United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 14, 2004
Charles R. Fulbruge III
Clerk
No. 03-40945
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROOSEVELT TERENCE JEROME RAYFORD, also known as TJ,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
USDC No. 4:02-CR-88-6
( )
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Roosevelt Terrence Jerome Rayford appeals his sentence
following his guilty plea to Count I of the indictment charging him
with conspiracy to manufacture, distribute, or possess with intent
to manufacture, distribute, or dispense cocaine base and marijuana,
in violation of 21 U.S.C. § 846. Rayford argues that his case
*
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opinion should not be published and is not precedent except under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.
should be remanded to the district court for re-sentencing within
the Guideline range of 262 to 327 months of imprisonment because
the district court erroneously assigned Rayford a base offense
level of 35 under U.S.S.G. § 4B1.1, the career offender guideline.
Rayford’s failure to object to his offense level determination
limits this Court’s review of his sentence to plain error. See
United States v. Hawkins, 87 F.3d 722, 730 (5th Cir. 1996).
Our review of the transcript of the sentencing hearing in this
case persuades us that the district court’s erroneous use of
offense level 35 was the result of two express misrepresentations
made by the prosecutor and the probation officer who were present
at the sentencing hearing; i.e. (1) that the district court’s
refusal to find that Rayford was guilty of an obstruction of
justice had no significant impact on his sentence; and (2) that the
applicable offense level for a career offender was 38 for the kind
of conviction to which Rayford plead guilty.
In its brief, the Government makes no attempt to sustain the
validity of the sentencing of 326 months entered by the district
court in this case, stating:
Although Rayford’s sentence of 326 months is still within
the Guideline range of an imprisonment, there is nothing
in the record to support the conclusion that the district
court would have sentenced Rayford to the same sentence
absent the one point error in the offense level.
In its conclusion, the Government requests that “Rayford’s sentence
should be remanded to the district court for re-sentencing within
the Guideline range of 262-327 months.”
2
Under these circumstances, we have no hesitation in concluding
that there was error in this case, such error was clear, and such
error affected Rayford’s substantial rights. See, United States v.
Calverley, 37 F.3d 160 (5th Cir. 1994). Likewise, we conclude that
such error “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” See, United States v. Olano,
507 U.S. 725 (1993). Accordingly, we exercise our discretion to
vacate Rayford’s sentence and remand this case to the district
court for re-sentencing within the Guideline range for Level 34.
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