IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10175
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY DEAN POSEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:97-CR-61-ALL-1
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October 1, 1999
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Gary Dean Posey appeals his sentences for failure to appear
and for felon in possession of a firearm. He asserts that the
district court erred in failing to apply the methodology set
forth in the November 1, 1998, version of U.S.S.G. § 2J1.6,
comment. (n.3).
Posey did not raise this specific objection in the district
court. Accordingly, we review only for plain error. See United
States v. Spires, 79 F.3d 464, 465 (5th Cir. 1996). To obtain
relief under the plain-error standard, Posey must show an error
*
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that this opinion should not be published and is not precedent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. 99-10175
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by the district court which is clear or obvious and which affects
his substantial rights. See United States v. Calverley, 37 F.3d
160, 162-63 (5th Cir. 1994) (en banc).
Posey has demonstrated that the district court plainly erred
in omitting to apply the methodology set forth in the amended
version of § 2J1.6, comment. (n.3). The presentence report
states that the November 1, 1997, version of the Sentencing
Guidelines was used to calculate Posey’s sentence. Because he
was sentenced on February 8, 1999, the November 1, 1998, version
of § 2J1.6, comment. (n.3) applies to Posey’s case. See 18
U.S.C. § 3553(a)(4)(A). The approach set forth in that
application note requires that Posey’s failure-to-appear
conviction be treated as an obstruction-of-justice enhancement to
the underlying felon-in-possession sentence and that the two
convictions then be grouped together pursuant to § 3D1.2(c).
This yields a guideline imprisonment range of 46 to 57 months.
Pursuant to 18 U.S.C. § 3146(b)(2), the term of imprisonment
for the failure-to-appear conviction must be consecutive to any
term of imprisonment imposed for the underlying felon-in-
possession conviction. Therefore, if, on remand, the district
court elects to impose a term of imprisonment on the failure-to-
appear conviction, Posey must receive two distinct sentences, and
these sentences must be consecutive. Under § 2J1.6, comment.
(n.3), however, the sum of these two sentences must not exceed
the applicable guideline range of 46 to 57 months’ imprisonment.
Posey’s sentence is hereby VACATED, and the matter REMANDED
to the district court for resentencing in accordance with
No. 99-10175
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§ 2J1.6, comment. (n.3). His request to withdraw the other
issues briefed on appeal is GRANTED.
VACATED AND REMANDED.