                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-4507


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

ALVIN JOSEPH ROSS, JR., a/k/a hrnybtmincharlotte, a/k/a Jacob
Jingleheimer,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:07-cr-00102-LHT-1)


Submitted:    October 1, 2009              Decided:   November 18, 2009


Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, FEDERAL DEFENDERS OF
WESTERN   NORTH  CAROLINA,   INC.,  Charlotte,   North  Carolina;
Fredilyn Sison, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Asheville, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina; Amy
E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Alvin Joseph Ross pled guilty to one count of traveling in

interstate commerce for the purpose of engaging in a sexual act

with a minor who was (a) over 12 years-old but less than 16

years-old and (b) at least four years younger than Ross, in

violation of 18 U.S.C. § 2423(b).                    Ross was sentenced to 66

months of imprisonment, and he now appeals the sentence arguing

that     the   district       court    erroneously         applied    a   two-level

enhancement under U.S.S.G. § 2G1.3(b)(2)(B).                  For the reason set

forth    below,   we   vacate    the    sentence      and    remand   for   further

proceedings.

       On   appeal,    Ross    contends       that   the    enhancement     –   which

generally applies when a defendant unduly influences a minor to

engage in prohibited sexual conduct -- is inapplicable because

the     “minor”   in   this     case    was     actually     an   undercover      law

enforcement officer with whom he communicated via the internet.

At the time of the sentencing, a circuit split existed on the

applicability of the enhancement in this circumstance, and this

Court had not addressed the issue.               During the pendency of this

appeal,     the   United   States      Sentencing      Commission     amended     the

Commentary to § 2G1.3 expressly to resolve the circuit split,

explaining that “subsection (b)(2)(B) does not apply in a case

in which the only ‘minor’ . . . involved in the offense is an



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undercover law enforcement officer.”             U.S.S.G. App. C. Supp.,

Amend. 732 (effective Nov. 1, 2009).

     In light of the amendment, we requested supplemental briefs

from the parties on the question of whether the amendment is

applicable in this case.          Based on our circuit precedent, the

parties contend that the amendment is a “clarifying amendment”

which must be applied on appeal and, therefore, we should remand

the case to the district court for resentencing.                   We agree.

See, e.g., United States v. Goines, 357 F.3d 469, 474 (4th Cir.

2004)   (explaining   the     applicability    of   “clarifying”   guideline

amendments on appeal).

     Accordingly, we vacate Ross’ sentence and remand this case

to the district court for resentencing.             We dispense with oral

argument   as   the   facts    and   legal    contentions   are    adequately

presented in the materials before the Court and argument would

not aid the decisional process.

                                                      VACATED AND REMANDED




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