                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           MAR 21 2002

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 01-2368
 v.                                                (D.C. No. CR-01-394)
                                                      (New Mexico)
 RONALD MILLER,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, BALDOCK, and HARTZ, Circuit Judges.



      Ronald Miller brings this case on direct, expedited appeal seeking reversal

of the sentence imposed by the district court and remand for a new sentence. For

the reasons set forth below, we reverse and remand for re-sentencing in


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See F ED . R. A PP . P. 34(f); 10th Cir. R. 34.1(A)(2). The case is
therefore ordered submitted without oral argument.      This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
or collateral estoppel. The 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.
accordance with this opinion.

      In June, 2001, Ronald Miller pled guilty to two counts of mail fraud for

crimes committed in August and October of 1999. The government, in preparing

its presentence report, used the 2000 edition of the United States Sentencing

Guidelines. That edition included an amendment to section 2F1.1 governing

crimes of fraud and deceit. The amendment, effective November 1, 2000, added a

specific offense characteristic mandating a two-level increase in the offense level

for crimes that involve identity theft. U.S.S.G. § 2F1.1(b)(5)(C) (2000). Because

Mr. Miller’s crimes involved identity theft, the presentence report recommended a

two level increase in his offense level. The district court adopted the findings and

recommendations of the presentence report. Mr. Miller did not object to the

presentence report or the guideline range at sentencing. The court imposed a

sentence of fifteen months in prison.

      On appeal, Mr. Miller contends that the district court erred in applying a

specific offense characteristic that did not take effect until after he committed the

crime to which he pled guilty and for which he was sentenced. 1 This court

reviews questions of law regarding an application of the sentencing guidelines de

novo and findings of fact under the clearly erroneous standard. United States v.



      1
        Because we reverse and remand on the basis of Mr. Miller’s ex post facto
claim, we need not and do not rule on his ineffective assistance of counsel claim.

                                          -2-
Wiseman, 172 F.3d 1196, 1217-18 (10th Cir. 1999). In a case such as this, where

trial counsel did not object to the issue now being raised for the first time on

appeal, we review for plain error. United States v. Gilkey, 118 F.3d 702, 704

(10th Cir. 1997). Plain error exists when there is (1) an error, (2) that is plain,

and (3) that affects substantial rights. Jones v. United States, 527 U.S. 373, 389

(1999). When all three conditions are met, we may exercise our discretion only if

the error “seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” Id. (quoting United States v. Olano, 507 U.S. 725, 732 (1993)). In

cases where a constitutional error is at issue, we apply the plain error rule less

rigidly. United States v. Gerber, 24 F.3d 93, 95 (10th Cir. 1994).

      The sentencing court generally applies the sentencing guidelines that are in

effect on the date of sentencing. Id. However, if retroactive application of an

amended sentencing guideline is to a defendant’s disadvantage, then such

application violates the ex post facto clause. United States v. Orr, 68 F.3d 1247

(10th Cir. 1995); see also Miller v. Florida, 482 U.S. 423, 430 (1987). An ex

post facto law is, inter alia, one that inflicts greater punishment for an offense

than the law existing when the offense was committed. United States v. Patzer,

15 F.3d 934, 942-43 (10th Cir. 1993).

      In the present case, the amendment to the guidelines did not take effect

until November 1, 2000, more than a year after Mr. Miller committed the offenses


                                           -3-
in question. The amendment had the effect of increasing Mr. Miller’s total

offense level from 11 to 13. When combined with his category I criminal history,

application of the amendment increased the sentencing range from one of 8 to 14

months to one of 12 to 18 months. It also had the effect of shifting Mr. Miller’s

guideline range from Zone C to Zone D, thus requiring him to serve his entire

term in prison. U.S.S.G. § 5C1.1(f). A Zone C sentence may be satisfied by

serving half of the imposed term in community confinement or home detention.

U.S.S.G. § 5C1.1(d)(2). The sentencing court applied the amendment to events

occurring before its enactment, and such application “disadvantage[d] the

offender affected by it.” Miller, 482 U.S. at 430. Such application constitutes a

violation for the ex post facto clause.

      We hold that in so applying the amendment in Mr. Miller’s case, the

sentencing court committed plain error. To apply the amendment in violation of

the ex post facto clause is an error, the error is plain, and its application affects

substantial rights. Jones, 527 U.S. at 389. To uphold an unconstitutional

sentence would “seriously affect[] the fairness, integrity or public reputation of

judicial proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993) (quoting

United States v. Young, 470 U.S. 1, 15 (1985)). This is especially so when, as

here, the government agrees with the defendant and requests we vacate the

sentence and remand for re-sentencing.


                                           -4-
      Accordingly, we REVERSE the district court and REMAND the case for

re-sentencing in conformance with the Sentencing Guidelines and consistent with

this opinion. The mandate shall issue forthwith.

                                     ENTERED FOR THE COURT


                                     Stephanie K. Seymour
                                     Circuit Judge




                                       -5-
