                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 09-11621         ELEVENTH CIRCUIT
                                                     DECEMBER 12, 2011
                            Non-Argument Calendar
                                                          JOHN LEY
                          ________________________
                                                           CLERK

                 D. C. Docket No. 08-00040-CR-4-RH-WCS-3

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

GERALD WILLIAMS,

                                                             Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                              (December 12, 2011)

Before TJOFLAT, CARNES and FAY, Circuit Judges.


PER CURIAM:

      Gerald Williams pled guilty to three counts of bank fraud, in violation of 18
U.S.C. § 1344, and the district court sentenced him on each count to a prison term

of 151 months, the terms to run concurrently. He appeals his sentences on two

grounds: (1) the district court erred in enhancing his base offense level by four

levels under U.S.S.G. § 2B1.1(b)(2)(B) on a finding that his offenses involved

more than 50 victims; (2) the district court, in fixing his criminal history category

at III, plainly erred in assessing two criminal history points under U.S.S.G. §

4A1.2(c) for committing the misdemeanor offenses of failure to register as an ex-

felon as required by Nevada law. While this appeal was pending, the district court

announced that it had erred in finding that the offenses of conviction involved

more than 50 victims; they involved 27 victims instead. The Government agrees

and joins Williams in asking that his sentences be vacated and the case remanded

for resentencing. We grant that relief after addressing Williams’s second ground

for reversal.

       We address that ground for plain error. United States v. Chisholm, 73 F.3d

304, 307 (11th Cir. 1996). The plain error standard is met only if three elements are

satisfied: (1) there is error, (2) the error is plain or obvious, and (3) the error affects

the appellant’s substantial rights. An error cannot be “plain” where there is no

precedent of the Supreme Court or this court establishing the error. United States




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v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).1 But even if error that is

plain has occurred, we will not upset the district court’s judgment unless the error

seriously affects “the fairness, integrity, or public reputation” of the defendant’s

sentencing proceeding. Id.

       Under the Guidelines, prior sentences for misdemeanors are generally

counted in the defendant’s criminal history score. U.S.S.G. § 4A1.2(c); United

States v. Horton, 158 F.3d 1227, 1227 n.1 (11th Cir. 1998). However, under §

4A1.2(c)(1)(2008), sentences for certain enumerated offenses, and similar offenses,

are only scored if (A) the sentence was a term of probation of more than one year

or a term of imprisonment of at least 30 days, or (B) the prior offense was similar

to the instant offense. U.S.S.G. § 4A1.2(c)(1); United States v. Hernandez, 160

F.3d 661, 671 (11th Cir. 1998). The enumerated offenses include driving with an

invalid license, giving false information to a police officer, passing bad checks,

trespassing, and non-support. U.S.S.G. § 4A1.2(c)(1). Additionally, offenses such

as fish and game violations, juvenile status offenses, truancy, loitering, public

intoxication, and minor traffic infractions are never scored. Id. at (c)(2). The

commentary to § 4A1.2(c) directs the court to compare unlisted offenses to the

enumerated offenses under a multi-factor “common sense approach,” looking at

       1
           Or the error is becomes clear because the language of the relevant statute or rule controls
the district court’s decision. Lejarde-Rada, 319 F.3d at 1291.

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(1) the punishment imposed, (2) the perceived seriousness, (3) the elements, (4) the

level of culpability involved, and (5) the likelihood of recurring criminal conduct.

Id. at. comment. n.12(A).

      Under Nevada law, a “convicted person,” who is either a resident or a

registered nonresident, must notify local law enforcement within 48 hours of any

change in address. Nev. Stat. Ann. § 179C.110; see also id. at § 179C.010. Failure

to do so is a misdemeanor. Id. at § 179C.220. Williams committed the offense on

two occasions.

      This misdemeanor offense of failure to register as an ex-felon is not

specifically excluded under the Guidelines. Williams points out similarities

between the offense and the minor offenses excluded under § 4A1.2(c)(1) and (2),

including the fact that he received short two-day jail sentences and that failure to

register is a passive offense based on status, but these similarities did not inform

the district court that is application of § 4A1.2(c) was erroneous. He cites cases

from other circuits dealing with the issue, but no decision of the Supreme Court or

this court—because there is none—resolving the issue. In short, nothing in the

relevant precedent established that the assessment of two criminal history points

under § 4A1.2(c) constitute error. Aside from the foregoing, Williams has not

demonstrated that such assessment affected the public reputation, fairness, or


                                           4
integrity of his sentencing proceeding.

      In sum, Williams’s second ground for reversal fails. With this holding as

part of our mandate, Williams’s sentences are VACATED and the case is

REMANDED for resentencing.

      SO ORDERED.




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