                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0656n.06
                             Filed: August 4, 2005

                                          Nos. 03-6481/6482

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                             )
                                                      )
        Plaintiff-Appellee,                           )
                                                      )
v.                                                    )    ON APPEAL FROM THE UNITED
                                                      )    STATES DISTRICT COURT FOR THE
PHILLIP LACEFIELD,                                    )    WESTERN DISTRICT OF TENNESSEE
                                                      )
        Defendant-Appellant.                          )




        Before: KEITH and DAUGHTREY, Circuit Judges, and WILLIAMS,* District Judge.


        MARTHA CRAIG DAUGHTREY, Circuit Judge. The defendant, Phillip Lacefield,

was charged in a 19-count indictment in February 2002 with money laundering, identity

theft, and making false statements to the IRS. Then in May 2002, the grand jury returned

a second indictment against Lacefield, charging him with mail fraud, wire fraud, making

false statements on a loan application, and two counts of making false statements to his

pretrial services officer. Lacefield went to trial on the allegations in the second indictment

and was found guilty on all five counts. He then pleaded guilty to Counts 1-4 and Count

10 of the first indictment. At sentencing, the district court combined the cases and

sentenced Lacefield to 108 months’ incarceration and three years’ supervised release.

        *
        The Hon. Glen M. Williams, United States District Judge for the Western District of Virginia, sitting
by designation.
Nos. 03-6481/6482
United States v. Lacefield

Lacefield now appeals his sentence on three grounds. First, he alleges that Counts 4 and

5 of the second indictment are multiplicitous, in violation of Fifth Amendment’s prohibition

against double jeopardy. Secondly, Lacefield asserts that the district court committed clear

error in imposing a four-point enhancement because the prosecution did not prove that the

crime involved 50 or more victims. Finally, he argues that the district court’s use of the

2002 version of the sentencing guidelines violated the Ex Post Facto Clause. We affirm

the convictions but conclude that the case must be remanded for re-sentencing.


                         FACTUAL AND PROCEDURAL HISTORY


       The facts in this case are largely undisputed. In May 2000, Lacefield appropriated

the identities of two individuals in order to embark on a complicated fraud scheme. Using

the stolen identities, Lacefield obtained permission to sell leases for credit-card-transaction

processing machines and printers for two companies, Leasecomm and CIT Group. Instead

of properly leasing the products, however, Lacefield advertised a bogus “business

opportunity” that purportedly allowed buyers to set up their own “internet malls,” collect

royalties from any sales they made, and sell the same package to other people for a

$500.00 commission in what amounted to a pyramid scheme. As part of the package, the

buyers were to receive a special internet phone, personal internet access, and the training

and support necessary to establish an “internet mall” business. Each person signing up for

the program executed a non-revokable lease agreement, and many of the victims signed

blank agreements, unaware that the would be required to pay more than $100 a month for


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United States v. Lacefield

four years. Each victim was told to provide Lacefield with a copy of his or her driver’s

license and a voided check in order to facilitate direct deposit of their commissions. As the

defendant stated in his brief on appeal, “After getting the person’s signature on the lease

contract, the defendant provided equipment and left the scene.” Not one victim was ever

able to properly access and establish an “internet mall,” nor did anyone receive the

promised training.


       In return for brokering these transactions, Lacefield received commissions, under

his adopted identities, from Leasecomm and CIT Group. Between the two companies,

Lacefield took in $446,236.00 in commissions and sold $876,576.00 worth of contracts.

At sentencing, the parties agreed that the Lacefield should be held responsible for a total

loss to his victims of $876,576.00. In all, 156 individuals were fraudulently induced to enter

into the contracts. Federal investigators attempted to contact each of the victims, but only

approximately 50 responded. Of these 50, all recounted similar descriptions of the fraud

that had been perpetrated on them by the defendant.


       Lacefield was initially indicted on 19 counts charging money laundering, pursuant

to 18 U.S.C. § 1957; identity theft, pursuant to 18 U.S.C. § 1028(a)(7); and making false

statements, pursuant to 18 U.S.C. § 1001. The indictment also contained a forfeiture

provision, pursuant to 18 U.S.C. § 982. Lacefield was arrested and taken into custody

immediately after the indictment was returned on February 27, 2002. On March 5, 2002,

the district court released Lacefield on bond and placed him on pretrial supervision. Under


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United States v. Lacefield

the conditions of his release, Lacefield was required to refrain from further employment

involving investments, to disclose all financial information including all bank statements and

records, and to refrain from obtaining any further lines of credit unless approved by the

pretrial services officer. Valerie Pugh, Lacefield’s pretrial services officer, went over the

conditions of release with Lacefield when she met with him on March 6. At that point,

Lacefield told Pugh he was unemployed and showed her three rejection letters. During a

previous interview, Lacefield had informed a different pretrial services officer that he had

bank accounts at only one bank, Bancorp South. Pugh requested that Lacefield provide

copies of all recent bank statements at his next report date. Although Lacefield knew the

conditions of his release, at no point before March 22, 2002, did he inform any pretrial

services officer that he had bank accounts at two separate banks, Bancorp South and First

Tennessee, or that he was employed. As it turned out, Lacefield applied for a $140,000

home equity loan from First Tennessee Bank on approximately March 8, 2002. In his

application, he stated that he was employed by Professional Business Services, Inc.,

earning $15,000 a month.


