              Case: 12-16116     Date Filed: 07/15/2013   Page: 1 of 3


                                                              [DO NOT PUBLISH]


                   IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT

                                  _____________

                                  No. 12-16116
                              Non-Argument Calendar
                                 _____________

                   D. C. Docket No. 1:11-cr-00028-WLS-TQL-7

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                       versus

CASEY STAMPS,

                                                          Defendant-Appellant.

                                 ______________

                   Appeal from the United States District Court
                       for the Middle District of Georgia
                                ______________

                                   (July 15, 2013)

Before DUBINA, Chief Judge, HULL and JORDAN, Circuit Judges.

PER CURIAM:

      Appellant Casey Stamps (“Stamps”) appeals his 18-month prison sentence

for misprision of a felony, a violation of 18 U.S.C. § 4. Stamps argues the district
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court erred when it departed upward under U.S.S.G. § 5K2.21 based on

consideration of uncharged conduct that did not have any relation to the charged

offense. The Government concedes error by the district court. [Appellee Br. at 9.]

Accordingly, we vacate the sentence and remand.

                                              I.

      In the summer of 2010, law enforcement learned illegal drugs and

prescription medications were being distributed at the U.S. Marine Corps Logistics

Base in Albany, Georgia. Law enforcement officers obtained wiretaps and began

eavesdropping on the telephone conversations of suspected drug dealers. It was

through a wiretap that officers heard a conversation between Stamps, and Justin

Mathis (“Mathis”), a suspected drug dealer. Stamps, who apparently purchased

drugs from Mathis for personal use, was overheard warning Mathis about the

arrests of other drug dealers on the base and advising Mathis to be careful. Based

on this conversation, Stamps was indicted for misprision of a felony.

      Officers arrested Stamps at his home on September 28, 2011. At the time of

the arrest, officers found four .22 caliber rifles, one 20-gauge shotgun, and one

.243 caliber rifle in the home. As a convicted felon, Stamps was prohibited from

possessing firearms. However, the Government never charged Stamps with the




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offense of being a felon in possession of a firearm. Stamps later plead guilty to

misprision of a felony.

                                              II.

      Based on Stamps’ prior criminal history and offense level, his guideline

range was zero to six months of imprisonment.             However, at the sentencing

hearing, the district court departed upward and imposed a sentence of 18 months

imprisonment. The court, relying on U.S.S.G. § 5K2.21, primarily justified the

departure based on Stamps’ illegal possession of firearms. Stamps did not raise

any objection to the sentence at the time it was imposed; thus, we review for plain

error only. United States v. Maurice, 69 F.3d 1553, 1556 (11th Cir. 1995).

      On appeal, the Government concedes Stamps’ illegal possession of the

firearms was not an appropriate basis for the district court’s upward departure,

citing our precedent in United States v. Ellis, 419 F.3d 1189 (11th Cir. 2005) in

support.

                                              III.

      Accordingly, based on the government’s confession of error, we vacate

Stamp’s sentence and remand this case with direction to resentence without

consideration of Stamps’ illegal possession of the firearms.

      VACATED and REMANDED.

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