United States v. Eddie Fluker, 891 F.3d 541

Background

Eddie Dean Fluker was originally convicted in 1992 in the Western District of Virginia on drug and firearms charges tied to Virginia conduct; he was sentenced as an armed career criminal and received a multi‑hundred month term.
After Johnson and Welch, Fluker pursued and won a successive 28 U.S.C. § 2255 motion vacating his sentence because the ACCA residual clause was invalid; the case was remanded for resentencing.
On resentencing, the probation officer designated Fluker a career offender under U.S.S.G. § 4B1.1 based on two Georgia robbery convictions, and the district court used the 1991 Guidelines Manual (to avoid ex post facto concerns) to calculate a Guidelines range.
Fluker objected: he argued Georgia robbery is not a “crime of violence” under the 2016 Guidelines definition, so he should not be a career offender and the court should use the 2016 Manual.
The district court overruled the objection, allowed a victim‑witness (Officer Caldwell) to testify at resentencing, and imposed a 308‑month sentence.
On appeal the Fourth Circuit concluded Georgia robbery is broader than generic robbery under the controlling definition and thus is not a § 4B1.2(a)(2) crime of violence; the Court vacated and remanded for resentencing and rejected the Government’s mootness argument.

Issues

Issue	Fluker’s Argument	Government’s Argument	Held
Whether Georgia robbery is a "crime of violence" for career‑offender purposes under U.S.S.G. § 4B1.2(a)(2)	Georgia robbery is broader than generic robbery (because it allows "sudden snatching") and thus does not qualify	Georgia robbery can qualify in some instances; district court relied on circuit precedent and an Eleventh Circuit decision	Held: Georgia robbery is broader than the Fourth Circuit’s definition of generic robbery (Gattis) and therefore is not an enumerated "robbery" predicate; career‑offender designation was erroneous
Whether the court should have used the 1991 or 2016 Guidelines Manual to compute the range	Use 2016 Manual because career‑offender designation is invalid; no ex post facto problem	District court used 1991 Manual to avoid ex post facto concerns	Held: Because career‑offender status was improper, there was no ex post facto issue and the 2016 Manual should have been used; procedural error requires vacatur and remand
Mootness: whether appeal is moot because Fluker is no longer serving the Virginia sentence	Fluker’s Virginia sentence still affects the start and duration of a consecutive Florida sentence; thus a live interest remains	Argues BOP records show Virginia term ended and current custody is solely for unrelated Florida sentence, so claim is moot	Held: Not moot—Florida sentence was expressly ordered consecutive to the Virginia term, so relief could change Fluker’s release date; case remains justiciable
Admissibility of new witness at resentencing (Officer Caldwell)	Objected that new victim testimony was improper because Caldwell did not testify at original sentencing	Government allowed to call witnesses at a full resentencing following § 2255 relief	Held: No abuse of discretion—at a full resentencing the court may consider new evidence and call witnesses; testimony was permissible

Key Cases Cited

Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating ACCA residual clause as unconstitutionally vague)
Welch v. United States, 136 S. Ct. 1257 (2016) (holding Johnson error is retroactive on collateral review)
Peugh v. United States, 569 U.S. 530 (2013) (using a higher Guidelines range at sentencing than the edition in effect at the time of offense violates the Ex Post Facto Clause)
United States v. Gattis, 877 F.3d 150 (4th Cir. 2017) (adopts the Fourth Circuit’s definition of generic robbery requiring circumstances involving immediate danger to the person)
Mathis v. United States, 136 S. Ct. 2243 (2016) (explains the categorical/divisible‑statute framework for determining whether prior convictions qualify as predicate offenses)