United States v. Arthur Kyle Lange
2017 U.S. App. LEXIS 12726
| 11th Cir. | 2017Background
- Arthur Kyle Lange sold drugs and firearms to a confidential informant in five separate controlled purchases organized by federal agents; he later pleaded guilty to multiple firearm and drug counts.
- Lange had a 2011 Florida conviction for “Principal to Attempted Manufacture of Controlled Substance.”
- At sentencing the district court treated that Florida conviction as a "controlled substance offense" under U.S.S.G. § 4B1.2(b), which increased his base offense level and produced a Guidelines range of 130–162 months; the court sentenced him to 130 months.
- Lange objected that Florida’s principal-liability statute (Fla. Stat. § 777.011), which covers aiding or abetting attempts, is broader than the Guideline’s definition and therefore should not qualify as a controlled substance offense.
- Lange also argued (for the first time on appeal) that the government engaged in sentencing-factor manipulation by arranging multiple transactions rather than arresting him after the first sale.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Florida conviction for principal to attempted manufacture qualifies as a "controlled substance offense" under U.S.S.G. § 4B1.2(b) | Lange: § 777.011 reaches attempted or inchoate liability beyond the Guideline’s scope and thus is not a qualifying predicate | Government/District Court: Guideline and Application Note 1 include aiding/abetting, attempt, conspiracy; principal liability that reaches aiding an attempt falls within the definition | The court held the Florida conviction qualifies as a "controlled substance offense" because Application Note 1 treats aiding/abetting and attempt as covered, and § 777.011 is substantially similar to those offenses |
| Whether the word “includes” in Application Note 1 limits the Guideline to only the listed inchoate offenses | Lange: “includes” should be read as exhaustive so only aiding/abetting, attempt, conspiracy are covered | Government: "includes" is non-exhaustive; definition covers statutes that prohibit aiding/abetting an attempt because they effectively prohibit manufacture | The court held "includes" is non-exhaustive and the Guideline’s definition encompasses Florida principal liability for attempted manufacture |
| Whether the district court erred by applying the prior conviction without inquiring into the factual basis | Lange: prior conviction shouldn’t have been counted given the statutory differences | Government: prior conviction plainly fits the Guideline definition | The court held the district court did not err in treating the prior conviction as a qualifying predicate |
| Whether the government’s arrangement of five undercover purchases constitutes sentencing-factor manipulation warranting relief | Lange: multiple transactions improperly increased his exposure and were extraordinary misconduct | Government: multiple purchases were lawful investigative technique; not extraordinary misconduct | The court held Lange failed to show extraordinary governmental misconduct and, because he raised the issue only on appeal, failed to show plain error; no relief granted |
Key Cases Cited
- United States v. Smith, 775 F.3d 1262 (11th Cir. 2014) (interpretation of Guidelines definitions)
- United States v. Probel, 214 F.3d 1285 (11th Cir. 2000) (give application notes their natural reading even if broadening applicability)
- United States v. Ciszkowski, 492 F.3d 1264 (11th Cir. 2007) (standard for sentencing-factor manipulation requires extraordinary governmental misconduct)
- United States v. Govan, 293 F.3d 1248 (11th Cir. 2002) (multiple purchases in a sting do not automatically constitute manipulative conduct)
- United States v. Sanchez, 138 F.3d 1410 (11th Cir. 1998) (discussing whether sting operations should be filtered from sentencing calculus)