                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-25-2004

USA v. Irvin
Precedential or Non-Precedential: Precedential

Docket No. 03-1862




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                                           Research & Writing Specialist
                    PRECEDENTIAL           Federal Court Division
                                           Defender Association of Philadelphia
                                           Suite 540 West - Curtis Center
 IN THE UNITED STATES COURT OF             Independence Square West
             APPEALS
                                           Philadelphia, PA 19106
      FOR THE THIRD CIRCUIT
          ______________
                                                  Attorneys for Appellant
             No. 03-1862
           _______________                 PATRICK L. MEEHAN
                                           United States Attorney
   UNITED STATES OF AMERICA                LAURIE MAGID
                                           Deputy United States Attorney
                                             For Policy and Appeals
                    v.                     ROBER A. ZAUZMER
                                           Assistant United States Attorney
             KYLE IRVIN,                   Senior Appellate Counsel
                                           FRANK R. COSTELLO, JR. (Argued)
                Appellant
                                           Assistant United States Attorney
  _____________________________
                                           615 Chestnut Street
                                           Suite 1250
   On Appeal from the United States
                                           Philadelphia, PA 19106
              District Court
for the Eastern District of Pennsylvania
                                                  Attorneys for Appellee
       Criminal No. 99-cr-00566
                                                 ________________________
   District Judge: Honorable Stewart
                 Dalzell
                                                  OPINION OF THE COURT
 ______________________________
                                                 ________________________
       Argued March 26, 2004
                                           BECKER, Circuit Judge.
  Before: AMBRO, CHERTOFF and
      BECKER, Circuit Judges
                                                   This is an appeal by Kyle Irvin from
       (Filed May 25, 2004 )               a judgment in a criminal case entered
                                           pursuant to a plea of guilty to two counts
MAUREEN KEARNEY ROWLEY                     of being a previously convicted felon in
Chief Federal Defender                     possession of a firearm in violation of 18
DAVID L. MCCOLGIN                          U.S.C. § 922(g). Irvin was sentenced to
Assistant Federal Defender                 seventy-two months in prison. The appeal,
Supervising Appellate Attorney             which presents three sentencing issues,
DINA CHAVAR (Argued)                       arises out of the tragic accidental shooting
of Irvin’s three-year-old son, Daequan, on                              I.
June 9, 1998, at the home of Irvin’s
                                                          The District Court enhanced Irvin’s
mother, Dollie Irvin, where Irvin and
                                                   offense le vel un der U.S .S.G . §
Daequan were living. While playing,
                                                   2K2.1(b)(1)(B) for possessing eight
Daequan found a .40 caliber Smith &
                                                   firearms, and, because Irvin denied
Wesson pistol that Irvin kept in their room,
                                                   possession of those firearms, refused to
and accidentally shot himself with it.
                                                   grant a reduction under U.S.S.G. § 3E1.1
Daequan died four days later in the
                                                   for acceptance of responsibility. Irvin
hospital. Police recovered the gun that
                                                   contends that this was error in view of the
Daequan accidentally fired after Irvin told
                                                   lack of direct proof that he exercised
them where it could be found.
                                                   dominion and control over all of the
       Irvin was prosecuted by the                 firearms. In our view, however, neither
Commonwealth of Pennsylvania for                   the District Court’s finding that Irvin
endangering the welfare of children and            constructively possessed the other six guns
involuntary manslaughter, and by the               charged in count II, nor its finding that
federal government on the felon-in-                Irvin was not entitled to an adjustment for
possession charge. He entered guilty pleas         acceptance of responsibility, was clearly
in both cases. The issues on appeal pertain        erroneous.2
to sentencing determinations made by the
                                                                        A.
District Court regarding the number of
weapons Irvin had in his possession                        On the day of the shooting Irvin
(which bears on his Sentencing Guidelines          advised the first officer on the scene that
range); whether he accepted responsibility;        his son found his gun and accidentally
and whether inclusion of the state offenses        fired it, that he did not have a license for
in his criminal history calculation was            the gun, and that he had thrown the gun
plain error. We reject Irvin’s first two           out the back bedroom window. He was
assignments of error, but conclude that the
District Court plainly erred in including
the state offenses in the criminal history         timely, and we have jurisdiction under 28
calculation. We will therefore vacate the          U.S.C. § 1291 and 18 U.S.C. § 3742(a).
judgment of the District Court and remand
                                                     2
for resentencing.1                                    We exercise plenary review over a
                                                   district court’s legal interpretation of the
                                                   Sentencing Guidelines, but our review of
  1
   The judgment of the District Court              the factual findings supporting a district
was originally entered on June 12, 2000,           court’s application of the Guidelines is
but on M arch 19, 2003, the District Court         only for clear error. See United States v.
denied Irvin’s motion under 28 U.S.C. §            Fenton, 309 F.3d 825, 827 n.2 (3d Cir.
2255 for resentencing. Irvin’s notice of           2002) (citing United States v. Butch, 256
appeal on March 26, 2003, was therefore            F.3d 171 (3d Cir. 2001)).