       On May 28, 2002, Lacefield was indicted again, this time on one count of mail fraud,

pursuant to 18 U.S.C. § 1341; one count of wire fraud, pursuant to 18 U.S.C. § 1343; one

count of making false statements on a loan application, pursuant to 18 U.S.C. § 1014; and

two counts of making false statements to a pretrial services officer, pursuant to 18 U.S.C.

§ 1001. Only the offenses charged in the last two counts are relevant to this appeal. They

alleged that Lacefield twice responded to his pretrial services officer that he was not

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United States v. Lacefield

employed and did not have any other bank accounts than those at Bancorp South. Those

counts therefore alleged identical behavior, but occurring on different dates.


       Lacefield pleaded not guilty to the charges in the second indictment, and the case

went to trial, resulting in a jury verdict of guilty on all five counts. That same day, Lacefield

pleaded guilty to Counts 1-4 and Count 10 of the first indictment. He also agreed to the

forfeiture in Count 18. In exchange, the prosecution dismissed the rest of the charges

against Lacefield from the first indictment.


       The charges from the two indictments were covered in the same pre-sentence

report, and the charges in each indictment were separately grouped for purposes of the

sentencing recommendation. The convictions from the first indictment yielded an adjusted

offense level of 31, while those from the second indictment yielded a level of only 20. Thus,

the pre-sentence report suggested that Lacefield be sentenced according to an adjusted

offense level of 31, which exposed him to 108 to 135 months of incarceration. Lacefield’s

sentence was calculated according to the 2002 version of the sentencing guidelines.


       At the sentencing hearing, the defense argued that the court should use the 2000

version of the guidelines instead of the 2002 version, but the district court declined to

agree, finding that, if the two indictments were to be sentenced together, § 1B1.11(b)(3) of

the guidelines required that the most recent version of the guidelines be applied. Defense

counsel also objected to the four-level enhancement given under U.S.S.G. 2B1.1(b)(2)(B)

for a crime with 50 or more victims. Both parties agreed on a lower loss calculation than

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United States v. Lacefield

that recommended by the pre-sentence report, so the total adjusted offense level came to

29. This offense level exposed Lacefield to a range of 87 to 108 months’ incarceration.

Noting that he “couldn’t sleep if [Lacefield] didn’t get the maximum penalty in this case,” the

district court sentenced the defendant to 108 months of incarceration, three years of

supervised release, and restitution.


       Lacefield now appeals his sentence on three grounds. The first of these grounds,

that Count 4 and 5 of the second indictment were multiplicitous in violation of the Fifth

Amendment prohibition against double jeopardy, was not raised at the trial court level. The

other two grounds for appeals were preserved by proper objections below.


                                         DISCUSSION


1. Multiplicity


       Lacefield contends that the two counts in the second indictment that charged him

with making material false statements to his pretrial services officer were multiplicitous and

that his conviction on both amounts to double punishment for the same conduct, in violation

of the constitutional protection against double jeopardy. Because Lacefield did not raise

this issue in the district court, we review it for plain error.


       Under plain error review, we may correct an error not raised below only if there is

“(1) 'error,' (2) that is 'plain,' and (3) that 'affects substantial rights.’” United States v.

Cromer, 389 F.3d 662, 672 (6th Cir. 2004) (quoting United States v. Olano, 507 U.S. 725,

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United States v. Lacefield

732 (1993)). “If all three conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error ’seriously affects the fairness,

integrity, or public reputation of judicial proceedings.’” Cromer, 389 F.3d at 672 (quoting

Olano, 507 U.S. at 732).


       We conclude that the defendant’s double jeopardy claim does not survive plain error

review. Counts 4 and 5 of the second indictment charged Lacefield with making the same

false statement to the same recipient, but on two separate dates. For this reason, they

meet “[t]he general test for compliance with the double jeopardy clause [which] looks to

whether each provision requires proof of a fact which the other does not.” United States

v. Davis, 306 F.3d 398, 417 (6th Cir. 2002) (quoting Blockburger v. United States, 284 U.S.

299, 304 (1932)). On the other hand, the defendant urges adoption of the Eighth Circuit’s

“unitary harm” rule, pursuant to which the “repetition of a false statement which does not

constitute an additional impairment of governmental functions should not be charged

separately in an indictment.” United States v. Graham, 60 F.3d 463, 467 (8th Cir. 1995)

(internal quotations omitted). Under this standard, sentencing based on convictions under

both Count 4 and Count 5 would constitute a double jeopardy violation.


