                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          OCT 30 2000
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 99-6362
                                                  (D.C. No. CR-98-209-T)
 RONALD MARK HARRIS,                                    (W.D. Okla.)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, KELLY, and HENRY, Circuit Judges.


       Petitioner-Appellant Ronald Mark Harris pled guilty to bank fraud in

violation of 18 U.S.C. § 1344(2). He was sentenced to 63 months imprisonment,

five years supervised release, and ordered to pay a $100 special assessment and

restitution of $949,737.03. Mr. Harris appeals the sentence imposed, alleging

three grounds of district court error: (1) improper use of the 1998, rather than the

1997, version of the Sentencing Guidelines; (2) upward departure based on

impermissible factors; and (3) restitution awarded to individuals who were not



       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
victims of the underlying bank fraud. We decide only the first ground, reverse,

and remand for resentencing de novo.

       Mr. Harris did not object at the time of sentencing, and we therefore

review only for plain error.   See United States v. Gilkey , 118 F.3d 702, 704 (10th

Cir. 1997). The underlying bank fraud scheme occurred between November 5,

1993 and April 30, 1998. Mr. Harris was sentenced in September 1999 under the

November 1998 version of the Sentencing Guidelines. Ordinarily, a sentencing

court must use the version of the Guidelines in effect on the date of sentencing,

unless to do so would violate the Ex Post Facto Clause “‘by altering the

definition of criminal conduct or increasing the punishment for the crime.’”

United States v. Svacina , 137 F.3d 1179, 1186 (10th Cir. 1998) (citation

omitted). Sentencing a defendant under a guideline which “contains an

adjustment that did not exist at the time of the offense” would violate this

principle. United States v. Nichols , 169 F.3d 1255, 1270 n.3 (10th Cir. 1999).

       Mr. Harris received upward adjustments to his sentence under U.S.S.G. §

3A1.1(b). The 1997 version of that section states:

              If the defendant knew or should have known that a
              victim of the offense was unusually vulnerable due to
              age, physical or mental condition, or that a victim was
              otherwise particularly susceptible to the criminal
              conduct, increase by 2 levels.

The 1998 version is markedly different.


                                          -2-
             (1) If the defendant knew or should have known that a
             victim of the offense was a vulnerable victim, increase
             by 2 levels.
             (2) If (A) subdivision (1) applies; and (B) the offense
             involved a large number of vulnerable victims, increase
             the offense level determined under subdivision (1) by   2
             additional levels.

Mr. Harris was given a 2 point enhancement under § 3A1.1(b)(1) and an

additional 2 point enhancement under § 3A1.1(b)(2). Because § 3A1.1(b)(2) was

not in effect at the time of the underlying conviction, the district court plainly

erred in applying it to Mr. Harris, and we will remand for resentencing.

      Finally, should the district court again order restitution under 18 U.S.C.

§ 3663(a)(3) as agreed in the plea agreement, 1 R. doc. 11 at 6, it should identify

the basis for any restitution to investors in Mr. Harris’ family entertainment

center venture (“The Original Spot”), as opposed to victims of the bank fraud

scheme. See 18 U.S.C. § 3663(a)(2);     United States v. Sapp , 53 F.3d 1100, 1105

(10th Cir. 1995).

      REVERSED and REMANDED for de novo sentencing.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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