United States v. Allen Pendergrass

2 Opinion of the Court 25-10834 minimum sentence required by the aggravated identity theft stat- ute. Reviewing for plain error, we affirm.

I. BACKGROUND

Mr. Pendergrass and his co-defendant Terrell McQueen were indicted on five counts of mail fraud (counts 1-5), one count of conspiracy to commit money laundering (count 6), and four counts of aggravated identity theft (counts 7-10). The indictment alleged that Messrs. Pendergrass and McQueen contacted local, county, and state government offices seeking lists of unclaimed funds. The two then mailed fraudulent documents claiming that they were representatives of the funds' rightful owners and col- lected the funds for themselves.

Mr. Pendergrass pleaded not guilty and proceeded to trial. A jury found him guilty of mail fraud, conspiracy to commit money laundering, and aggravated identity theft. At sentencing, the dis- trict court calculated Mr. Pendergrass' advisory guidelines range as 63 to 78 months, noting that it was required to impose a consecu- tive 24-month sentence for the aggravated identity theft counts. See

18 U.S.C. § 1028A(a)(1). Based on these considerations and the 18 U.S.C. § 3553(a) sentencing factors, the court imposed a total sen- tence of 46 months' imprisonment. Mr. Pendergrass appealed his convictions and sentence. We affirmed the convictions but re- manded for resentencing because Mr. Pendergrass was not given the opportunity to allocute at his sentencing hearing. See United States v. Pendergrass, No. 22-13018, 2025 WL 78172, at *11 (11th Cir. Jan. 13, 2025) (unpublished).

2

25-10834 Opinion of the Court 3 At his resentencing hearing, Mr. Pendergrass, who was 70 years old at the time, addressed the district court. He began by apologizing and accepting responsibility for his actions. Mr. Pen- dergrass, who had been released on bond pending his trial and dur- ing his appeal, told the court that he had held full-time employment and had not had any encounters with law enforcement while on bond. He also discussed a project to build tiny homes for people facing homelessness in Atlanta for which he had recently received funding. He concluded by asking the court to consider "a plea or partial reduction of [his] sentence with the remainder to be served"

under home detention. See Doc. 348 at 8.¹

The district court acknowledged Mr. Pendergrass' desire to serve his sentence "at home." Id. at 12. But it noted that he faced a two-year mandatory consecutive sentence for the aggravated iden- tity theft conviction. The court stated its belief "that the mandatory minimum doesn't authorize [the court] to" order home detention. See id. The court noted that Mr. Pendergrass had not provided any authority suggesting that it could impose home detention when a statute requires a mandatory minimum sentence. Mr. Pendergrass' counsel stated her belief that, given the limited remand to allow allocution only, she could not raise the issue of home confinement at the resentencing. She nevertheless indicated that "there might be some authority" that home detention can be a "substitute for a prison sentence." Id. The court responded that it did not know that

3

4 Opinion of the Court 25-10834 to be true for mandatory sentences. The court concluded that it

"had to impose the mandatory minimum." Id. at 12. Considering Mr. Pendergrass' age, his contributions to the community, and the length of time the case had been pending— thirteen years—the district court imposed a total sentence of 30 months' imprisonment: a 24-month sentence for the aggravated identity theft conviction and a consecutive six-month sentence for the other convictions. The court explained: "I don't have any way of getting around the reality of the fact that there is a mandatory sentence here. And the other six months I have to really address but are not greater than necessary indeed still to punish you for the crimes committed." Id. at 16. Mr. Pendergrass did not object to the sentence.

This is his appeal.

II. STANDARD OF REVIEW

"We review a district court's interpretation of the Sentenc- ing Guidelines and application of the Guidelines to the facts de novo, and we review the district court's findings of fact for clear error." United States v. Dimitrovski, 782 F.3d 622, 628 (11th Cir.

2015).

Issues raised for the first time on appeal are reviewed for plain error. See United States v. Corbett, 921 F.3d 1032, 1037 (11th Cir. 2019). To establish plain error, a defendant must show: (1) an error, (2) that is "plain," (3) that "affects substantial rights," and

4

25-10834 Opinion of the Court 5 (4) that "seriously affects the fairness, integrity, or public reputa- tion of judicial proceedings." United States v. Lejarde-Rada, 319 F.3d 1288, 1290 (11th Cir. 2003) (citation modified). Mr. Pendergrass agrees that our review is for plain error.

III. DISCUSSION

The aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), provides that a defendant convicted of using a stolen identity during another felony "shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years." The statute also specifies that probation may not satisfy this minimum sentence. See 18 U.S.C. § 1028A(b)(1) ("[A] court shall not place on probation any person convicted of a violation of this section.").

On appeal, Mr. Pendergrass argues that the district court plainly erred in determining that home detention cannot be used to satisfy the mandatory minimum sentence for aggravated iden- tity theft. The Sentencing Guidelines permit home detention "as a condition of probation or supervised release, but only as a substi- tute for imprisonment." U.S.S.G. § 5F1.2. Relying on the language that home detention may be a "substitute" for imprisonment, Mr. Pendergrass argues that home detention is a form of imprisonment and therefore it can satisfy the mandatory minimum sentence in § 1028A. He cites two cases from this Court in support of his argu- ment: Herrera v. U.S. Attorney General, 811 F.3d 1298 (11th Cir. 2016), and United States v. Taylor, 550 F. App'x 819 (11th Cir. 2013) (unpublished).

