Eleventh Circuit Affirms Drug and Firearm Conviction in United States v. Lange

Eleventh Circuit Affirms Drug and Firearm Conviction in United States v. Lange

Alex Weathersby*

Arthur Kyle Lange sold guns and drugs five separate times to a government informant. United States v. Lange, 862 F.3d 1290, 1292 (11th Cir. 2017). He pled guilty to various offenses related to the transactions, and the United States District Court for the Northern District of Florida sentenced him to 130 months of imprisonment. Id. Lange appealed his sentence on two grounds: (1) that the district court erred in regarding his prior conviction as a principal to attempted manufacture of a control substance as a “controlled substance offense” under the United States Sentencing Guidelines, and (2) that the government engaged in sentencing factor manipulation by arranging multiple transactions in its sting. Id. (citing U.S. Sentencing Guidelines Manual § 4B1.2(b) (U.S. Sentencing Comm’n 2016); Fla. Stat. § 777.011))

1. Prior Conviction

Lange contested his sentencing enhancement for having committed a prior controlled substance offense, arguing that the Guidelines’s definition of a “controlled substance offense” does not include the Florida law under which he was previously convicted as a principal in the first degree. Lange, 862 F.3d at 1293. Under the Guidelines, a controlled substance offense “means an offense under federal or state law . . . that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S. Sentencing Guidelines Manual § 4B1.2(b) (U.S. Sentencing Comm’n 2016). Lange was previously convicted under a Florida statute creating principal liability for “[w]hoever commits any criminal offense . . . or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed.” Fla. Stat. § 777.011.

Writing for the Eleventh Circuit, Judge William Pryor applied the categorical approach to determine whether the language of the Sentencing Guidelines enhancement encompassed the Florida statute. Lange, 862 F. 2d at 1293. The court held that the Guidelines’s career offender enhancement encompassed the Florida statute creating principal liability. Id. 1295-96.

Judge Pryor noted that the commentary in Application Note 1 to § 4B1.2(b) explains the section to include inchoate crimes. Id. at 1294. The court disagreed with Lange’s narrow interpretation of the list, reasoning that it was not exhaustive. Id. The court further reasoned that the Guidelines’s inclusion of offenses that prohibit illegal activities comprised not only offenses forbidding the conduct outright, but also forbidding “related inchoate offenses that aim toward that conduct.” Id. at 1295. Following that line of reasoning, the court found that a law that forbids aiding and abetting in effect prohibits manufacture. Id. The court also noted the substantial similarity between the Florida statute for principal liability and the Application Note’s offenses. Id.

2. Sentence Factor Manipulation

The court then addressed whether the government engaged in sentencing factor manipulation and found that Lange did not meet his burden in that regard. Id. at 1296-97. The court reviewed the argument for plain error because Lange did not raise the argument before the district court. Id. at 1296.

In order for a sting operation to rise to the level of sentencing factor manipulation, “the government must engage in extraordinary misconduct.” Id. (citing United States v. Ciszkowski, 492 F.3d 1264, 1271 (11th Cir. 2007). The court noted that it has never reduced a sentence on the basis of sentencing factor manipulation. Id. (citing United States v. Docampo, 573 F.3d 1091, 1097-1098 (11th Cir. 2009). Because no precedent exists for reducing a sentence based on sentencing factor manipulation, Lange could not prove that the district court erred, since plain error is that which is obvious under current law. Lange, 862 F.3d at 1296. Due to his failure to cite authority establishing clear law on sentencing factor manipulation, and in light of precedent to the contrary, the court found that Lange failed to meet his burden of showing plain error. Id. at 1297.

*Alex Weathersby is a member of the 2017-2018 Editorial Board for Georgia Law Review.





Twitter Digg Delicious Stumbleupon Technorati Facebook Email