United States v. Collier , 75 F. App'x 256 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 11, 2003
Charles R. Fulbruge III
Clerk
No. 02-41369
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAYMOND DEWAYNE COLLIER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CR-48-1
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Before REAVLEY, JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Raymond Dewayne Collier (“Collier”) appeals the sentence
imposed following his guilty-plea conviction for using a social
security number that was not assigned to him by the Commissioner
of the Social Security Administration. For the first time on
appeal, Collier argues that the district court’s application of
the two level sentencing enhancement found in U.S.S.G.
§ 2F1.1(b)(5)(C)(i) was plainly erroneous. The Government
concedes that the district court committed plain error.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-41369
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Ordinarily, a district court’s application of the sentencing
guidelines is reviewed de novo, and its findings of fact are
reviewed for clear error. United States v. Stevenson, 126 F.3d
662, 664 (5th Cir. 1997). However, we apply a plain-error
analysis with respect to guideline issues to which the defendant
failed to object in the district court. United States v. Mora,
994 F.2d 1129, 1141-42 (5th Cir. 1993). “Under the plain error
standard, forfeited errors are subject to review only where the
errors are ‘obvious,’ ‘clear,’ or ‘readily apparent,’ and they
affect the defendant’s substantial rights.” United States v.
Clayton, 172 F.3d 347, 351 (5th Cir. 1999)(citation omitted).
“We will not exercise our discretion to correct the forfeited
errors, however, unless they ‘seriously affect the fairness,
integrity, or public reputation of the judicial proceeding.’”
Id. (citation omitted).
If the sentencing court determines that use of the version
of the guidelines in effect on the date of sentencing would
violate the Ex Post Facto Clause, the version of the guidelines
in effect on the date the offense of conviction was committed
should be used. See § 1B1.11(b)(1). Section 2F1.1(b)(5)(C)(i)
was added to the guidelines by Amendment 596, which went into
effect November 1, 2000. U.S.S.G. Supp. to App. C, Amend. 596.
Section 2F1.1 in the 1998 version of the guidelines, which was
the version in effect at the time Collier committed his offense
of conviction, does not contain a specific offense characteristic
No. 02-41369
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applicable if the offense involved the unauthorized use of
another person’s social security number in order to produce
another means of identification. See § 2F1.1 (1998).
The district court’s use of the incorrect version of the
guidelines is clear and obvious from the record. Without the
addition of two offense levels pursuant to § 2F1.1(b)(5)(C)(i),
Collier’s total offense level would have been 13, thereby
resulting in a recommended guideline range of imprisonment of 15
to 21 months. See U.S.S.G. Ch.5, Pt. A. The error therefore
substantially affected Collier’s rights, as it resulted in
Collier receiving a sentence which exceeded the maximum limit of
the appropriate guideline imprisonment range by three months.
See United States v. Aderholt, 87 F.3d 740, 744 (5th Cir. 1996).
Because Collier’s sentence was erroneously lengthened, the
fairness of this judicial proceeding was seriously affected. See
id. Accordingly, Collier’s sentence is VACATED and the case is
REMANDED for resentencing.