Sentencing Guidelines – There was insufficient evidence for enhancing the defendant’s offense level under U.S.S.G. § 3B1.5 for “using body armor” during a drug trafficking crime or crime of violence.
Ronald Bankston, III was sentenced to 130 months in prison after being convicted of possessing a firearm as a felon, distributing methamphetamine, and possessing body armor as a violent felon. (18 U.S.C. § 931). Bankston’s offense involved selling stolen guns, body-armor vests, and meth to an undercover detective. On appeal, he argued that the sentencing court committed plain error when it imposed a two-level enhancement because his offense involved the use of body armor under U.S.S.G. § 3B1.5.
Section § 3B1.5 applies where the defendant has been convicted of a drug trafficking crime or crime of violence, imposing a 2-level increase if the offense “involved the use of body armor” and a 4-level increase if the defendant used body armor “during the commission of the offense, in preparation for the offense, or in an attempt to avoid apprehension for the offense.”
The Application Notes define “body armor” as “any product sold or offered for sale in interstate or foreign commerce “as personal protective body covering intended to protect against gunfire.” Similarly, “use” is defined as “active employment in a manner to protect the person from gunfire” or “as a means of bartering.”
The Eleventh Circuit agreed with Bankston that selling body armor did not constitute “using” body armor under § 3B1.5. The Court explained that “bartering” does not include selling, citing the word’s “common usage and dictionary definition,” which defines “barter” as “to trade goods or services without using money.” The Court also pointed to other Guidelines that define use as including “both monetary and barter transactions” (§ 2B1.5) and a recent Fifth Circuit opinion reaching the same conclusion.
The Court concluded that Bankston had shown plain error and that there was a “reasonable probability of a different outcome absent the error,” since the Court initially sentenced Bankston to the low end of the Guidelines range, which would now be lower without the enhancement. The Court vacated the sentence and remanded the case for resentencing without the enhancement.
On Appeal from the Middle District of Florida
Opinion by Grant, joined by Martin and Newsom