                                               2
arrested and taken into custody. Later that         were not his.
same day at the station house, Irvin told
                                                           The District Court discredited
officers that, in fact, the gun could be
                                                    Irvin’s tes ti m ony concerning his
found in the back bedroom underneath the
                                                    knowledge, possession, and ownership of
mattress with some other guns. When a
                                                    the other six firearms and set forth the
search of M rs. Irvin’s home was conducted
                                                    reasons for its findings.       The Court
pursuant to a warrant, six guns were
                                                    concentrated on (1) Irvin’s initial lie to the
recovered from her house in addition to the
                                                    police (he told them that he had thrown the
.40 caliber Smith & Wesson pistol. Just as
                                                    gun out the window); (2) the fact that
he had told the police, Irvin’s pistol was
                                                    rather than get medical help for his son,
found in the upstairs back bedroom
                                                    Irvin first hid the gun and spent shell,
underneath the mattress. Two other guns
                                                    because he knew he could not legally have
were also under the mattress, and two
                                                    possession of a gun; and (3) its conclusion
more were under the bed. A sixth gun was
                                                    that Irvin’s testimony that it was his
found in the closet of that same bedroom.
                                                    “instinct” to put the gun in the back
A seventh gun was found in the living
                                                    bedroom and that “I don’t know why I had
room of the home.
                                                    a gun” was unworthy of belief. The Court
        There was in fact no direct evidence        ultimately determined that Irvin possessed
(e.g., fingerprints, purchase receipts) that        a total of eight firearms.3          It then
Irvin had dominion and control over the             concluded that Irvin was not entitled to a
other guns—five of which were found in              reduction in his offense level for
the back bedroom, which was where                   acceptance of responsibility because he
Irvin’s cousin Lucius Joe resided, and one          had offered false testimony, stating that “a
of which was found in the common area               defendant who has . . .           presented
living room. Irvin testified that he kept the       absolutely fantastic testimony . . . is not
gun his son used in the middle bedroom              one who has shown acceptance of
where they slept; that after the tragedy he         responsibility.”
“instinctively” hid the gun used by his son
                                                                         B.
under the mattress in the back bedroom;
that he did not know the other two guns                    The government had the burden to
were under the mattress until he saw them           prove, by a preponderance of the evidence,
while hiding the gun; that he was unaware
of the presence of any of the other four
                                                      3
weapons found in the house (one of which                The foregoing catalog only lists seven
was found in the open in the living room);          firearms. The eighth was recovered by
that Lucius Joe had previously showed him           police following a separate incident
three of the guns that were found in the            almost a year before in a consent search
back bedroom on June 9, 1998; and that              of Irvin’s residence at the time. This
the six other guns found on June 9, 1998            incident was charged in a separate count
                                                    of the indictment.

