IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-31166
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR DEAN COMBS, also known as Dreb Combs,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
(95-CR-27-B-M1)
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July 18, 1996
( )
Before SMITH, BENAVIDES and DENNIS, Circuit Judges.
PER CURIAM*:
Defendant-Appellant Arthur Dean Combs ("Combs") challenges the
district court's sentencing following his guilty-plea conviction
for possession with intent to distribute cocaine in violation of 21
U.S.C. § 841(a)(1). Combs raises three issues on appeal: the
increase of Combs's offense level for obstruction of justice; the
increase of Combs's offense level for reckless endangerment during
flight; and the failure to reduce Combs's offense level in
accordance with the 1995 amendment to the Sentencing Guidelines in
U.S.S.G. § 2D1.1(b)(4).
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
1. Obstruction of justice: The PSR provides that while Combs was
incarcerated, he wrote at least five letters to his co-defendant,
Hugh Robinson ("Robinson"), in an attempt to influence Robinson's
answers to, and cooperation with, the Government regarding Combs's
criminal activities. In the letters, Combs admitted that he lied
to the Government. Despite his contentions that the statements he
made in the letters were not material, the facts adopted by the
district court indicate that Combs attempted to influence Robinson
to provide false information to the Government and that Combs
himself intended to, and did, lie to the Government during the
investigation of his offense. This conduct comports with that
prohibited by 18 U.S.C. § 1512(b). Therefore, we find that the
district court did not err in enhancing Combs's offense level for
obstruction of justice. See United States v. Pofahl, 990 F.2d
1456, 1481-82 (5th Cir.), cert. denied, 114 S.Ct. 266, 126 L.Ed.2d
218 and 114 S.Ct. 560, 126 L.Ed.2d 460 (1993).
2. Reckless endangerment during flight: The PSR provides that
Drug Enforcement Agents had to run between on-coming automobiles
and that "at least one of the four agents came dangerously close to
being hit by on-coming traffic" while pursuing Combs across the
Interstate. In adopting the facts in the PSR, the district court
noted that "[m]erely running across the street does not
automatically constitute endangerment to either the general public
or to the officers involved," however, the court found that the
circumstances presented in this case warranted an increase in
Combs's offense level. Section 3C1.2 of the Guidelines requires
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only a substantial risk of death or serious bodily injury to
another person caused by the defendant's attempted flight from law
enforcement officers. As the district court correctly found, those
requirements were met in Combs's attempted escape across multiple
lanes of traffic on the Interstate.
3. 1995 Guideline amendment: The Government agrees with Combs
that the district court erred when it failed to apply a 1995
Guidelines amendment at sentencing that would have resulted in a
two-level reduction in Combs's offense level pursuant to U.S.S.G.
§ 2D1.1(b)(4). The parties also agree that the error is clearly
obvious from the record. Indeed the district court noted in the
record after sentencing that it erred in not reducing Combs's
offense level pursuant to the 1995 amendment. The court stated
that "it is clear in this court's judgment that the court applied
the wrong guidelines edition insofar as the applicable sections
were concerned, that some type of correction would have to be made
by the court either now or subsequent to the appeal being
considered by the Fifth Circuit Court of Appeals." The court
refrained from resentencing Combs, however, because it questioned
its jurisdiction since Combs had already perfected his appeal to
this Court. It is undisputed that the error here was clear and
obvious at the time of sentencing. Plain err is one that is "clear
or obvious, and, at a minimum, contemplates an error which was
clear under current law at the time of trial." United States v.
Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994) (en banc), cert.
denied 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995) (internal quotation
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and citation omitted). "If the forfeited error is 'plain' and
'affect[s] substantial rights,' the Court of Appeals has authority
to order correction, but is not required to do so." United States
v. Olano, 507 U.S. 725, 735 (1993) (quoting FED. R. CRIM. P. 52(b)).
The error here affected Combs's substantial rights inasmuch as he
was subjected to a greater punishment than that which would have
been imposed had the correct version of the Guidelines been used.
We find that the district court plainly erred in failing to apply
the 1995 version of Section 2D1.1(b)(4) to reduce Combs's offense
level at sentencing. Therefore, we VACATE Combs's sentence and
REMAND for resentencing in accordance with the 1995 version of
Section 2D1.1(b)(4) of the Guidelines.
VACATED AND REMANDED FOR RESENTENCING.
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