from the United States District Court for the Middle District
of Florida D.C. Docket No. 8:16-cr-00232-SDM-CPT-1
MARTIN, NEWSOM, and GRANT, Circuit Judges.
John Bankston III appeals his 130-month sentence, which he
received after convictions for possessing a firearm as a
felon, possessing body armor as a violent felon, and
distributing methamphetamine. On appeal, Bankston objects-for
the first time-to a two-level enhancement to his sentence for
the "use" of body armor under section 3B1.5 of the
United States Sentencing Guidelines; he says there was no
evidence that he used body armor as defined in that
guideline. After careful consideration, we think he is right
and vacate his sentence.
spring of 2016, guns, ammunition, and two body-armor vests
were stolen from a law enforcement officer's vehicle. Two
days later, a confidential informant gave local police a tip
about the location of one of the stolen guns. That same day,
an undercover detective and the confidential informant went
to see Bankston, who sold them one of the stolen guns, the
two body-armor vests, ammunition, and methamphetamine.
pleaded guilty to two counts of unlawful possession and one
count of distributing methamphetamine. In calculating
Bankston's sentence, the district court relied on the
presentence investigation report (PSR). Pointing to
Bankston's selling of body-armor vests, the PSR enhanced
Bankston's sentence by two levels for the "use"
of body armor in a drug trafficking offense. See
U.S. Sentencing Guidelines § 3B1.5 (Nov. 2016). Without
any objection from Bankston, the district court adopted the
PSR's recommendation on that issue. The two-level
enhancement put Bankston's offense level at 27. Combined
with his criminal history category of VI, his Guidelines
range was 130 to 162 months. The district court sentenced
Bankston to 130 months, as recommended by the United States.
review for plain error because Bankston failed to protest the
application of the body-armor enhancement guideline in the
district court. United States v. Beckles, 565 F.3d
832, 842 (11th Cir. 2009). To meet the plain-error standard,
Bankston must establish that (1) an error occurred; (2) the
error was obvious; (3) it affected his "substantial
rights in that it was prejudicial and not harmless;" and
(4) it "seriously affects the fairness, integrity, or
public reputation of the judicial proceedings."
Id. (citation and punctuation omitted). The Supreme
Court has instructed that, once those "conditions have
been met, the court of appeals should exercise its discretion
to correct the forfeited error." See Rosales-Mireles
v. United States, 138 S.Ct. 1897, 1905 (2018) (citation
and punctuation omitted).
that standard here is straightforward. An error is obvious
when it flies in the face of either binding precedent or
"the explicit language of a statute or rule."
See United States v. Chau, 426 F.3d 1318, 1322 (11th
Cir. 2005) (per curiam) (citation and punctuation omitted);
accord United States v. Bennett, 472 F.3d 825, 834
(11th Cir. 2006) (per curiam) (miscalculated Guidelines range
was plain error). Here, we have no precedent interpreting the
relevant language, and our analysis begins and ends with the
language of the Sentencing Guidelines. "Our
interpretation of the sentencing guidelines and accompanying
commentary is governed by traditional rules of statutory
construction." United States v. Perez, 366 F.3d
1178, 1182 (11th Cir. 2004). The Guidelines also "must
be read together" with the commentary. United States
v. Ferreira, 275 F.3d 1020, 1029 (11th Cir. 2001)
(citation and punctuation omitted). In fact, "commentary
in the Sentencing Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with,
or a plainly erroneous reading of, that guideline."
United States v. Hall, 714 F.3d 1270, 1272 (11th
Cir. 2013) (citation and punctuation omitted).
3B1.5 provides a two-level enhancement "[i]f the
defendant was convicted of a drug trafficking crime or a
crime of violence" and "the offense involved the
use of body armor." U.S.S.G. § 3B1.5(1), (2)(A).
The commentary defines "use" as either "active
employment in a manner to protect the person from
gunfire" or "use as a means of bartering."
U.S.S.G. § 3B1.5, cmt. n.1. In short, there are only two
ways to "use" body armor under the guideline, and
neither of them involves selling it.
only evidence of "use" here was that Bankston sold
the armor for money. Although the PSR asserted that
Bankston's sale of body armor amounted to use as a means
of bartering, selling is an activity that under both common
usage and dictionary definition falls outside of bartering.
In fact, "barter" means to trade goods or services
without using money. See, e.g.,
Webster's New World College Dictionary (5th ed. 2018)
("trade by exchanging goods or services without using
money"); The American Heritage Dictionary of the English
Language (5th ed. 2016) (similar); New Oxford American
Dictionary (3d ed. 2010) (similar); Black's Law
Dictionary (10th ed. 2014) (similar).
course, the Guidelines could have defined "use" to
"include both monetary and barter transactions"-as
they did when defining "for pecuniary gain."
U.S.S.G. § 2B1.5, cmt. n.5(A). But here they did not.
And we "presume that the Sentencing Commission said what
it meant and meant what it said" in the Guidelines and
their commentary. United States v. Shannon, 631 F.3d
1187, 1190 (11th Cir. 2011) (citation and punctuation
omitted). So ...