UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4507
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALVIN JOSEPH ROSS, JR., a/k/a hrnybtmincharlotte, a/k/a Jacob
Jingleheimer,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:07-cr-00102-LHT-1)
Submitted: October 1, 2009 Decided: November 18, 2009
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina;
Fredilyn Sison, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Asheville, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina; Amy
E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alvin Joseph Ross pled guilty to one count of traveling in
interstate commerce for the purpose of engaging in a sexual act
with a minor who was (a) over 12 years-old but less than 16
years-old and (b) at least four years younger than Ross, in
violation of 18 U.S.C. § 2423(b). Ross was sentenced to 66
months of imprisonment, and he now appeals the sentence arguing
that the district court erroneously applied a two-level
enhancement under U.S.S.G. § 2G1.3(b)(2)(B). For the reason set
forth below, we vacate the sentence and remand for further
proceedings.
On appeal, Ross contends that the enhancement – which
generally applies when a defendant unduly influences a minor to
engage in prohibited sexual conduct -- is inapplicable because
the “minor” in this case was actually an undercover law
enforcement officer with whom he communicated via the internet.
At the time of the sentencing, a circuit split existed on the
applicability of the enhancement in this circumstance, and this
Court had not addressed the issue. During the pendency of this
appeal, the United States Sentencing Commission amended the
Commentary to § 2G1.3 expressly to resolve the circuit split,
explaining that “subsection (b)(2)(B) does not apply in a case
in which the only ‘minor’ . . . involved in the offense is an
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undercover law enforcement officer.” U.S.S.G. App. C. Supp.,
Amend. 732 (effective Nov. 1, 2009).
In light of the amendment, we requested supplemental briefs
from the parties on the question of whether the amendment is
applicable in this case. Based on our circuit precedent, the
parties contend that the amendment is a “clarifying amendment”
which must be applied on appeal and, therefore, we should remand
the case to the district court for resentencing. We agree.
See, e.g., United States v. Goines, 357 F.3d 469, 474 (4th Cir.
2004) (explaining the applicability of “clarifying” guideline
amendments on appeal).
Accordingly, we vacate Ross’ sentence and remand this case
to the district court for resentencing. We dispense with oral
argument as 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
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