United States v. Nicole Lynn Meece

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-14376 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NICOLE LYNN MEECE, a.k.a. Nikki,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Alabama D.C. Docket No. 1:20-cr-00123-JB-N-2

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explained that it requires courts to consider the underlying facts of the defendant’s conviction. Id. at 1284. We further explained that any doubts should be resolved in favor of counting an offense be- cause the Guidelines’ default rule for past offenses is one of inclu- sion, and the defendant has the burden of showing that an excep- tion applies. Id. Although the definitions of the listed offenses are matters of federal law, we look to state law for guidance. Id. In Georgia, a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of her official duties is guilty of a misdemeanor. Ga. Code Ann. § 16-10-24(a). The elements of this offense are (1) knowingly and willfully (2) obstructing (3) any law enforcement officer in the law- ful discharge of her official duties. United States v. Dennis, 26 F.4th 922, 930 (11th Cir. 2022). This offense is purposefully broad and covers conduct that might not otherwise be unlawful but for its obstruction of law enforcement officers. Berrian v. State, 608 S.E.2d 540, 541 (Ga. Ct. App. 2004). Examples of violations of this offense include fleeing from police officers after a lawful command to halt, refusing to provide identification, lying to officers, or slap- ping an officer. Beckom v. State, 648 S.E.2d 656, 659 (Ga. Ct. App. 2007). In Georgia, misdemeanor offenses can be punished by as much as 12 months’ imprisonment or confinement in a probation detention center. Ga. Code Ann. § 17-10-3(a)(1)-(2). The sentenc- ing judge may also impose probation. Id. (b). An issue not prominently raised on appeal or raised without supporting arguments and authorities is abandoned, but we can

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consider it sua sponte if a forfeiture exception applies and extraor- dinary circumstances warrant review. United States v. Smith, 967 F.3d 1196, 1204 n.5 (11th Cir. 2020); United States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc), cert. denied (U.S. Oct. 3, 2022) (No. 21-1468). Apparently acknowledging that her Ga. Code Ann. § 16-19- 24(a) prior offense is not the same as hindering or failing to obey an officer, Meece argues on appeal only that it is similar to it, and therefore should not have been counted in her criminal history score. Because Meece concedes there was no objection in the dis- trict court, she must of course establish plain error. We conclude that Meece has not established the plainness prong of plain error. Her PSI stated that she had a prior Georgia state sentence of 1 year’s probation imposed for “Willful Obstruction of Law Enforce- ment Officers.” However, the PSI did not provide the circum- stances of that offense, and Meece has not provided further infor- mation on appeal. As noted above, the Guidelines conditionally exclude sentences for hindering or failure to obey a police officer, or for a similar offense, by whatever name the offense is known. § 4A1.2(c)(1). Any error here was not plain for two reasons. First, any error was not plain under the test to determine whether an unlisted offense is similar to a listed offense, which re- quires courts to adopt a common sense approach and identifies five factors for consideration. See § 4A1.2(c) comment. (n.12(A)). Ap- plying that test in a different context, this Court has explained that courts must consider the underlying facts of the defendant’s prior

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conviction. See Garcia-Sandobal, 703 F.3d at 1283-85. Without any evidence of the conduct underlying Meece’s prior conviction, this test does not plainly result in a conclusion that her prior conviction for willfully obstructing law enforcement officers was similar to hindering or failing to obey a police officer. See id. Several of those five factors especially do not plainly support such a conclusion without evidence of her underlying conduct: the level of culpability involved, the seriousness of the offense, and whether the offense suggested a likelihood of reoffending. See § 4A1.2(c) comment. (n.12(A)). The breadth of conduct that can be punished under § 16- 10-24(a) similarly prevents those factors from plainly indicating similarity. See e.g., Beckom, 648 S.E.2d at 659. Meece does not argue on appeal that her offense did not suggest a likelihood of reoffending, and has, thus, abandoned that issue. See Smith, 967 F.3d at 1204 n.5. The perceived seriousness of the offense as indi- cated by the level of punishment, does not plainly indicate similar- ity here given that she was sentenced to 1 year’s probation, making her term of probation a day short of requiring that the offense be included. See § 4A1.2(c)(1). Meece does not cite any authorities that could show plain error in support of her plainness argument besides § 4A1.2(c)(1) and Garcia-Sandobal. Because neither explic- itly resolves whether her prior offense was similar to hindering or failing to obey an officer, she has failed to show plain error. See Sanchez, 940 F.3d at 537. A second, and an independent, reason that there is no plain error here is as follows. Even if Meece could establish that her prior

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§ 16-10-24 offense were similar to the excluded hinder or fail to obey offense, the prior offense nevertheless would be counted as one criminal history point because it is arguably similar to the rel- evant conduct of her instant offense when she removed her ankle monitor and absconded during her pretrial release. At least, the lack of similarity to the relevant conduct of the instant offense is not clear or plain and obvious.1 We conclude that Meece has failed to show that any error here was plain. See Sanchez, 940 F.3d at 537. Thus, we affirm her sentences. II.