5

6 Opinion of the Court 25-10834 We need not decide whether the district court erred in con- cluding that it could not impose home detention to satisfy § 1028A. Because Mr. Pendergrass did not object at his resentencing hearing to the sentence imposed, he must show not only that the district court erred, but also that its error was plain. See Corbett, 921 F.3d at 1037. Even assuming he is correct that there was error, he has not shown that the error was plain. "An error is plain if the explicit lan- guage of a statute or rule or precedent from the Supreme Court or this Court directly resolves the issue and establishes that an error has occurred." United States v. Boone, 97 F.4th 1331, 1339 (11th Cir. 2024). Mr. Pendergrass has cited no controlling authority directly stating that home detention may satisfy the 24-month mandatory minimum required by § 1028A(a)(1) or that home confinement may satisfy mandatory minimum requirements generally. In fact, he concedes that this Court has not "specifically addressed whether the 24-month sentence required by § 1028A could be satisfied by home detention." Appellant's Br. 11.

The cases Mr. Pendergrass cites in support of his argument neither provide "explicit language" that "directly resolves the is- sue" nor "establish[] that an error has occurred" here. See Boone,

97 F.4th at 1339. First, Mr. Pendergrass relies on Herrera. In that case, a noncitizen challenged the Board of Immigration Appeals' decision that he was not eligible for cancellation of removal because he had a previous conviction for an aggravated felony. See Herrera,

811 F.3d at 1299. He argued that his previous burglary conviction

6

25-10834 Opinion of the Court 7 did not qualify as an aggravated felony because he was sentenced to house arrest, not incarceration, for the offense. See id. We held that it was reasonable for the Board of Immigration Appeals to con- clude that the noncitizen's home detention constituted "confine- ment that qualified as a term of imprisonment" under the Immi- gration and Nationality Act. See id. at 1300 (citation modified). Herrera does not directly control the issue before us. Even if it was reasonable for the BIA to determine that home detention could constitute a term of imprisonment under the Immigration and Nationality Act's definition of an aggravated felony, it does not follow that home detention necessarily satisfies a mandatory mini- mum requirement under a different statute in a different (criminal) context. Herrera therefore does not resolve whether Mr. Pender- grass could have been sentenced to home detention. Second, Mr. Pendergrass cites Taylor. In that case, we re- jected a defendant's argument that a home-detention condition im- posed upon revocation of his supervised release was illegal because it caused his sentence to exceed the relevant statutory maximum. Taylor, 550 F. App'x at 820-21. We cited a Fifth Circuit decision, noting that it stood for the proposition that a district court "erred by imposing a term of incarceration as well as a term of home de-

7

8 Opinion of the Court 25-10834 tention that combine to exceed the statutory maximum term of in- carceration." Id. at 821 (quoting United States v. Ferguson, 369 F.3d 847, 852 (5th Cir. 2004)).²

Mr. Pendergrass argues that our statement in Taylor quoting Ferguson made it plain that the district court erred here. We are not persuaded. As an initial matter, Taylor was unpublished and there- fore "do[es] not constitute binding authority and may be relied on only to the extent" that it is "persuasive." Searcy v. R.J. Reynolds To- bacco Co., 902 F.3d 1342, 1355 n.5 (11th Cir. 2018). In addition, in Taylor we did not explicitly adopt the Fifth Circuit's reasoning in Ferguson. Instead, we clarified that "[h]ome detention can be im- posed as a condition of supervised release." Taylor, 550 F. App'x at

821. And even if home detention may not be used to exceed statu- tory maximums, it does not follow that a sentence of home deten- tion necessarily satisfies a statutory mandatory minimum. Even as mere persuasive authority, Taylor does not explicitly support Mr.

8

25-10834 Opinion of the Court 9 Pendergrass' argument that he could have been sentenced to home detention in satisfaction of § 1028A's mandatory minimum. Indeed, our precedent cuts against Mr. Pendergrass' argu- ment that home detention may satisfy a mandatory minimum sen- tence. In United States v. Mangaroo, 504 F.3d 1350 (11th Cir. 2007), we held that a district court plainly erred when it sentenced defend- ants to four years of probation, which included as a condition one year of home detention, in satisfaction of a seven-year manda- tory minimum sentence for a firearm offense. See id. at 1353-54. Pointing to the provision in the firearm offense statute prohibiting probation, the Court reasoned that sentences of home detention are "specific conditions of probation, and probation is an impermis- sible sentence for the firearm offenses." Id. at 1354. We further said that home detention "is not incarceration." Id.

The aggravated identity theft statute under which Mr. Pen- dergrass was sentenced similarly prohibits probation. See 18 U.S.C. § 1028A(b)(1). Because this Court held in Mangaroo that home de- tention is a "specific condition[ ] of probation," which is unavailable to Mr. Pendergrass, and is "not incarceration," it is far from clear that the district court could order Mr. Pendergrass to serve his mandatory two-year sentence of imprisonment on home deten- tion. See Mangaroo, 504 F.3d at 1354. This is particularly so given the six-month sentence the district court imposed for the other counts of conviction. See 18 U.S.C. § 3561(a)(3) ("A defendant who has been found guilty of an offense may be sentenced to a term of probation unless . . . the defendant is sentenced at the same time to

9

10 Opinion of the Court 25-10834 a term of imprisonment for the same or a different offense that is not a petty offense.").

Mr. Pendergrass points to no controlling precedent directly resolving the issue of whether he could have been sentenced to home detention in satisfaction of § 1028A's mandatory minimum sentence. He therefore has failed to show that the district court plainly erred.

IV. CONCLUSION

For the above reasons, we affirm the sentence the district court imposed.

AFFIRMED.

10