                                                3
see United States v. Evans, 155 F.3d 245,           originally been purchased in. While the
253 (3d Cir. 1998), that Irvin knew of the          question is quite close, at least with respect
guns’ presence and had control or the               to the gun found in the closet in Lucius
power and intention to exercise control             Joe’s bedroom, which there is no evidence
over them, see United States v. Iafelice,           Irvin ever saw, we think that this evidence
978 F.2d 92, 96 (3d Cir. 1992). Some of             was sufficient so that the District Court’s
our cases involving possession of                   findings were not clearly erroneous.4
controlled substances have held that mere
                                                             We also find no merit in Irvin’s
evidence of presence in a house where
                                                    contention that the District Court
drugs were found, proximity to the drugs
                                                    improperly shifted the burden of proof by
(and knowledge that they were there), and
                                                    requiring him to disprove that he
association with other residents are not
                                                    possessed the six firearms at issue and
enough to establish dominion and control.
                                                    failed to make the “required findings”
See United States v. Jenkins, 90 F.3d 814
                                                    concerning the issue of possession. This
(3d Cir. 1996); United States v. Brown, 3
                                                    simply did not happen. We defer to the
F.3d 673 (3d Cir. 1993).
                                                    District Court’s discrediting of Irvin’s
        In this case, however, there was            denial of possession of the disputed six
more: Irvin hid the gun his son had used            guns, and its concomitant denial of the
right next to two other handguns, in the            a dj u s tm e n t f o r a c c e p t a n c e o f
same room that a shotgun and two other              responsibility.     See United States v.
rifles were discovered. Further, he initially       Cianscewski, 894 F.2d 74, 83 (3d Cir.
lied to the police about the location of the        1990) (determination that defendant did
gun his son had used, saying that he had            not accept responsibility will be reversed
thrown it out the window. Additionally,             only if “clearly erroneous”). At all events,
Irvin had a prior firearms possession, as           we agree that when a defendant denies
reflected by the predicate conviction for           relevant conduct that the district court
the felon-in-possession charge—a 1995               subsequently determines to be true, a
state conviction for carrying a firearm in a        district court may properly deny a
public place and carrying firearms without          downward adjustment for acceptance of
a license. See United States v. Jernigan,           responsibility. See U.S.S.G. § 3E1.1
341 F.3d 1273, 1281-82 (11th Cir. 2003)             Application Note 1(a).
(prior convictions involving knowledge of
presence of gun); United States v. Cassell,
                                                      4
292 F.3d 788, 793 (D.C. Cir. 2002);                     Reversing the District Court’s finding
United States v. Moorehead, 57 F.3d 875,            regarding Irvin’s possession on any one
878 (9th Cir. 1995). With respect to the            of the six disputed guns would not be
gun found in the living room, it was out in         harmless because U.S.S.G. §
the open, and found in the very box that            2K2.1(b)(1)(B), under which Irvin’s
the gun Irvin admittedly possessed had              sentence was enhanced, requires a
                                                    minimum of eight firearms.

                                                4
                     II.                            endangering charge.
       We turn to the last issue on                         On September 14, 1999, Irvin was
appeal—whether Irvin’s criminal history             indicted in the District Court on two
score erroneously included one point for            counts of being a felon in possession of a
the sentence he received for the                    firearm in violation of 18 U.S.C. §
involuntary manslaughter conviction in              922(g)(1). Count II of the indictment
state court. Irvin contends that that               charged Irvin with possession of the .40
offense conduct was part of the same                caliber Smith & Wesson pistol that
course of conduct as the instant offense,           Daequan accidentally fired on June 9,
and therefore should not have counted as a          1998.5     This gun was recovered by
prior sentence pursuant to U.S.S.G. §               Philadelphia police that same day and
4A1.2(a)(1). We agree.                              formed the basis for the state involuntary
                                                    manslaughter charge. Irvin entered into a
                     A.
                                                    plea agreement which provided that he
       Shortly after Daequan’s death, the           would plead guilty to both counts.
Commonwealth of Pennsylvania charged                However, on the second count, which
Irvin with endangering the welfare of               listed the seven guns recovered from his
children, involuntary manslaughter, and             mother’s home, Irvin agreed only to
related offenses. It is not disputed that the       possessing the gun listed first in that
conduct that was the subject of these               count—the .40 caliber Smith & Wesson
charges was Irvin’s leaving the pistol in a         pistol that he told police on June 9, 1998,
place where his three-year-old son could            belonged to him. The plea agreement also
easily reach the firearm. On November               included stipulations that Irvin would
10, 1998, Irvin pleaded guilty to the               receive a two point reduction for
endangering and manslaughter charges                acceptance of responsibility under
before Court of Common Pleas Judge                  U.S.S.G. § 3E1.1(a), and an additional one
Carolyn Temin. During the guilty plea               point reduction for timely notifying the
colloquy, Judge Temin advised Irvin that            government of his intention to plead guilty
in order for the Commonwealth to prove              under U.S.S.G. § 3E1.1(b).
involuntary manslaughter, it would have to
                                                           At sentencing, the District Court
prove that Irvin “did something . . . in a
                                                    adopted the criminal history calculation in
highly negligent manner, and in this case
                                                    the presentence report, which added one
that would involve leaving a gun that
                                                    point to Irvin’s criminal history score
could be fired in a place where a small
                                                    under U.S.S.G. § 4A1.1(c) for the state
child could pick it up and fire it.” On
December 22, 1998, Judge Temin
sentenced Irvin to seven years’ probation
                                                      5
on the involuntary manslaughter charge                  Count I of the indictment was the
a n d suspended sentence on th e                    earlier and unrelated possession offense
                                                    alluded to supra note 3.