       Unfortunately for the defendant, however, the Sixth Circuit has never adopted or

relied upon a “unitary harm” rule, and whatever the value of such a principle, we think it

cannot be applied in the context of plain error review. Given the lack of established




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United States v. Lacefield

precedent in this circuit, we could hardly say that any error in sentencing in this case was

“clear” or “obvious.”


       Furthermore, even if there were error in this regard, it neither affected Lacefield’s

“substantial rights” nor “seriously affect[ed] the fairness, integrity, or public reputation of

judicial proceedings.” Cromer, 389 F.3d at 672. Because the district court grouped the

charges in each indictment together for sentencing purposes, neither Count 4 nor Count

5 contributed to the ultimate offense level under the sentencing guidelines. Thus, for

practical purposes, Lacefield’s sentence was not affected by either conviction. The only

additional penalty Lacefield suffered as a result of Counts 4 and 5 was the special

assessment fee imposed by the court for each count of the indictment.1 Paying an extra

$100.00 in court assessment fees, though it may be inconvenient, does not rise to the level

of violating Lacefield’s “substantial rights,” especially when the $100.00 fee is compared

to the $314,825.83 restitution imposed in Lacefield’s case. Finally, even if it could be

argued that the $100.00 fee implicated Lacefield’s “substantial rights,” the imposition of the

fine does not “seriously affect[] the fairness, integrity, or public reputation of judicial




       1
         Notably, the imposition of the assessment fee is what allows Lacefield even to bring this
claim in the first place. Under the “concurrent sentencing doctrine,” “an appellate court may decline
to hear a substantive challenge to a conviction when the sentence on the challenged conviction is
being served concurrently with an equal or longer sentence on a valid conviction.” United States
v. Ware, 282 F.3d 902, 906 (6th Cir. 2002) (quoting Dale v. Hasberlin, 878 F.2d 930, 935 n.3 (6th
Cir. 1989)). Hence, we could have declined to review Lacefield’s multiplicity claim except for the
fact that “the concurrent sentencing doctrine is inapplicable where a defendant must pay an
assessment on each count of conviction.” Ware, 282 F.3d at 906.

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United States v. Lacefield

proceedings.” Cromer, 389 F.3d at 672. We therefore find no plain error in connection with

the defendant’s double jeopardy claim.


2. Sentencing Enhancement


       Lacefield next asserts that the district court erred in applying a four-level

enhancement, pursuant to U.S.S.G. § 2B1.1(b)(2)(A)(ii), for engaging in an offense

involving 50 or more victims. The defendant’s challenge in this regard was originally

directed toward the sufficiency of the evidence to support the district court’s finding that

there were, in fact, as many as 50 victims in this case; he did not object to the fact that the

determination was based on “judge-found” facts not charged in the indictment or found

specifically by the jury. Nevertheless, while this case was pending on appeal, the Supreme

Court issued its opinion in United States v. Booker, 543 U.S. ____, 125 S.Ct. 738, 756

(2005), holding that “[a]ny fact (other than a conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established by the plea of guilty

or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable

doubt.” The Court also expressly stated that its decision in Booker is applicable “to all

cases on direct review,” ibid., which includes Lacefield’s.


       Because the district court relied on facts not admitted by the defendant or found by

the jury, under Booker and the cases in this circuit that have followed Booker, we must

vacate the sentence in this case and remand it for re-sentencing. Moreover, when the case

reaches the district court, under Booker, the sentencing guidelines must now be considered

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United States v. Lacefield

discretionary rather than mandatory, as they were at the time of Lacefield’s sentencing.

See id. at 769.


3. Applicable Guidelines


       Lacefield’s third and final challenge on appeal involves the guidelines applicable to

his sentencing. The district court used the 2002 version of the guidelines exclusively, and

the defendant argues that this violated the Ex Post Facto Clause because the offenses

charged in the first indictment occurred in 2000, while the offenses charged in the second

indictment took place in 2002. As detailed above, the two indictments represented

separate offenses and followed two different paths through the criminal justice system.

Conviction on the second indictment came at the hands of a jury, while Lacefield pleaded

guilty to the charges in the first one.     Although the indictments were separate, a

consolidated sentencing report was prepared all the charges, and Lacefield was sentenced

on all convictions at the same time.


       At the sentencing hearing, the prosecution and the defense disagreed on which

version of the sentencing guidelines should be applied to which convictions. Lacefield’s

guideline range was considerably higher under the 2002 version than it would have been

under the 2000 version because the base offense level under the 2000 guidelines was

three points lower. See U.S. SENTENCING GUIDELINES MANUAL § 2F1.1 (2000), U.S.

