United States of America v. RAYFAEL ROMAN a/k/a RAY BUCKS

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-1598
_____________
UNITED STATES OF AMERICA,
v.
RAYFAEL ROMAN
a/k/a RAY BUCKS,
Appellant
______________
On Appeal from the United States
District Court for the District of New Jersey
(D.C. No. 2:18-cr-00489-001)
District Judge: Hon. Kevin McNulty
_____________
Submitted Under Third Circuit L.A.R. 34.1(a)
on August 16, 2021
Before: CHAGARES, MATEY, and FUENTES, Circuit Judges.
(Opinion Filed: August 18, 2021)
______________
OPINION*
______________
__________________
*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

-- 1 of 4 --

2
FUENTES, Circuit Judge.
Rayfael Roman appeals from the District Court’s judgment sentencing him as a
“Career Offender” under § 4B1.2(b) of the U.S. Sentencing Guidelines.1 After briefing
was complete, we held this appeal curia advisari vult pending our en banc decision in
United States v. Nasir.2 In Nasir, the Court held that inchoate crimes are not “controlled
substance offenses” for purposes of § 4B1.2(b) and therefore cannot give rise to a Career
Offender enhancement.3 Thereafter, Roman, who was sentenced as a Career Offender
based on his prior conviction for conspiracy to distribute cocaine in violation of 21 U.S.C.
§ 846, filed a motion seeking summary reversal of his sentence (the “Motion”).4 We will
grant the Motion, vacate his sentence, and remand.5
Roman was sentenced as a Career Offender based on his prior conviction for an
1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2 982 F.3d 144 (3d Cir. 2020) (en banc).
3 Id. at 156, 160 (“We agree with Nasir that the plain language of the guidelines
does not include inchoate crimes, so he must be resentenced . . . . Therefore, sitting en banc,
we overrule Hightower, and accordingly, will vacate Nasir’s sentence and remand for
resentencing without his being classified as a career offender.”).
4 Roman also filed a letter pursuant to Federal Rule of Appellate Procedure
28(j) alerting us to several cases regarding this issue in which the Supreme Court has denied
certiorari. In response, the Government conceded that Nasir remains controlling in this
Circuit, but maintained its position that any sentencing error below was harmless, as
described infra.
5 In doing so, we also grant Roman’s motion to file his reply out of time.

-- 2 of 4 --

3
inchoate “conspiracy” offense. Nasir makes clear, and the Government concedes, that this
offense no longer qualifies Roman for Career Offender status. The Government instead
opposes the Motion on the grounds that resentencing is not required because the District
Court was likely to impose the same sentence regardless of the Career Offender
enhancement. In other words, any error below was harmless, and the District Court’s
consideration of Nasir is unlikely to change Roman’s sentence.
In support of its argument, the Government notes that the District Court granted a
five-level downward variance from the Career Offender range, acknowledging that it was
not a “huge fan”6 of the Career Offender guideline. But the District Court plainly stated
that it would not “completely ignore the effect of the Career Offender Guideline by just
imposing [a] sentence in the range that would otherwise apply if it didn’t exist.”7 We need
not speculate about what the District Court would have done, but note that the record does
not necessarily show a “high probability ‘that the sentencing judge would have imposed
the same sentence under a correct Guidelines range’” that did not include the erroneous
Career Offender enhancement.8
6 App. 142.
7 App. 149-50; see also App. 152 (“I have not sentenced the defendant to the
range that would apply if the Career Offender Guideline did not exist but to somewhat
above that.”).
8 United States v. Zabielski, 711 F.3d 381, 387 (3d Cir. 2013) (quoting United
States v. Langford, 516 F.3d 205, 216 (3d Cir. 2008)).

-- 3 of 4 --

4
Alternatively, the Government argues that if we do remand the case, we should
instruct the District Court to solely consider the question of harmless error. We decline to
remand the case with the restrictions requested by the Government. If, on remand, the
District Court determines that it would have imposed the same sentence regardless, it may
do so. But we see no compelling reason to limit its review at the outset.9
*****
For these reasons, we will vacate Roman’s sentence and remand the case for further
proceedings consistent with this opinion.
9 To be clear, we express no opinion on whether the District Court should or
should not impose the same sentence on remand.

-- 4 of 4 --