UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4022
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LEROY AUGUSTUS LANE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:06-cr-00992-GRA-1)
Submitted: April 19, 2012 Decided: May 10, 2012
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Tillman J. Breckenridge, Alison R. W. Toepp, Margaret Sander,
REED SMITH LLP, Richmond, Virginia, for Appellant. William N.
Nettles, United States Attorney, E. Jean Howard, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leroy Augustus Lane appeals from the 240-month
sentence imposed at his resentencing hearing, following vacation
of his sentence pursuant to his 28 U.S.C. § 2255 (West Supp.
2011) motion. On appeal, Lane asserts that the district court
miscalculated his Sentencing Guidelines range. Specifically, he
states that the presentence report (“PSR”) erroneously applied
U.S. Sentencing Guidelines Manual § 4B1.1 (2010). The
Government concedes error on appeal. Accordingly, we vacate
Lane’s sentence and remand for further proceedings.
The PSR applied USSG § 4B1.1 and assigned Lane a base
offense level of 37, the base offense level for a career
offender subject to a statutory maximum life sentence. However,
the base offense level for a career offender subject to a
statutory maximum sentence of twenty to less than twenty-five
years * is only 32. See USSG § 4B1.1(b)(3). Accordingly, Lane’s
advisory Guidelines range (of 240 months) was miscalculated, and
taking into account the statutory maximum, the parties agree
that his range should have instead been 210-240 months. Because
the parties are in agreement that the error should be corrected,
we vacate Lane’s sentence and remand for resentencing.
*
At resentencing, it was undisputed that Lane’s statutory
maximum sentence was twenty years.
2
On remand, Lane should be appointed a different
attorney from the one who represented him at his prior two
sentencing hearings. In addition, his case should be reassigned
to a different district court judge. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
VACATED AND REMANDED
3