                                                5
sentence that Irvin had received on the            instant offense.” Such was the case here:
involuntary manslaughter charge resulting          The conduct constituting the instant
from the accidental shooting that occurred         offense (i.e., the felon-in-possession
on June 9, 1998. The Court did so even             conviction) occurred, per the indictment,
though U.S.S.G. § 4A1.2(a)(1), and                 on June 9, 1998; sentencing for the instant
Application Note 1 thereto, direct that only       offense occurred on June 13, 2000; but
prior sentences involving conduct that was         sentencing on the state manslaughter
not part of the instant offense are counted        conviction occurred prior thereto, on
for criminal history purposes. Irvin argues        December 22, 1998.
that the state manslaughter conviction
                                                           Application Note 1 further explains
should not have been included in his
                                                   that “[c]onduct that is part of the instant
criminal history calculation because it was
                                                   offense means conduct that is relevant
predicated on conduct that was part of the
                                                   conduct to the instant offense under the
instant offense. Without the inclusion of
                                                   provisions of § 1B1.3 (Relevant
the one point he received for the state
                                                   Conduct).” Thus, if the conduct leading to
manslaughter conviction, Irvin would have
                                                   the manslaughter conviction would be
been placed in criminal history category I.
                                                   relevant conduct under § 1B1.3, then the
Instead, Irvin was sentenced within the
                                                   manslaughter conviction cannot be
guideline range for a criminal history
                                                   counted towards Irvin’s criminal history
category II offender. Correcting this error
                                                   score. The government conceded this in
reduces Irvin’s guidelines range from
                                                   its papers filed in connection with Irvin’s
sixty-three to seventy-eight months to
                                                   28 U.S.C. § 2255 hearing, see supra note
fifty-seven to seventy-one months.
                                                   1, stating that “the death of defendant’s
                    B.                             son could have been included as relevant
                                                   conduct, see Sections 2K2.1(c)(1)(B) and
        The key section before us is
                                                   2A1.4(a)(1) of the Guidelines, [but] it
U.S.S.G. § 4A1.2. Subsection (a) defines
                                                   would not have increased the defendant’s
“prior sentences” for the purposes of
                                                   offense level.” App. 147a.
determining which sentences should be
included in a defendant’s criminal history                 As we see it, the essence of both
score: “The term ‘prior sentence’ means            offenses was Irvin’s criminal possession of
any sentence previously imposed upon               the .40 caliber Smith & Wesson pistol. He
adjudication of guilt . . . for conduct not        was convicted of the involuntary
part of the instant offense.” Application          manslaughter of his son as a result of his
Note 1 to § 4A1.2 elaborates that “[a]             criminally negligent conduct in leaving
sentence imposed after the defendant’s             within reach of his son the pistol which his
commencement of the instant offense, but           son accidentally fired. The present offense
prior to sentencing on the instant offense,        involves the federal prosecution for Irvin’s
is a prior sentence if it was for conduct          illegal possession of that same gun. We do
other than conduct that was part of the            not see how one can separate the prior

                                               6
state offense from the instant offense.                    In reaching our decision, we noted
                                                   that the conduct underlying the two
       There is no perfectly analogous
                                                   offenses was connected in that the
case. The most apposite is our decision in
                                                   defendant “could not have forged a check
United States v. Hallman, 23 F.3d 821 (3d
                                                   until he had stolen the checks.” Id. Just as
Cir. 1994). The defendant there was
                                                   Hallman could not have forged the check
arrested for passing a stolen check at a
                                                   until he had stolen it, Irvin could not have
hotel. A search of his car uncovered
                                                   exercised criminally negligent control over
checks and credit cards stolen from the
                                                   his Smith & Wesson pistol on June 9, 1998
mail. Id. at 823. It was apparent that the
                                                   unless he was in possession of it on the
stolen check passed at the hotel had been
                                                   same date.       Following Hallman, the
stolen from the mail. Id. at 826. The
                                                   conduct underlying Irvin’s manslaughter
defendant pled guilty to the state forgery
                                                   conviction was relevant conduct for the
charge based on passing the stolen check,
                                                   instant offense, and thus the manslaughter
and was sentenced. He later pled guilty to
                                                   conviction should not have been included
a federal indictment charging possession
                                                   in his criminal history.
of stolen mail. At the sentencing on the
federal charge, the state sentence on the                 The government urges, however,
forgery charge was included in defendant’s         that we approach the case by determining
criminal history score as a prior sentence.        whether the conduct of the present offense
W e reversed an d remanded f o r                   is “severable” from that of the prior
resentencing, holding that the forgery was         offense, in which case the prior offense
“related” to the mail fraud in that it was         may be considered in the criminal history
part of the same plan or scheme—thus               calculation. It cites United States v.
making it “relevant conduct,” and                  Banashefski, 928 F.2d 349, 352-53 (10th
excluding it from the criminal history             Cir. 1991), which concluded that it was
computation.6

