IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10175 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GARY DEAN POSEY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 2:97-CR-61-ALL-1 -------------------- October 1, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Gary Dean Posey appeals his sentences for failure to appear

and for felon in possession of a firearm. He asserts that the

district court erred in failing to apply the methodology set

forth in the November 1, 1998, version of U.S.S.G. § 2J1.6,

comment. (n.3).

Posey did not raise this specific objection in the district

court. Accordingly, we review only for plain error. See United

States v. Spires,

(5th Cir. 1996). To obtain

relief under the plain-error standard, Posey must show an error

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-10175 -2-

by the district court which is clear or obvious and which affects

his substantial rights. See United States v. Calverley,

(5th Cir. 1994) (en banc).

Posey has demonstrated that the district court plainly erred

in omitting to apply the methodology set forth in the amended

version of § 2J1.6, comment. (n.3). The presentence report

states that the November 1, 1997, version of the Sentencing

Guidelines was used to calculate Posey’s sentence. Because he

was sentenced on February 8, 1999, the November 1, 1998, version

of § 2J1.6, comment. (n.3) applies to Posey’s case. See

(a)(4)(A). The approach set forth in that

application note requires that Posey’s failure-to-appear

conviction be treated as an obstruction-of-justice enhancement to

the underlying felon-in-possession sentence and that the two

convictions then be grouped together pursuant to § 3D1.2(c).

This yields a guideline imprisonment range of 46 to 57 months.

Pursuant to

(b)(2), the term of imprisonment

for the failure-to-appear conviction must be consecutive to any

term of imprisonment imposed for the underlying felon-in-

possession conviction. Therefore, if, on remand, the district

court elects to impose a term of imprisonment on the failure-to-

appear conviction, Posey must receive two distinct sentences, and

these sentences must be consecutive. Under § 2J1.6, comment.

(n.3), however, the sum of these two sentences must not exceed

the applicable guideline range of 46 to 57 months’ imprisonment.

Posey’s sentence is hereby VACATED, and the matter REMANDED

to the district court for resentencing in accordance with No. 99-10175 -3-

§ 2J1.6, comment. (n.3). His request to withdraw the other

issues briefed on appeal is GRANTED.

VACATED AND REMANDED.