                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            July 21, 2005
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

 v.                                                        No. 04-6141
                                                     (D.C. No. CR-03-0187-T)
 DOUGLAS LEE McDONALD,                                     (W.D. Okla.)

           Defendant-Appellant.


                                 ORDER AND JUDGMENT        *




Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.


          This case is before us on direct criminal appeal of a sentence imposed after

defendant Douglas Lee McDonald’s plea of guilty to bank fraud.        McDonald

argues both that his sentence was incorrectly calculated and that it violated United

States v. Booker, 125 S. Ct. 738 (2005); he contends, and the government

concedes, that the amount of intended loss was incorrectly calculated because

$2300 was double-counted, resulting in an increase to the adjusted offense level



      The case is unanimously ordered submitted without oral argument pursuant
      *

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and 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.
of two levels and a sentence that was sixteen months higher than that authorized

absent the error. McDonald also contends that judicial factfinding on the amount

of intended loss as “relevant conduct” under the Guidelines violated Booker.

Exercising jurisdiction under 28 U.S.C. § 1291, we REVERSE and REMAND

for resentencing.

      McDonald pled guilty to a one-count indictment for bank fraud which

alleged that McDonald deposited a $5000 check drawn on a non-existing account,

and subsequently withdrew $2300 from that account. The court also considered

as relevant conduct McDonald’s having convinced his mother and stepfather to

write fraudulent checks and loan his bail agent $250,000. As part of its “relevant

conduct” calculation, the Pre-Sentence Report (“PSR”) added both the $5000

deposit and the subsequent $2300 withdrawal from that $5000 deposit to the

$394,730.60 calculated as “relevant conduct” under U.S.S.G. § 2B1.1(b)(1)(H),

which increased the total amount of intended loss to over $400,000. Because the

double-counting of the $2300 resulted in an increase of the total intended loss to

over $400,000, the applicable total adjusted offense level increased by two levels

resulting in an applicable Guideline range of 70-87 months, as opposed to a range

of 57-71 months without the error. The district court sentenced McDonald to 87

months’ imprisonment, a sentence sixteen months higher than that authorized by

the correct Guideline range.


                                        -2-
      McDonald contends that both the erroneous double-counting, and judicial

factfinding on the amount of intended loss under § 2B1.1(b)(1)H) which he

argues is prohibited under Booker, are plain error requiring remand for

resentencing. The government concedes that the double-counting error requires

remand, but argues that because this error requires remand for resentencing we

need not address the Booker error alleged by McDonald.

      McDonald failed to raise below the issue of the district court’s double-

counting of the $2300 under § 2B1.1(b)(1)(H). Thus, our review is limited to

plain error. Fed. R. Crim. P. 52(b). Plain error is (1) error, (2) that is plain, (3)

that affects substantial rights of a defendant, and (4) that seriously affects the

fairness, integrity, or public perception of judicial proceedings. Johnson v.

United States, 520 U.S. 461, 467 (1997). We have long held that “basing a

sentence on the wrong Guideline range constitutes a fundamental error affecting

substantial rights within the meaning of Rule 52(b),” United States v. Smith, 919

F.2d 123, 124 (10th Cir. 1990), “if there is more than a reasonable probability that

such misapplication led to a higher sentence.” United States v. Taylor, ___ F.3d

___, 2005 WL 1519115 *5 (10th Cir. Jun. 28, 2005). In this case, the double-

counting increased the adjusted offense level by two levels and resulted in the

district court’s adjudging a sentence that was 16 months higher than that

authorized by the correct Guideline range. Accordingly, there is more than a


                                           -3-
reasonable probability that the district court’s error led to a higher sentence, and

we REVERSE and REMAND for resentencing. 1


                                                ENTERED FOR THE COURT


                                                Carlos F. Lucero
                                                Circuit Judge




   1
     Because we conclude that the court committed plain error in basing its
sentence on the incorrect Guideline range, and remand for resentencing, we do not
address McDonald’s Booker argument as his resentencing will occur in the new
discretionary sentencing regime applicable post-Booker.

                                          -4-