                                                   on the same occasion, (B) were part of a
  6
    We put “related” in quotation marks            single common scheme or plan, or (C)
to distinguish its usage here from its             were consolidated for trial or
usage as a term of art in the Guidelines’          sentencing.” Id. Application Note 3. In
similar, but distinct, concept of a “related       Hallman, the Court explicitly stated that
case.” Under U.S.S.G. § 4A1.2(a)(2)                there was no Application Note 3 “related
two (or more) related cases are counted            cases” argument to be made because the
as only one prior offense for purposes of          defendant had only one prior sentence.
computing an offender’s criminal history           23 F.3d at 825. Here, it is undisputed
score. Unless the offenses were                    that Irvin’s manslaughter conviction and
separated by an intervening arrest, “prior         his endangering conviction were related
sentences are considered related if they           cases; the issue we address is their
resulted from offenses that (A) occurred           relationship to Irvin’s federal conviction.

                                               7
proper to include a state conviction for            contrast, in count II the government did
possession of a stolen car in the criminal          not indict Irvin for, nor did it at any time
history score for sentencing on a felon-in-         adduce evidence of, Irvin’s possession of
possession offense, even though the                 a firearm at any time other than June 9,
firearm in question was found in the car at         1998. Moreover, as a legal matter, we
time of the defendant’s arrest for driving          have not adopted the severability test;
the stolen car. The government asserts              indeed in Hallman we declined to adopt it.
that factors that should be considered in
                                                            The government also relies on
this analysis include temporal and
                                                    United States v. Oser, 107 F.3d 1080 (3d
geographical proximity, the identity of the
                                                    Cir. 1997), for the proposition that where
victims, and the applicable societal harms.
                                                    a defendant’s prior offense played no part
It also relies on another Tenth Circuit case,
                                                    in the determination of his sentence on the
United States v. Browning, 252 F.3d 1153,
                                                    instant offense, the conduct for which he
1159 (10th Cir. 2001), where the Court
                                                    was previously sentenced was not
applied this test and held that because the
                                                    “relevant conduct” for guidelines
defendant unlawfully possessed a firearm
                                                    purposes, and that the prior sentence
before, as well as during and in
                                                    therefore need not be excluded from the
conjunction with, the commission of a
                                                    calculation of his criminal history
state drug trafficking offense, the state
                                                    category. The defendant in Oser was
offense was not part of the firearm
                                                    convicted of a drug conspiracy and money
offense, and thus was properly considered
                                                    laundering, and argued that his prior
as a prior conviction.
                                                    conviction for underreporting of currency
        We find these cases both                    should not have been included in his
distinguishable on their facts and at odds          criminal history computation because the
with our jurisprudence. The Court of                conduct underlying the underreporting-of-
Appeals in both Banashefski and Browning            currency conviction was relevant conduct
made clear that, as a factual matter, there         to the drug conspiracy and money
was evidence that the defendant possessed           laundering.
the firearm in question at a time before
                                                           Irvin argues that Oser is
commission of the offense that the
                                                    distinguishable. In Irvin’s submission, the
government sought to include in the
                                                    reasoning of Oser depended on the factual
defendant’s criminal history score. See
                                                    determination that no connection was
Browning, 252 F.3d at 1159 (“[Browning]
                                                    shown between the underreporting of
admitted to getting the gun in Arizona
                                                    currency and the drug conspiracy / money
before he [engaged in illegal drug
                                                    laundering offense.          Because this
activity].”); Banashefski, 928 F.2d at 352
                                                    connection was absent, the conduct
(explaining that Banashefski’s felon-in-
                                                    underlying the underreporting-of-currency
possession offense “was complete before
                                                    offense was not relevant conduct to Oser’s
he approached the car [that he stole]”). In
                                                    instant offense, and so the sentence for