SENTENCING GUIDELINES MANUAL § 2B1.1 (2002).            Additionally, the specific offense



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United States v. Lacefield

characteristics varied as between the two versions, further increasing the disparity in the

overall punishment that the defendant would receive under the different guidelines.


       Determining the appropriate version of the guidelines is a matter of law that we

review de novo. See United States v. Campbell, 309 F.3d 928, 930 (6th Cir. 2002).

Generally, the district court must apply the version of the guidelines in place at the time of

sentencing, but if the application of that version violates the Ex Post Facto Clause,

U.S.S.G. § 1B1.11(b)(1) requires that the district court “shall use the Guidelines Manual in

effect on the date that the offense of conviction was committed.” See United States v.

Davis, 397 F.3d 340, 346 (6th Cir. 2005). An ex post facto violation is implicated where the

new guidelines version “changes the legal consequences of acts completed before its

effective date.” Miller v. Florida, 482 U.S. 423, 430 (1987) (internal quotations omitted). In

short, this “court must not impose a sentence in excess of that allowed by the older

guidelines.” United States v. Milton, 27 F.3d 203, 210 (6th Cir. 1994).


       In seeming contradiction with its guidance on the Ex Post Facto Clause, the

Sentencing Guidelines Manual, in § 1B1.11(b)(3), requires that “[i]f the defendant is

convicted of two offenses, the first committed before and the second after a revised edition

of the Guidelines Manual became effective, the revised edition of the Guidelines Manual

is to be applied to both offenses.” In deciding to follow § 1B1.11(b)(3) and apply the 2002

version of the guidelines, the district court held that once two cases are considered




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United States v. Lacefield

together, “they become part of a collective endeavor.” Lacefield now argues that §

1B1.11(b)(3), at least as applied in this case, violates the Ex Post Facto Clause. We agree.


       Although we have repeatedly held that the district court must apply the earlier

version of the guidelines when the later version would result in harsher punishment, we

have never had the occasion to apply § 1B1.11(b)(3) to circumstances similar to those in

Lacefield’s case. In United States v. Cseplo, 42 F.3d 360, 362 (6th Cir. 1994), for example,

we reviewed the sentence imposed on a defendant who had engaged in relevant conduct

prior to the adoption of a new, harsher, version of the guidelines and held that even if some

of the conduct deemed relevant by the district court occurred prior to the issuance of the

new manual, the defendant was not entitled to be sentenced under the earlier version.

Notably, in Cseplo, the actual crimes for which the defendant were convicted did not occur

until after the change in the guidelines.


       Moreover, in this case – unlike those in which there is a single prosecution based

on a single indictment charging multiple offenses that occurred both before and after a

revision in the guidelines – Lacefield’s convictions resulted from two separate indictments,

one charging pre-revision offenses and the other post-revision offenses. Moreover, the two

sets of charges were not consolidated but were processed at different times and in different

manners. They were joined only for purposes of the assembling pre-sentencing report and

were considered together at the sentencing hearing.




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United States v. Lacefield

       Hence, Lacefield’s situation appears to be unique, not only in terms of Sixth Circuit

case law but also in terms of reported cases from other circuits. Like ours, most of our

sister circuits’ decisions touching on the constitutionality of § 1B1.11(b)(3) deal with

situations in which the offenses were charged in one indictment, prosecuted together, and

grouped for sentencing. Indeed, it is the grouping of the convictions that appears to be

most significant factor. As the Tenth Circuit recently explained, “[T]he central concern of

the ex post facto clause is fair notice to a defendant that the punishment for a crime has

been increased from what it was when the crime was committed. . . . [T]he grouping rules,

enacted in 1987, provide warning to criminals that completing another criminal offense

similar to one committed previously places them in peril of sentencing under a revised

version of the Guidelines.” Sullivan, 255 F.3d 1256,1262-63 (10th Cir. 2001) (internal

quotations omitted).


       By contrast, the offenses for which Lacefield was convicted were not indicted or

prosecuted together, and the convictions from the two separate indictments were not

grouped at sentencing. Indeed, the record suggests that not all of the offenses were similar

enough to be formally grouped. The question, of course, is whether they were sufficiently

similar for grouping purposes to provide Lacefield with adequate notice that the offenses

committed in 2000 could be punished under a later set of guidelines. We think that the

question must be answered in the negative and, therefore, that it was error to apply the

2002 guidelines to offenses otherwise covered by the 2000 Guidelines Manual. Because

the sentence Lacefield received must be vacated in any event, and the case remanded for

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United States v. Lacefield

re-sentencing, this error can be corrected by the district court at the new sentencing

hearing.


                                   CONCLUSION


       For the reasons set out above, we AFFIRM the district court’s judgment of

conviction, VACATE the defendant’s sentence, and REMAND for re-sentencing in

conformity with this opinion.




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