UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4410
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GREGORY E. CAPLINGER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Lacy H. Thornburg,
District Judge. (CR-99-39)
Submitted: November 2, 2005 Decided: December 1, 2005
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas K. Maher, WINSTON & MAHER, Chapel Hill, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
A jury convicted Gregory E. Caplinger of wire fraud and
aiding and abetting wire fraud, in violation of 18 U.S.C. §§ 1343,
2 (2000); and money laundering and aiding and abetting money
laundering, in violation of 18 U.S.C. §§ 1956, 2 (2000). We
affirmed his conviction, vacated the sentence, and remanded the
case to the district court for resentencing without a two-level
enhancement for abuse of a position of trust under U.S. Sentencing
Guidelines Manual (“USSG”) § 3B1.3 (2000). See United States v.
Caplinger, 339 F.3d 226, 238 (2003). On remand, Caplinger argued
that, pursuant to USSG § 1B1.11, he should be resentenced under the
sentencing guidelines in effect at the time of his resentencing.
But after his initial sentencing, Congress enacted the PROTECT Act,
18 U.S.C.A. § 3742(g) (West Supp. 2005), which states that when
resentencing after appellate remand, a district court should apply
the sentencing guidelines “that were in effect on the date of the
previous sentencing of the defendant prior to the appeal.” Id.;
see United States v. Bordon, 421 F.3d 1202, 1205 (11th Cir. 2005).
During resentencing, the district court referred to the same
sentencing guidelines as used in the initial sentencing and
resentenced Caplinger to 124 months’ imprisonment.* Caplinger
*
At the resentencing hearing, the district court considered
the federal sentencing guidelines advisory, consistent with United
States v. Booker, 125 S. Ct. 738 (2005). Caplinger does not
challenge his sentence under Booker.
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appeals, claiming his inability to benefit from a change to the
money laundering sentencing guidelines constitutes punishment in
violation of the Ex Post Facto Clause, U.S. Const. art. I, § 9.
Caplinger argues that the PROTECT Act deprives him of a
benefit afforded by USSG § 1B1.11, which he claims would afford him
the opportunity of being sentenced under a more lenient money
laundering guideline upon resentencing. However, § 1B1.11 “says
nothing about the issue presently before this Court.” United
States v. Orlando, 363 F.3d 596, 602 (6th Cir. 2004) (holding that
“[t]he relevant comparison at issue in § 1B1.11 is between the
Guidelines in effect at the time of a defendant’s sentencing versus
those in effect at the time of a defendant’s relevant offense, not
between the version of the Guidelines in effect at the time of
resentencing versus those in effect at the time of a defendant’s
original sentencing”). Moreover, because Caplinger “seeks to have
applied to his case advantageous post-appeal changes to the
Guidelines,” id., no ex post facto concern is present. “To prevail
on this sort of ex post facto claim,” Caplinger “must show both
that the law he challenges operates retroactively (that it applies
to conduct completed before its enactment) and that it raises the
penalty from whatever the law provided when he acted.” Johnson v.
United States, 529 U.S. 694, 699 (2000). The PROTECT Act does not
increase the penalty for Caplinger from what it was at the time he
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committed the offense; therefore, it “does not violate the Ex Post
Facto Clause.” Bordon, 421 F.3d at 1207.
Accordingly, we affirm the district court’s judgment. 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.
AFFIRMED
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