UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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No. 98-11354 Summary Calendar ___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

FREDDIE LEE JONES, JR.,

Defendant-Appellant.

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Appeal from the United States District Court for the Northern District of Texas (3:98-CR-289) ___________________________________________________

January 7, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS Circuit Judges.

PER CURIAM:*

Freddie Lee Jones, Jr. appeals his sentence for bank robbery.

Jones’ sole argument on appeal is that the district court

misapplied the Sentencing Guidelines by using an old conviction in

calculating his criminal history category. For the reasons that

follow, we vacate the sentence imposed by the district court and

remand this case for resentencing.

Jones pleaded guilty to three counts of bank robbery for

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 robberies that he committed on August 17, August 19, and August 25,

1998. In reliance on the Presentence Report (“PSR”), the district

court assigned Jones a criminal history point for each of his five

prior convictions, determined that Jones fell within the guideline

range of 63-75 months, and sentenced him to 65 months imprisonment

and three years of supervised release.

On appeal, Jones argues that the district court violated the

sentencing guidelines by assigning him a criminal history point for

a March 1988 conviction for theft. He notes that the Guidelines do

not permit courts to assign a criminal history point for a prior

sentence of less than thirteen months where that sentence was

imposed more than 10 years before the defendant’s commencement of

the current offense. U.S.S.G. § 4A1.1(c), application note 3.

Because Jones was sentenced for the 1988 robbery more than ten

years before the commission of the instant offenses and for a term

of less than thirteen months, he concludes that the court should

have sentenced him to a range of 51-63 months rather than 63-78

months.

This court will uphold a sentence imposed by a district court

“unless it was imposed in violation of law; imposed as a result of

an incorrect application of the sentencing guidelines; or [imposed]

outside the range of the applicable sentencing guideline and is

unreasonable.” United States v. Garcia,

(5th

Cir. 1992). Ordinarily, we review a district court’s application

of the sentencing guidelines de novo. United States v. Stevenson,

(5th Cir. 1997). However, because Jones failed

2 to raise the instant objection during sentencing, we review for

plain error. United States v. Calverley,

(5th Cir.

1994)(en banc).

The Supreme Court defines a plain error as one that is “clear”

or “obvious.” United States v. Olano,

(1993).

As this Court has explained, “Plain errors are those which are so

conspicuous that ‘the trial court and prosecutor were derelict in

countenancing them, even absent the defendant’s timely assistance

in detecting [them].’” United States v. Leonard,

(1998), quoting Calverley,

. A plain error is an

error that is both obvious and affects the defendant’s substantial

rights. Leonard,

. Moreover, even if a defendant

demonstrates that the district court committed plain error, this

Court need not exercise its power to correct the error unless “the

error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.”

The Guidelines provide that the sentencing judge must add 1

criminal history point for each

prior sentence of less than sixty days imprisonment. U.S.S.G. §

4A1.1(c). However, the Application Notes explain that such a

sentence may not be counted if the sentence was “imposed more than

ten years prior to the defendant’s commencement of the instant

offense.” U.S.S.G. § 4A1.1(c), cmt. 3. Furthermore, the Guideline

section entitled “Applicable Time Period,” reiterates that the

sentencing court must not count such a sentence unless “imposed

within ten years of the defendant’s commencement of the instant

3 offense.” U.S.S.G. § 4A1.2.

The district court clearly misapplied these Guidelines. At

sentencing, the district court explained that it was assigning

Jones a criminal history point for each of Jones’ prior

convictions, including his March 1988 conviction for theft.

Because Jones was sentenced for this offense in March 1988, and for

a term of 6 months deferred probation, the district court should

not have assigned him a criminal history point for this offense.

Thus, his guideline range of imprisonment should have been 51-63

months rather than 63-78 months.

We have frequently found plain error where the district court

misapplied the Guidelines in a similar manner. See United States

v. Franks,

(5th Cir. 1995) (holding that the

district court committed plain error when it relied on the PSR and

applied an incorrect base level offense under the Guidelines);

United States v. Alderholt,

(5th Cir.

1990)(same); United States v. Hoster,

(5th

Cir. 1993) (holding that the district court committed plain error

when, in reliance on the PSR, the court used the wrong guideline

for computing the defendant’s drug quantity). See also United

States v. Wallace,

(7th Cir. 1994)(holding that

the district court committed plain error where it awarded criminal

history points for offenses of less than thirteen months that the

defendant committed more than ten years before the instant

offense). Moreover, because the district court’s error resulted in

a higher sentence for the defendant -- perhaps by as much as 14

4 months -- the error clearly affected the defendant’s substantial

rights. Compare United States v. Leonard,

(5th

Cir. 1998)(holding that district court’s error did not affect

defendant’s substantial rights where original sentence was still

permissible under correct guideline range). Accordingly, we

conclude that the district court committed plain error.

For the foregoing reasons, the sentence imposed by the

district court is VACATED and REMANDED for resentencing consistent

with this opinion.

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