “crimes of violence.” True enough, but § 924(c)

predicates include “crime[s] of violence or drug trafficking crime[s].” Id. at

§ 924(c)(1)(A) (emphasis added). And a “drug trafficking crime” is “any felony

punishable under the Controlled Substances Act.” Id. at § 924(c)(2). Smith’s conviction

for conspiracy to possess with intent to distribute at least five kilograms of cocaine—in

violation of

(a), 841(b)(1)(A), and 846—is just that. Here, the jury

unanimously and specifically convicted Smith of violating § 924(c) on the basis of both

charged predicate offenses—Hobbs Act robbery and conspiracy to possess with the intent

to distribute at least five kilograms of cocaine.

While it was error to treat the Hobbs Act robbery charge as a § 924(c) predicate,

then, it was not error to treat his drug trafficking conspiracy charge as one. United States

v. Garcia-Vasquez,

(3d Cir. 2023) (reasoning that Ҥ 924(c)(2) includes

conspiracies”). And, in any event, relief is unavailable on plain error review unless a

claimant shows that an error has affected his “substantial rights.” United States v.

Marcus,

(2010). In the ordinary case, that “means that there must be a

reasonable probability that the error affected the outcome of the trial.”

In this case,

there was overwhelming evidence of Smith’s guilt with respect to his conspiracy to

7 possess with intent to distribute charge and no reasonable possibility that guilt on his

Hobbs Act robbery charge would have otherwise affected the jury’s deliberations.

Smith’s conduct fits squarely within the range of “drug trafficking crime[s]” covered by

§ 924(c), and so we will not disturb his conviction here.

As to Smith’s argument on his

(g)(1) conviction, relief is similarly

unavailable. True, the District Court did not instruct the jury on the correct mens rea for a

felon-in-possession offense. See Rehaif v. United States,

, 2199–2200

(2019) (holding that, in felon-in-possession cases, the Government must prove that a

defendant knows he is a felon when illegally possessing a firearm). But a failure to do so

“is not a basis for plain-error relief unless the defendant first makes a sufficient argument

or representation on appeal that he would have presented evidence at trial that he did not

in fact know he was a felon.” Greer v. United States,

(2021). Here,

such an argument is unavailing. Smith stipulated to a prior felony conviction at trial, and

his presentence investigation report reveals a number of felony convictions that led to his

imprisonment for a combined total of over seven years. “If a person is a felon, he

ordinarily knows he is a felon,”

, and we see no reason that would not be the

case where—as here—a defendant has a substantial and recent criminal history that

would have placed him on notice of his status as a felon.

For the foregoing reasons, we will vacate Smith’s sentence, remand for

resentencing consistent with this opinion, and affirm his convictions for violating 18

(c) and 922(g)(1). Those claims held C.A.V. in this Court’s January 31,

2018 Opinion will remain in abeyance, pending resolution of Smith’s discovery claim by

the District Court.

9