                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          SEP 3 2004
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                     No. 04-4126
                                                 (D.C. No. 2:01-CR-12-DB)
 MARTIN REYNOSO-RAMIREZ,                                 (D. Utah)

          Defendant - Appellant.




                             ORDER AND JUDGMENT *


Before EBEL, HARTZ, and McCONNELL, Circuit Judges.




      In this direct criminal appeal, the Defendant-Appellant asserts that the

district court committed plain error in enhancing his base offense level by 16

points pursuant to § 2L1.2(b)(1)(A) of the 2000 edition of the Sentencing

Guidelines. The Defendant argues that because his sentence was imposed on

November 7, 2001, the 2001 edition of the Sentencing Guidelines should have

been used. Under the 2001 edition of the Sentencing Guidelines, the Defendant’s

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
criminal history would not have qualified for a 16 level enhancement under

§ 2L1.2(b)(1)(A). The Defendant has asked that this appeal be expedited because

he has already served the maximum time contemplated by the Guideline range that

would have been applicable under his appropriate criminal history category had

the district court properly used the 2001 edition of the Sentencing Guidelines.

      The United States responded by agreeing with the Defendant, both as to the

assertion that the 2001 edition of the Sentencing Guidelines should have been

utilized and as to the Defendant’s assertion that under the 2001 edition of the

Sentencing Guidelines his criminal history would not have qualified him for a 16

level enhancement under § 2L1.2(b)(1)(A).

      We agree, based upon the record before us, and conclude that the district

court plainly erred in enhancing Defendant’s sentence under the 2000 edition of

the Sentencing Guidelines.

      Accordingly, we REVERSE and REMAND this case to the district court for

resentencing of the Defendant pursuant to the 2001 edition of the Sentencing

Guidelines.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge



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