UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4258
DAVID ELLIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-91-14-F)
Submitted: October 26, 1999
Decided: November 18, 1999
Before NIEMEYER, HAMILTON, and KING, Circuit Judges.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
William Arthur Webb, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
David Ellis appeals from the district court's order granting partial
relief on his motion filed pursuant to 28 U.S.C.A.§ 2255 (West Supp.
1999). Ellis' only claim on appeal--one that he did not raise in the
district court--is that he should have received credit toward his fed-
eral sentence for the time he served on a related state conviction.
Review, therefore, is only for plain error. See United States v. Olano,
507 U.S. 725 (1993).
In his first appeal of the denial of relief on his§ 2255 motion, we
remanded to the district court to address Ellis' claim that his attorney
was ineffective for failing to object to his criminal history calculation.
The district court found that, because the state convictions at issue
were "related offenses" within the meaning of U.S. Sentencing Guide-
lines Manual, § 4A1.2 (1990), Ellis should not have received criminal
history points for those convictions and that his attorney's failure to
raise this challenge constituted ineffective assistance. The district
court resentenced Ellis to 188 months.*
Ellis now claims that he should also have received credit for the
eight months he spent in state custody for a conviction which was
later determined to be a "related offense" to his federal conviction.
See U.S.S.G. § 5G1.3(b), comment. (n.2).; see also United States v.
Dorsey, 166 F.3d 558 (3d Cir. 1999) (holding that application note 2
requires, in such circumstances, that the defendant's federal sentence
be credited with time spent on a state sentence for a related offense).
We agree.
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*Ellis was originally sentenced to a term of 210 months imprisonment.
In granting partial relief on his 28 U.S.C.A. § 2255 motion, the district
court "corrected" his sentence to 180 months. Upon remand, Ellis was
resentenced to 188 months.
2
Because Ellis raises this claim for the first time on appeal, how-
ever, review is only for plain error. See United States v. Olano, 507
U.S. 725 (1993). To reverse for plain error, this court must "(1) iden-
tify an error; (2) which is plain; (3) which affects substantial rights;
and (4) which `seriously affect[s] the fairness, integrity or public rep-
utation of judicial proceedings.'" United States v. Moore, 11 F.3d
475, 481 (4th Cir. 1993) (quoting United States v. Olano, 507 U.S.
at 732-36). The error here was plain because it was"clear under cur-
rent law." United States v. Ford, 88 F.3d 1350, 1356 (4th Cir. 1996).
And, sentencing a defendant to a period of incarceration in excess of
the time he should otherwise serve affects his substantial rights and
"seriously affects the fairness, integrity, and public reputation of the
judicial proceedings." Id.
Accordingly, we vacate Ellis' sentence and remand to the district
court with direction to follow the dictates of application note 2 to
U.S.S.G. § 5G1.3(b) in resentencing him. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
VACATED AND REMANDED
3