Pantle: No Plain Error in Counting Prior Convictions

In U.S. v. Pantle, No. 09-13728 (April 4, 2011), the Court (Carnes, Pryor, Seitz) held that it was not plain error to erroneously count two prior convictions as “violent felonies” for purposes of a Guidelines sentence enhancement, because the district court indicated at sentencing that even though it was imposing the statutory maximum sentence, the sentence was not reasonable, i.e., not severe enough. At sentencing the district court counted Pantle’s prior Florida battery conviction, and his prior Alabama conviction for first degree assault, as violent felonies. Pantle did not object to these determinations. On appeal, he argued that these prior convictions should not have counted for Guideline enhancement purposes. Without reaching the merits of Pantle’s arguments, the Court held that no substantive rights were violated. The district court imposed the statutory maximum sentence, well below the Guideline range. The district court indicated at sentencing that it did not believe this sentence was severe enough. Therefore, even if Pantle prevailed on his challenge to the two prior convictions, he could not carry his burden of showing that his substantial rights were affected, because he could not show a reasonable probability that the district court would have imposed a lower sentence.