                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                     January 14, 2004

                                                              Charles R. Fulbruge III
                                                                      Clerk
                               No. 03-40945
                             Summary Calendar


                      UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,


                                  VERSUS


        ROOSEVELT TERENCE JEROME RAYFORD, also known as TJ,

                                                     Defendant-Appellant.




           Appeal from the United States District Court
                 For the Eastern District of Texas
                       USDC No. 4:02-CR-88-6
                       (                         )


Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

      Roosevelt   Terrence    Jerome   Rayford   appeals   his     sentence

following his guilty plea to Count I of the indictment charging him

with conspiracy to manufacture, distribute, or possess with intent

to manufacture, distribute, or dispense cocaine base and marijuana,

in violation of 21 U.S.C. § 846.           Rayford argues that his case


  *
    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opinion should not be published and is not precedent except under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.
should be remanded to the district court for re-sentencing within

the Guideline range of 262 to 327 months of imprisonment because

the district court erroneously assigned Rayford a base offense

level of 35 under U.S.S.G. § 4B1.1, the career offender guideline.

Rayford’s failure to object to his offense level determination

limits this Court’s review of his sentence to plain error.       See

United States v. Hawkins, 87 F.3d 722, 730 (5th Cir. 1996).

     Our review of the transcript of the sentencing hearing in this

case persuades us that the district court’s erroneous use of

offense level 35 was the result of two express misrepresentations

made by the prosecutor and the probation officer who were present

at the sentencing hearing; i.e. (1) that the district court’s

refusal to find that Rayford was guilty of an obstruction of

justice had no significant impact on his sentence; and (2) that the

applicable offense level for a career offender was 38 for the kind

of conviction to which Rayford plead guilty.

     In its brief, the Government makes no attempt to sustain the

validity of the sentencing of 326 months entered by the district

court in this case, stating:

     Although Rayford’s sentence of 326 months is still within
     the Guideline range of an imprisonment, there is nothing
     in the record to support the conclusion that the district
     court would have sentenced Rayford to the same sentence
     absent the one point error in the offense level.

In its conclusion, the Government requests that “Rayford’s sentence

should be remanded to the district court for re-sentencing within

the Guideline range of 262-327 months.”

                                2
          Under these circumstances, we have no hesitation in concluding

that there was error in this case, such error was clear, and such

error affected Rayford’s substantial rights. See, United States v.

Calverley, 37 F.3d 160 (5th Cir. 1994).       Likewise, we conclude that

such error “seriously affects the fairness, integrity or public

reputation of judicial proceedings.”        See, United States v. Olano,

507 U.S. 725 (1993).          Accordingly, we exercise our discretion to

vacate Rayford’s sentence and remand this case to the district

court for re-sentencing within the Guideline range for Level 34.




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