UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4390
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT JORDAN FIELDS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:05-cr-01226-MBS)
Submitted: September 19, 2007 Decided: October 30, 2007
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. Reginald I. Lloyd, United States Attorney, Dean A.
Eichelberger, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Jordan Fields (“Fields”) was convicted by a jury
of making a false loan and credit application, 18 U.S.C.A. § 1014
(West Supp. 2007), and was sentenced to a term of twelve months
imprisonment. Fields contends that the district court erred in
using the 2000 Guidelines Manual to calculate his guideline range
under U.S. Sentencing Guidelines Manual § 2F1.1 (2000). Because
the district court sentenced Fields under the 2000 manual without
first determining whether use of the 2006 Guidelines Manual would
have subjected Fields to increased punishment in violation of the
Ex Post Facto Clause, or would have resulted in a lower guideline
range, as he asserts, we vacate the sentence and remand the case
for resentencing.
In 1998, Regions Bank in Aiken, South Carolina, issued a
letter of credit to Fields Real Estate Securities Corporation for
$83,800 for improvements to be made on lots in the Summit Business
Center in Aiken. When the improvements were not completed by the
city’s deadline, it used the letter of credit to complete the
project. Regions Bank paid the city $83,800 in November 1999.
Regions Bank then attempted to collect money from Fields
Real Estate, but instead of demanding the full amount, the bank
first had the company sign an unsecured promissory note, then tried
to convert the obligation to a loan secured by a mortgage on real
property. Robert Fields provided a mortgage on fourteen lots in
- 2 -
Aiken that belonged to AKJ Investments, which was owned by his
brother, Michael Fields and his wife, Bea, who lived in Pinehurst,
North Carolina. However, Fields Real Estate subsequently defaulted
on the loan. After the bank obtained a foreclosure order, it
learned that Michael Fields had not mortgaged the property, that
Michael Fields’ signature on the mortgage was forged, as were the
witnesses’ signatures, and that Robert Fields was not a principal
of AKJ or authorized to act on its behalf. During an investigation
by the Federal Bureau of Investigation, Fields denied that he had
ever claimed authority to act on behalf of AKJ or that he took the
mortgage documents away from the bank to have them signed by
Michael Fields. Fields was then charged and convicted of the
instant offenses.
The probation officer calculated Fields’ advisory
guideline range using the 2000 Guidelines Manual because it was in
effect at the time of the offense and the probation officer
regarded it as less punitive.* The probation officer estimated
that Regions Bank’s loss of $83,800 did not result from Fields’
*
In 2001, the guideline for fraud, USSG § 2F1.1, was merged
with § 2B1.1 in a major revision of the guidelines for economic
crimes. USSG App. C., amend. 617. In 2003, the base offense level
for any offense covered in § 2B1.1 and punishable by a statutory
maximum of twenty years or more was increased to from 6 to 7. USSG
App. C, amend. 653. The revised § 2B1.1 does not include an
enhancement for more than minimal planning and the definition of
actual loss was changed from “the value of the money, property, or
services unlawfully taken,” USSG § 2F1.1, comment. (n.8) (2001),
to “the reasonably foreseeable pecuniary harm that resulted from
the offense.” USSG § 2B1.1, comment. (n.3(A)(i)).
- 3 -
actions, but from the bank’s failure to have the line of credit
collateralized and then demand immediate payment from Fields Real
Estate after making payment to the city of Aiken. The probation
officer recommended a base offense level of 6 under USSG § 2F1.1,
a 2-level enhancement for more than minimal planning under
§ 2F1.1(b)(2)(A), and a 2-level adjustment for obstruction of
justice under USSG § 3C1.1, based on Fields’ materially false
statements to the federal agent who investigated the offense. The
total offense level was 10. Because Fields was in criminal history
category II, his advisory guideline range was 8-14 months.
At the sentencing hearing, the district court agreed that
no loss enhancement was warranted, overruling the government’s
objection to the presentence report. At this point, Fields
suggested that the enhancement for more than minimal planning
should be eliminated because it was not available under the 2006
Guidelines Manual. The government pointed out that the “one book
rule” requires a manual to be applied in its entirety. U.S.
Sentencing Guidelines Manual § 1B1.11(b)(2). The district court
proceeded to sentence Fields using the 2000 Guidelines Manual.
On appeal, Fields argues that the district court
incorrectly calculated his guideline range using the 2000
Guidelines Manual because under the 2006 manual his offense level
would have been 9 and his advisory guideline range would have been
6-12 months. The government appears to concede that Fields’
- 4 -
offense level would be no more than 9 under the 2006 version of
§ 2B1.1, and his guideline range would thus be 6-12 months. The
government does not suggest that the district court would
necessarily find that a loss enhancement would be warranted if
Fields were sentenced under the 2006 version of § 2B1.1.
We are not convinced that Fields waived the issue by not
raising it until after the sentencing court ruled at the sentencing
hearing that no loss enhancement should be made, as the government
argues. If the defendant does not raise the issue of which manual
applies, either in the district court or on appeal, the appeals
court has the discretion to address the issue sua sponte, if
necessary. United States v. Heater, 63 F.3d 311, 331 n.5 (4th Cir.
1995) (choosing to address Ex Post Facto issue although appellant
did not raise it); cf. United States v. Hartzog, 983 F.2d 604, 608
(4th Cir. 1993) (declining to reach issue because it was not raised
below).
The government contends that any error is harmless
because Fields’ twelve-month sentence falls within the overlap of
the ranges that would apply under either the 2000 or the 2006
Guidelines Manual without a loss enhancement. Had the district
court stated that it would impose a sentence of twelve months
regardless of which guideline range was the correct one, any error
would be harmless and appellate review would be unnecessary.
United States v. Smith, 914 F.2d 565, 569 n.3 (4th Cir. 1990).
- 5 -
However, the district court did not so find, and when a defendant's
guideline range has been improperly computed, resentencing is
required even though the sentence imposed was within the overlap of
the sentencing range which should have been used because the court
might impose a different sentence when using the correct range.
United States v. McCrary, 887 F.2d 485 (4th Cir. 1989).
Because it is not clear from the record that the 2000
Guidelines Manual was correctly applied, we vacate the sentence and
remand this case for resentencing. On remand, the district court
should calculate Fields’ guideline range using the 2006 Guidelines
Manual. If the resulting guideline range is the same or more
favorable to Fields than the range the court arrived at using the
2000 Guidelines Manual, then the 2006 manual may be used without
violating the Ex Post Facto Clause, and should be used, pursuant to
§ 1B1.11, to sentence Fields.
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
- 6 -