United States v. Clements

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-31134
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL SCOTT CLEMENTS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CR-50028-DEW-1
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Before JONES, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
A jury convicted Michael Scott Clements of conspiracy to
commit mail fraud, mail fraud, interstate transportation of stolen
motor vehicles, and money laundering, in violation of 18 U.S.C.
§§ 2, 371, 1341, 1957, 2312. The district court sentenced Clements
to 84 months in prison and three years of supervised release.
Clements challenges his sentence on two grounds.
First, Clements argues that the district court erroneously
used U.S.S.G. § 2S1.1(a)(2), rather than § 2S1.1(a)(1), as a
starting point for determining his guideline sentencing range. The
*
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this opinion should not be published and is not precedent except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.
Government concedes this error. After a de novo review, we
conclude that, because the laundered funds were derived from
offenses committed directly by Clements, the district court should
have used § 2S1.1(a)(1). See United States v. Villanueva, 408 F.3d
193, 202, 203 n.9 (5th Cir. 2005). Absent the erroneous
application of § 2S1.1(a), the applicable sentencing range would
have been lower than the range the district court considered, and
the maximum guideline sentence would have been lower than the 84-
month sentence that the district court imposed. In such a case, a
remand for resentencing is appropriate. See United States v.
Southerland, 405 F.3d 263, 270 (5th Cir. 2005).
Second, Clements argues that his sentence is invalid in light
of the Supreme Court’s recent opinion in United States v. Booker,
125 S. Ct. 738 (2005). In light of the foregoing, however, we need
not reach that argument. See Southerland, 405 F.3d at 270.
For the reasons stated above, we VACATE Clements’s sentence
and REMAND for resentencing in accordance with this opinion and
Booker.
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