IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-11420
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARRY LYNN BENNETT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:96-CR-24-1
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June 26, 1997
Before KING, JOLLY, and DENNIS, Circuit Judges:
PER CURIAM:*
Harry Lynn Bennett appeals his sentence for mail fraud and
tax evasion, arguing that the district court erred in failing to
group, for sentencing purposes, the mail fraud count with the tax
evasion counts, since they are “closely related” counts under
U.S.S.G. § 3D1.2(c). After Bennett filed his appeal, this court
decided United States v. Haltom, No. 96-10707 (U.S. 5th Cir. May
*
Pursuant to 5th Cir. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
No. 96-11420
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13, 1997), a connected case in which the same issue was raised,
and on which the defendant prevailed.
In Haltom, this court concluded that the district court had
erred in failing to group Haltom’s mail fraud and tax evasion
offenses together as “closely related” counts pursuant to
§ 3D1.2(c), since “the mail fraud count ‘embodies conduct that is
treated as a specific offense characteristic’ of the tax evasion
counts.” Haltom at p. 8, quoting § 3D1.2(c). Similarly,
Bennett’s mail-fraud count embodied conduct that was treated as a
specific offense characteristic in the guideline applicable to
the tax evasion counts. Therefore, the mail-fraud and tax
evasion counts should have been grouped under § 3D1.2(c).
The district court denied the Government’s § 5K1.1 motion
because it did not believe Bennett was entitled to a departure
for assisting the Government in prosecuting the people he
“dragged” into his fraudulent scheme. The district court did not
abuse its discretion in refusing to grant a § 5K1.1 downward
departure in Bennett’s sentence. See United States v. Franks, 46
F.3d 402, 406 (5th Cir. 1995).
The sentence is VACATED and the case REMANDED to the
district court for resentencing.
VACATED AND REMANDED.