F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 3 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 04-4126
(D.C. No. 2:01-CR-12-DB)
MARTIN REYNOSO-RAMIREZ, (D. Utah)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, HARTZ, and McCONNELL, Circuit Judges.
In this direct criminal appeal, the Defendant-Appellant asserts that the
district court committed plain error in enhancing his base offense level by 16
points pursuant to § 2L1.2(b)(1)(A) of the 2000 edition of the Sentencing
Guidelines. The Defendant argues that because his sentence was imposed on
November 7, 2001, the 2001 edition of the Sentencing Guidelines should have
been used. Under the 2001 edition of the Sentencing Guidelines, the Defendant’s
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
criminal history would not have qualified for a 16 level enhancement under
§ 2L1.2(b)(1)(A). The Defendant has asked that this appeal be expedited because
he has already served the maximum time contemplated by the Guideline range that
would have been applicable under his appropriate criminal history category had
the district court properly used the 2001 edition of the Sentencing Guidelines.
The United States responded by agreeing with the Defendant, both as to the
assertion that the 2001 edition of the Sentencing Guidelines should have been
utilized and as to the Defendant’s assertion that under the 2001 edition of the
Sentencing Guidelines his criminal history would not have qualified him for a 16
level enhancement under § 2L1.2(b)(1)(A).
We agree, based upon the record before us, and conclude that the district
court plainly erred in enhancing Defendant’s sentence under the 2000 edition of
the Sentencing Guidelines.
Accordingly, we REVERSE and REMAND this case to the district court for
resentencing of the Defendant pursuant to the 2001 edition of the Sentencing
Guidelines.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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