Although we affirm Meece’s sentences, there are clerical er- rors in her judgment. We may sua sponte raise typographical er- rors in a judgment and remand with instructions to correct the er- rors. United States v. Massey, 443 F.3d 814, 822 (11th Cir. 2006). Her judgment solely cited 21 U.S.C. § 846, omitting citations that were included in the indictment to the applicable penalty provi- sion, 21 U.S.C. § 841(b)(1)(A), and the section criminalizing the of- fenses Meece conspired and attempted to commit, § 841(a)(1). Thus, we remand to the district court with instructions to amend the judgment to correct the clerical errors.

1 In any event, Meece’s brief on appeal includes only a conclusory, single sen- tence arguing that her prior offense is not similar to her instant offense. There- fore, she has abandoned that argument.

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AFFIRMED IN PART; REMANDED IN PART.

Footnotes

[2] Opinion of the Court 21-14376 ____________________ Before NEWSOM, GRANT, and ANDERSON, Circuit Judges. PER CURIAM: Nicole Meece, proceeding with counsel, appeals her total sentence of 188 months’ imprisonment for conspiring to possess methamphetamine with intent to distribute and attempting to dis- tribute methamphetamine. On appeal, she argues that the district court plainly erred by counting a misdemeanor sentence in her criminal history score that she argues should have been excluded pursuant to U.S.S.G. § 4A1.2(c)(1), thus increasing her criminal his- tory category. The relevant sentence was a sentence of 1 year’s probation imposed for the misdemeanor offense which she argues was similar to the offense of hindering law enforcement, which cannot be counted in a criminal history score. See U.S.S.G. § 4A1.2(c)(1). However, both parties agree that the relevant prior sentence was actually for a violation of Ga. Code Ann. § 16-10-24. I. Errors that a defendant did not raise in the district court are generally reviewed for plain error, and she must establish that there was a (1) plain (2) error (3) affecting her substantial rights. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904-05 (2018). To be plain, an error must have been specifically and directly re- solved by the explicit language of a statute, rule, our on-point prec- edent, or on-point precedent from the Supreme Court. United 21-14376 Opinion of the Court 3 States v. Sanchez, 940 F.3d 526, 537 (11th Cir. 2019). A defendant shows that an error affected her substantial rights if she shows that the court calculated an incorrect guideline range. Molina-Martinez v. United States, 578 U.S. 189, 198 (2016). Although a variance can indicate that a Guidelines error did not affect a defendant’s substan- tial rights, there remains a reasonable probability that the error af- fected her sentence if the court tethered its variance to the guide- line range. United States v. Corbett, 921 F.3d 1032, 1040-41 (11th Cir. 2019). If those three conditions are met, we exercise our dis- cretion to correct an error if it seriously affects the fairness, integ- rity, or public reputation of judicial proceedings. Rosales-Mireles,

[138] S. Ct. at 1905. A defendant receives one criminal history point, up to four, for each of her previous sentences with a term of imprisonment of less than 60 days. U.S.S.G. § 4A1.1(c). A defendant has a criminal history category of II if she has three criminal history points, and a category of III if she has four. U.S.S.G. § 5A. However, several misdemeanor offenses can never be counted, and some cannot be counted under certain conditions. U.S.S.G. § 4A1.2(c)(1)-(2). This exception applies to multiple listed offenses, as well as offenses sim- ilar to the listed offenses, by whatever name they are known. Id. A sentence for hindering or failing to obey a police officer is one of the listed offenses that cannot be counted under certain conditions. Id. (c)(1). A sentence for that offense, or for a similar offense, is counted solely if (1) the sentence imposed more than 1 year of pro- bation or at least 30 days’ imprisonment, or (2) the prior offense is 4 Opinion of the Court 21-14376 similar to a current offense. Id. To determine whether an unlisted offense is similar to a listed offense, courts must use a common sense approach that considers relevant factors including (1) a com- parison of punishments imposed for the offenses; (2) the perceived seriousness of the offense as indicated by the level of punishment; (3) the elements of the offense; (4) the level of culpability involved; and (5) whether the offense suggests a likelihood of reoffending. Id. comment. (n.12(A)). In a comment concerning the difference between a prior sentence and an instant offense, the Guidelines state that the con- duct that constitutes the instant offense includes relevant conduct under U.S.S.G. § 1B1.3. U.S.S.G. § 4A1.2(a) comment. (n.1). Sec- tion 1B1.3 states that relevant conduct includes the defendant’s ac- tions in the course of attempting to avoid detection or responsibil- ity for her offense. U.S.S.G. § 1B1.3(a)(1)(A). As noted above, a prior sentence that might not otherwise count one criminal history point nevertheless will count if the prior offense is similar to an in- stant offense. And, as noted in this paragraph, such an instant of- fense is deemed to include its relevant conduct. In Garcia-Sandobal, we considered whether the offense for which a defendant was previously sentenced was more similar to a listed offense for which a defendant could never receive criminal history points under § 4A1.2(c), or listed offenses that could result in points under certain conditions. United States v. Garcia-Sando- bal, 703 F.3d 1278, 1283-85 (11th Cir. 2013). We applied the above common sense five-factor test contemplated by the Guidelines and