Opinion
No. 17-11913
08-04-2017
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RANDY BERNARD BRAGG, Defendant - Appellant.
[DO NOT PUBLISH] Non-Argument Calendar D.C. Docket No. 5:00-cr-00037-LJA-CHW-1 Appeals from the United States District Court for the Middle District of Georgia Before MARCUS, JORDAN, and JILL PRYOR, Circuit Judges. PER CURIAM:
Following the Surpeme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015), the district court vacated Randy Bragg's 210-month sentence, which had been imposed under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Because the ACCA no longer applied to Mr. Bragg, his maximum statutory sentence for violating 18 U.S.C. § 922(g) was 10 years, and his advisory guideline range was 57-71 months.
By the time of the resentencing hearing, Mr. Bragg had served approximately 198 months in prison - 78 months more than his maximum 10-year sentence. So both Mr. Bragg and the government asked the district court to impose a sentence at or below the 10-year maximum. The government told the district court that a sentence of time served (i.e., 198 months) would be illegal because it would exceed the 10-year maximum.
The district court varied upward and imposed a sentence of time served. Because Mr. Bragg had served approximately 198 months in prison, the time-served sentence exceeded the 10-year maximum and constituted reversible error. We therefore vacate Mr. Bragg's sentence and remand for resentencing. See, e.g., United States v. Sanchez, 586 F.3d 918, 930 (11th Cir. 2009) (holding that sentence exceeding statutory maximum constituted plain error and required vacator). The district court shall impose a sentence at or below the 10-year statutory maximum.
VACATED AND REMANDED.