United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2149
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Keisha Braggs, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 16, 2006
Filed: October 20, 2006
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Before MELLOY, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
Keisha Braggs appeals the sentence imposed following a guilty plea. Because
the district court retroactively applied an amended sentencing guideline, we reverse
and remand for resentencing.
I. BACKGROUND
Braggs worked for a temporary employment agency. In February 2005, Braggs
updated an automobile insurance spreadsheet for nationwide sales representatives for
one of the temporary agency's clients. The insurance spreadsheet contained the sales
representatives' names, addresses, social security numbers, and other personal
information. Between June 1, 2005, and October 3, 2005,1 Braggs used this
information to open several fraudulent credit accounts, resulting in actual losses to
credit agencies in the amount of $1,987.86.
Braggs pled guilty to fraudulent use of an unauthorized access device, in
violation of 18 U.S.C. § 1029(a)(2). At sentencing, the district court applied a two-
level enhancement for abuse of position of trust under U.S.S.G. § 3B1.3, granted a
two-level adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1, and
calculated the advisory guidelines sentencing range at twenty-one to twenty-seven
months. The district court varied upward from the guidelines sentencing range and
ordered forty-eight months' imprisonment. Braggs appeals her sentence, alleging that
the district court erred by failing to provide Federal Rule of Criminal Procedure 32(h)
notice, by applying a sentencing enhancement for abuse of position of trust, and by
unreasonably varying the sentence from the guidelines sentencing range. We reverse
on a different ground, related to the application of the abuse of position of trust
enhancement.
II. DISCUSSION
Braggs asserts error in the district court's application of U.S.S.G. § 3B1.3,
abuse of position of trust. We examine de novo whether the district court correctly
interpreted and applied the guidelines, reviewing findings of facts for clear error.
United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005).
1
The indictment charged that the offense conduct occurred between June 1,
2005, and October 3, 2005, and the plea agreement specified that the offense conduct
spanned June 2005 to October 2005.
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An enhancement for abuse of position of trust applies "[i]f the defendant
abused a position of public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the offense." U.S.S.G. § 3B1.3. At the
time the offense conduct occurred, the guidelines commentary explained that this
enhancement applied if a defendant is in a position in which he or she enjoys
professional or managerial discretion, such as an attorney serving as a guardian, or
if a defendant is an "employee of the U.S. Postal Service who engages in the theft or
destruction of undelivered United States mail." Id. at cmt. 1 (2004 ed.). Effective
November 1, 2005, "an adjustment under this guidelines shall apply" if a defendant
"exceeds or abuses the authority of his or her position in order to obtain unlawfully,
or use without authority, any means of identification." Id. at cmt. 2(B) (2005 ed.).
The district court applied the 2005 amendment to Comment 2(B) to enhance Braggs'
guidelines sentence.
The guidelines instruct that the court shall use the Guidelines Manual in effect
at the time of sentencing. U.S.S.G. § 1B1.11(a). However, if the Ex Post Facto
Clause would be violated, then the court shall use the Guidelines Manual in effect at
the time of the offense. Id. at (b)(1). The "[r]etrospective application of an amended
sentencing guideline that makes the sentence more onerous than if the court had
applied the guideline in effect at the time the crime was committed violates the Ex
Post Facto Clause." United States v. Levi, 2 F.3d 842, 844-45 (8th Cir. 1993).
Indeed, "commentary and policy statements interpreting a guideline, or prohibiting
a district court from taking a specified action, are authoritative and binding on the
courts," and thus are also laws for the purpose of ex post facto analysis. Id. at 845.
Since Braggs' guidelines sentence was enhanced to her detriment by an amendment
to the commentary which went into effect after the offense conduct, the ex post facto
Clause was violated. U.S. Const. art. I, § 9, cl. 3. After de novo review, we decide
that the district court's application of the guidelines was erroneous because of this ex
post facto violation.
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Furthermore, this error was not waived. The plea agreement, using the 2004
Guidelines Manual, did not recommend the section 3B1.3 enhancement, and the
government argued against its application at sentencing. Braggs objected generally
to the section 3B1.3 enhancement, but neither party specifically objected to the PSR's
use of the 2005 Guidelines Manual or made an ex post facto argument at sentencing.
Though Braggs did not raise this error specifically, we determine that the error was
not waived.
Notwithstanding her failure to object, we conclude that because Braggs did not
intentionally relinquish or abandon a known right, she did not waive this issue. This
distinction is critical, because
[w]hereas forfeiture is the failure to make the timely assertion of a right,
waiver is the intentional relinquishment or abandonment of a known
right. Waiver extinguishes a potential error under Rule 52(b). The
result is: The plain error standard only applies when a defendant
inadvertently fails to raise an objection in the district court.
United States v. Harrison, 393 F.3d 805, 806 (8th Cir. 2005) (quotations omitted).
Braggs' simple omission may be readily contrasted with the waiver found in Harrison,
in which the district court advised the parties at sentencing that the guidelines were
subject to ex post facto considerations, set forth the sentence available if the correct
guidelines were to apply, continued the sentencing hearing to a different date, and
even unsuccessfully tried to elicit an ex post facto objection from the defense. Id. at
807-08. Rather, Braggs inadvertently forfeited the ex post facto issue, which was not
discovered by the district court. Therefore, plain error review is appropriate. Id.
"We have discretion to reverse for plain error if there is 'an error that is plain,'
'that affects substantial rights,' and that 'seriously affects the fairness, integrity or
public reputation of judicial proceedings.'" United States v. Rusan, 460 F.3d 989, 992
(8th Cir. 2006) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)). Because
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the plainly erroneous application of the enhancement directly affected the sentencing
proceedings, United States v. Villareal-Amarillas, 454 F.3d 925, 931 (8th Cir. 2006),
we reverse Braggs' sentence and remand for resentencing.
III. CONCLUSION
We reverse and remand for resentencing.
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