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Sentencing — plain error

By: WISCONSIN LAW JOURNAL STAFF//December 23, 2013//

Sentencing — plain error

By: WISCONSIN LAW JOURNAL STAFF//December 23, 2013//

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — plain error

Even though a defendant failed to object to a sentence enhancement, the enhancement is plain error and the sentence must be vacated.

“Application Note 2 to U.S.S.G. 2B1.6 precluded an increase under § 2B1.1(b)(11)(B) for trafficking in unauthorized access devices because, at least under the facts presented here, that trafficking constituted a ‘transfer[] … of a means of identification.’ The district court, therefore, erred in applying the enhancement under § 2B1.1.”

“As noted previously, however, Mr. Doss failed to raise this issue before the district court and therefore must satisfy the plain error standard in order to obtain relief. The Government concedes that the district court’s error meets this standard, and we agree. The district court’s error here is “plain.” Mr. Doss’s actions, for which the court applied the increase under § 2B1.1(b)(11)(B), clearly fall within the purview of the application note. Additionally, the error affected Mr. Doss’s substantial rights because it increased his guidelines range: Without the enhancement, Mr. Doss’s range would have been fifty-one to sixty-three months; with the enhancement, Mr. Doss’s range was sixty-three to seventy-eight months. See United States v. Johns, 732 F.3d 736, 740 (7th Cir. 2013) (‘The misapplication of the enhancement increased the offense level and resulted in an improper guidelines range, which affected Johns’s substantial rights.’). Finally, ‘we elect to exercise our discretion to correct the error because we believe the error impacted the fairness of the proceedings.’ United States v. Jaimes-Jaimes, 406 F.3d 845, 851 (7th Cir. 2005). As we noted in Jaimes-Jaimes, Mr. Doss ‘may have failed to notice the sentencing error, but so did defense counsel, the Assistant United States Attorney, the probation officer, and the district court judge, and we conclude that it would be unjust to place the entire burden for these oversights on [him] by permitting him to serve an excessive prison sentence.’ Id. Mr. Doss, therefore, has met the requirements for plain error. His sentence must be vacated and the case remanded for resentencing.”

Vacated and Remanded.

13-1001 U.S. v. Doss

Appeal from the United States District Court for the Northern District of Illinois, Dow, J., Ripple, J.

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