UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4868
ANTHONY MILLER, a/k/a A-1,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-00-132)
Submitted: August 14, 2001
Decided: September 10, 2001
Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Nathan A. Hicks, Jr., LAW OFFICE OF NATHAN A. HICKS, JR.,
Charleston, West Virginia, for Appellant. Charles T. Miller, United
States Attorney, John J. Frail, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MILLER
OPINION
PER CURIAM:
Anthony Miller appeals his eighty-seven month sentence imposed
by the district court following his guilty plea to threatening and aiding
and abetting in the threatening of a federal witness and informant, in
violation of 18 U.S.C.A. § 1513(b)(2) (West 2000). For the reasons
below, we vacate Miller’s sentence and remand for resentencing.
Miller contends the district court incorrectly applied the Sentencing
Guidelines in calculating his criminal history. Because Miller did not
object to the district court’s calculation at sentencing, we review for
plain error. See United States v. Olano, 507 U.S. 725, 732-34 (1993).
For this court to notice plain error: (1) there must be error; (2) it must
be plain under current law; (3) it must affect substantial rights, typi-
cally meaning the defendant is prejudiced by the error in that it
affected the outcome of the proceedings; and (4) the error must seri-
ously affect the fairness, integrity, or public reputation of judicial pro-
ceedings. Id. at 733-37; United States v. Rolle, 204 F.3d 133, 138-39
(4th Cir. 2000).
Miller first contends the district court improperly counted his 1997
convictions for fleeing and destruction of property in calculating his
criminal history score, arguing the concurrent sentences were for less
then sixty days. As such, he contends the prior offenses fall under
U.S. Sentencing Guidelines Manual § 4A1.1(c) (1998), and should
not have been attributed a criminal history point since Miller had
already been assessed the maximum four points under USSG
§ 4A1.1(c).
Miller is correct. Because Miller’s concurrent 1997 sentences for
fleeing and destruction of properly were for a term of sixty days or
less, they should have been categorized under § 4A1.1(c). Since Mil-
ler had already been assigned the maximum four points under
§ 4A1.1(c), the district court plainly erred by assigning him the addi-
tional point. See USSG § 4A.1(c); United States v. Ford, 88 F.3d
1350, 1356 (4th Cir. 1996). Further, because this calculation of Mil-
ler’s criminal history placed him in a higher guidelines range, we con-
clude the error affected his substantial rights. Finally, we also find the
UNITED STATES v. MILLER 3
error seriously affected the fairness, integrity, or public reputation of
judicial proceedings. See id.
Miller next contends the district court improperly counted convic-
tions for battery on an officer and resisting arrest in calculating his
criminal history score. We find no merit in this claim. We conclude
any error inured to Miller’s favor and thus did not affect his substan-
tial rights.
Finally, Miller contends the district court erred in calculating his
criminal history by relying on the length of prior sentences that were
imposed with credit for time served. We find no merit in this claim.
For the foregoing reasons, we vacate Miller’s sentence and remand
for re-sentencing in accordance with this opinion. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
VACATED AND REMANDED