                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4390



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ROBERT JORDAN FIELDS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:05-cr-01226-MBS)


Submitted:   September 19, 2007           Decided:   October 30, 2007


Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. Reginald I. Lloyd, United States Attorney, Dean A.
Eichelberger, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Robert Jordan Fields (“Fields”) was convicted by a jury

of making a false loan and credit application, 18 U.S.C.A. § 1014

(West Supp. 2007), and was sentenced to a term of twelve months

imprisonment.     Fields contends that the district court erred in

using the 2000 Guidelines Manual to calculate his guideline range

under U.S. Sentencing Guidelines Manual § 2F1.1 (2000).     Because

the district court sentenced Fields under the 2000 manual without

first determining whether use of the 2006 Guidelines Manual would

have subjected Fields to increased punishment in violation of the

Ex Post Facto Clause, or would have resulted in a lower guideline

range, as he asserts, we vacate the sentence and remand the case

for resentencing.

            In 1998, Regions Bank in Aiken, South Carolina, issued a

letter of credit to Fields Real Estate Securities Corporation for

$83,800 for improvements to be made on lots in the Summit Business

Center in Aiken.    When the improvements were not completed by the

city’s deadline, it used the letter of credit to complete the

project.    Regions Bank paid the city $83,800 in November 1999.

            Regions Bank then attempted to collect money from Fields

Real Estate, but instead of demanding the full amount, the bank

first had the company sign an unsecured promissory note, then tried

to convert the obligation to a loan secured by a mortgage on real

property.     Robert Fields provided a mortgage on fourteen lots in


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Aiken that belonged to AKJ Investments, which was owned by his

brother, Michael Fields and his wife, Bea, who lived in Pinehurst,

North Carolina. However, Fields Real Estate subsequently defaulted

on the loan.      After the bank obtained a foreclosure order, it

learned that Michael Fields had not mortgaged the property, that

Michael Fields’ signature on the mortgage was forged, as were the

witnesses’ signatures, and that Robert Fields was not a principal

of AKJ or authorized to act on its behalf.   During an investigation

by the Federal Bureau of Investigation, Fields denied that he had

ever claimed authority to act on behalf of AKJ or that he took the

mortgage documents away from the bank to have them signed by

Michael Fields.     Fields was then charged and convicted of the

instant offenses.

          The   probation   officer    calculated   Fields’   advisory

guideline range using the 2000 Guidelines Manual because it was in

effect at the time of the offense and the probation officer

regarded it as less punitive.*    The probation officer estimated

that Regions Bank’s loss of $83,800 did not result from Fields’


     *
      In 2001, the guideline for fraud, USSG § 2F1.1, was merged
with § 2B1.1 in a major revision of the guidelines for economic
crimes. USSG App. C., amend. 617. In 2003, the base offense level
for any offense covered in § 2B1.1 and punishable by a statutory
maximum of twenty years or more was increased to from 6 to 7. USSG
App. C, amend. 653. The revised § 2B1.1 does not include an
enhancement for more than minimal planning and the definition of
actual loss was changed from “the value of the money, property, or
services unlawfully taken,” USSG § 2F1.1, comment. (n.8) (2001),
to “the reasonably foreseeable pecuniary harm that resulted from
the offense.” USSG § 2B1.1, comment. (n.3(A)(i)).

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actions, but from the bank’s failure to have the line of credit

collateralized and then demand immediate payment from Fields Real

Estate after making payment to the city of Aiken.                    The probation

officer recommended a base offense level of 6 under USSG § 2F1.1,

a   2-level    enhancement      for    more     than   minimal     planning     under

§ 2F1.1(b)(2)(A), and a 2-level adjustment for obstruction of

justice under USSG § 3C1.1, based on Fields’ materially false

statements to the federal agent who investigated the offense.                     The

total offense level was 10. Because Fields was in criminal history

category II, his advisory guideline range was 8-14 months.

              At the sentencing hearing, the district court agreed that

no loss enhancement was warranted, overruling the government’s

objection     to    the   presentence    report.       At   this    point,      Fields

suggested that the enhancement for more than minimal planning

should be eliminated because it was not available under the 2006

Guidelines Manual.        The government pointed out that the “one book

rule” requires a manual to be applied in its entirety.                            U.S.

Sentencing Guidelines Manual § 1B1.11(b)(2).                   The district court

proceeded to sentence Fields using the 2000 Guidelines Manual.

              On   appeal,    Fields    argues     that     the    district     court

incorrectly        calculated   his     guideline      range      using   the    2000

Guidelines Manual because under the 2006 manual his offense level

would have been 9 and his advisory guideline range would have been

6-12 months.         The government appears to concede that Fields’


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offense level would be no more than 9 under the 2006 version of

§ 2B1.1, and his guideline range would thus be 6-12 months.                The

government   does   not   suggest    that    the    district     court   would

necessarily find that a loss enhancement would be warranted if

Fields were sentenced under the 2006 version of § 2B1.1.

           We are not convinced that Fields waived the issue by not

raising it until after the sentencing court ruled at the sentencing

hearing that no loss enhancement should be made, as the government

argues.   If the defendant does not raise the issue of which manual

applies, either in the district court or on appeal, the appeals

court has the discretion to address the issue sua sponte, if

necessary.   United States v. Heater, 63 F.3d 311, 331 n.5 (4th Cir.

1995) (choosing to address Ex Post Facto issue although appellant

did not raise it); cf. United States v. Hartzog, 983 F.2d 604, 608

(4th Cir. 1993) (declining to reach issue because it was not raised

below).

           The   government   contends      that   any   error   is   harmless

because Fields’ twelve-month sentence falls within the overlap of

the ranges that would apply under either the 2000 or the 2006

Guidelines Manual without a loss enhancement.             Had the district

court stated that it would impose a sentence of twelve months

regardless of which guideline range was the correct one, any error

would be harmless and appellate review would be unnecessary.

United States v. Smith, 914 F.2d 565, 569 n.3 (4th Cir. 1990).


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However, the district court did not so find, and when a defendant's

guideline range has been improperly computed, resentencing is

required even though the sentence imposed was within the overlap of

the sentencing range which should have been used because the court

might impose a different sentence when using the correct range.

United States v. McCrary, 887 F.2d 485 (4th Cir. 1989).

          Because it is not clear from the record that the 2000

Guidelines Manual was correctly applied, we vacate the sentence and

remand this case for resentencing.      On remand, the district court

should calculate Fields’ guideline range using the 2006 Guidelines

Manual.   If the resulting guideline range is the same or more

favorable to Fields than the range the court arrived at using the

2000 Guidelines Manual, then the 2006 manual may be used without

violating the Ex Post Facto Clause, and should be used, pursuant to

§ 1B1.11, to sentence Fields.

          We dispense with oral argument because 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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