                                                8
underreporting of currency could be                    have already noted in distinguishing
counted as a prior sentence for purposes of            Banashefski and Browning, the federal
calculating Oser’s criminal history score.             indictment does not so allege, nor was any
In contrast, Irvin points out, his criminally          proof offered to that effect, so that
negligent control of the Smith & Wesson                argument fails.
“occurred during the commission” of his
                                                                            C.
illegal possession of that firearm, U.S.S.G.
§ 1B1.3(a)(1), and hence the state sentence                    In sum, Irvin’s sentence on the state
on the involuntary manslaughter charge                 manslaughter conviction should not have
was relevant conduct. We agree; the                    been included in his criminal history
offense committed by Irvin, as charged in              computation. But for this error, Irvin
both the state and federal indictments,                would have been sentenced as a criminal
centered on the passive act of possessing a            history category I offender, with a
firearm on June 9, 1998.                               correspondingly lower guideline range. As
                                                       noted above, we review for plain error. To
        Mo reover, the government’s
                                                       establish plain error, a defendant must
characterization of Oser misreads that case
                                                       prove that there is “(1) ‘error,’ (2) that is
and Application Note 1 to U.S.S.G. §
                                                       ‘plain,’ and (3) that ‘affects substantial
4A1.2. The test is not whether a separate
                                                       rights.’ If all three conditions are met, an
offense “played [a] part” in determining
                                                       appellate court may then exercise its
the offense level (presumably in the sense
                                                       discretion to notice a forfeited error, but
of arithmetically altering the offense
                                                       only if (4) the error ‘seriously affects the
level), but rather whether the underlying
                                                       fairness, integrity, or public reputation of
conduct was “relevant conduct.” Even
                                                       judicial proceedings.’” Johnson v. United
though not all relevant conduct affects the
                                                       States, 520 U.S. 461, 467 (1997) (citations
ultimate offense level, Application Note 1
                                                       omitted). With respect to this final step,
excludes from the criminal history
                                                       we have held that we will generally
computation sentences based on relevant
                                                       exercise our discretion to recognize a plain
conduct. In essence, the government
                                                       error in the (mis)application of the
argues that it should be able to elect to
                                                       Sentencing Guidelines. See United States
treat, at its option, certain activity either as
                                                       v. Knight, 266 F.3d 203, 206 n.7 (3d Cir.
relevant conduct, or as a prior offense.
                                                       2001) (“[A] sentence resulting from a
This “heads I win, tails you lose” gambit
                                                       plainly erroneous misapplication of the
simply has no basis in the regime of the
                                                       Guidelines gives rise to at least a
Sentencing Guidelines.
                                                       presumptively appropriate occasion for
        The government’s final argument is             exercise of our discretionary power to
that the federal crime differs from the state          correct the error.”).
crime because Irvin possessed the weapon
                                                               As we have shown, there was error
before June 9, 1998, but after his 1995
                                                       here.    It was also plain. We have
predicate felony conviction. But as we

                                                   9
explained that this prong of the test “is met
if the error is ‘obvious’ or ‘clear under
current law.’” United States v. Vazquez,
271 F.3d 93, 100 (3d Cir. 2001) (en banc)
(quoting United States v. Olano, 507 U.S.
725, 734 (1993)). Coupled with the
relative clarity of the Sentencing
Guidelines, our decision in Hallman is
sufficiently on-point to satisfy the
requirement that error be “plain.” Finally,
the error affected Irvin’s substantial rights:
Without the addition of the criminal
history point for the manslaughter
conviction, Irvin now falls in the guideline
range for category I, offense level 25,
which is fifty-seven to seventy-one
months. Irvin received a seventy-two
month sentence, and so was prejudiced by
the Court’s error as his sentence exceeded
the guideline range which should have
been applied.       See United States v.
Knobloch, 131 F.3d 366, 373 (3d Cir.
1997) (plain error affected defendant’s
“substantial right to suffer no greater an
imposition on his liberty than the
Guidelines allow” when error resulted in
higher sentencing range).
      Accordingly, the judgment of
sentence will be vacated and the case
remanded for resentencing.




                                                 10
