                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-2007

USA v. Wood
Precedential or Non-Precedential: Precedential

Docket No. 06-1372




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                                             PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                              No. 06-1372


                           UNITED STATES

                                 v.

                           SHAHEED WOOD,

                                                   Appellant


         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                  (D.C. Criminal No. 04-00431)
            Honorable J. Curtis Joyner, District Judge


                      Argued March 16, 2007

BEFORE: FUENTES, GREENBERG and LOURIE*, Circuit Judges

                     (Filed: May 17, 2007)


Mark S. Greenberg (argued)
LaCheen Dixon Wittels & Greenberg LLP
1429 Walnut Street, Suite 1301
Philadelphia, PA 19102

   Attorney for Appellant

Patrick L. Meehan
United States Attorney
Jose R. Arteaga (argued)


*Honorable Alan D. Lourie, United States Circuit Judge for the
Federal Circuit, sitting by designation.
Assistant U.S. Attorney
Robert A. Zauzmer
Assistant U.S. Attorney
Chief of Appeals
United States Attorney’s Office
615 Chestnut Street
Philadelphia, PA 19106

   Attorneys for Appellee



                     OPINION OF THE COURT


GREENBERG, Circuit Judge.

                        I. INTRODUCTION

         A jury convicted Shaheed Wood of conspiracy to interfere
with interstate commerce by robbery, in violation of 18 U.S.C. §
1951(a), interference with interstate commerce by robbery, in
violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2, and using and
carrying a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c). Based on these convictions, the
district court sentenced Wood to a total custodial term of 240 months
to be followed by five years of supervised release. The court entered
a judgment reflecting this disposition on January 27, 2006. Wood
appeals, asserting that the district court erred in denying his motion
for a mistrial given what he contends were the prosecutor’s improper
statements in his closing argument to the jury. Wood further asserts
that the district court erred in imposing a 6-level sentencing
enhancement for his assault on a police officer pursuant to U.S.S.G. §
3A1.2(c). For the reasons we set forth below, we will affirm Wood’s
conviction but will vacate his sentence, and will remand the case to
the district court for resentencing.



            II. FACTS AND PROCEDURAL HISTORY

        After a jury has returned a guilty verdict we are bound to
interpret the evidence in the light most favorable to the government.


                                   2
United States v. Pungitore, 910 F.2d 1084, 1097 (3d Cir. 1990). With
that premise in mind, we offer the following background facts which
we note that, except for the identification of Wood as a fleeing robber,
seem not to be in dispute.

        On January 10, 2004, employees of the Pep Boys Automotive
Store located at 4101 Market Street in West Philadelphia were
preparing to close for the evening when several men wearing dark
clothes, black gloves, and masks entered the premises and, at
gunpoint, ordered the employees to get down on the floor. At the
same time, unbeknownst to the robbers, Philadelphia police officers
Martin Demota and Marquerite Wilcox, dressed in full uniform, were
entering the parking lot adjacent to the Pep Boys service area in a
marked police vehicle. As Demota exited his vehicle, he noticed a
masked man in the store’s service bay area and realized a robbery was
taking place. Demota then heard someone from inside the store yell,
“one time,” a street slang term used to signal police presence.

        As the robbers began to flee in various directions, Demota
heard gunshots. He turned west at the corner onto Market Street,
from which vantage point he observed a foot coming out of the front
window of the store. Ultimately, Demota saw two men emerge from
the store’s front door, one thin and the other more heavyset.1
Although Demota, who was yelling “stop, police,” was unable to see
either man’s face, he observed the thinner individual take something
from the heavyset one, at which point there was gunfire from one of
the men. Demota, uninjured, returned gunfire and watched as the
thinner man escaped, running west on Market Street and north on
42nd Street. The heavyset man was not as lucky. After falling to the
ground, he got up and headed in the same direction as the thinner
man. During the pursuit Demota lost sight of the heavyset man for
approximately five seconds when, turning the corner of 42nd Street,
he noticed an individual – later identified as Wood – approximately
eight to ten feet in front of him. Wood fit the description of the
heavyset man. Demota arrested Wood who falsely told him that he
worked at Pep Boys.

       On March 9, 2005, a grand jury in the Eastern District of
Pennsylvania returned a three-count superseding indictment against


       1
         It is undisputed that Demota was approximately 35 to 40 feet
away from the suspects at this point and, because it was nighttime,
streetlights aided him in his identification and pursuit efforts.

                                   3
Wood2 charging him with the offenses we listed above. The trial
began on July 5, 2005. At the trial, the defense, in an effort to
undermine Demota’s identification of Wood as the heavyset man,
focused on the circumstances surrounding the commission of the
crime and Demota’s identification of the fleeing robber. In particular,
the defense cited the darkness; the distances from which Demota
made his observations; Demota’s inability to observe the faces of the
suspects who fled from the store; Demota’s “excited state-of-mind”
after the fleeing men shot at him; and the time during which Demota
lost sight of the suspects while pursuing them.

        Not surprisingly, the prosecutor countered by citing evidence
that tended to bolster Demota’s identification. Among other things,
the prosecutor pointed out that a surveillance video had captured the
image of two armed men wearing masks and black clothing and
Demota had testified that a large black jacket he recovered from
Wood was similar to the one that one of the robbers in the videotape
wore. Moreover, Demota identified Wood as the heavyset man from
the videotape. There was additional support for the prosecutor’s case,
though perhaps not directly pointing to Wood, as items found at the
crime scene and in the surrounding area included cartridge casings,
two firearms, several live rounds of ammunition, black ski masks, a
black knitted cap, black knitted gloves, loose coins, and a roll of duct
tape.

        There was also highly incriminating evidence pointing directly
at Wood inasmuch as the police had found a gold 1997 Oldsmobile
parked on a street adjacent to, but pointing away from, the Pep Boys
that belonged to Wood’s girlfriend Stacy Dawkins and for which
Wood had the only set of keys. As it happens, Dawkins lent Wood
her car the day of the robbery. Later that evening, officers recovered
the following items from the car: a pink cleaning receipt with Wood’s
name on it; a holster; a black knitted skullcap; a black knitted hat; and
the keys, which had been left in the ignition.

        The parties, in their closing arguments, continued to address
the identification issue. Again drawing attention to what he regarded
as inconsistencies in Demota’s testimony, Wood’s attorney argued,
among other things, that:

       [M]embers of the jury, just as Police Officer Demota


       2
           The grand jury originally indicted Wood on July 27, 2004.

                                    4
       was mistaken about where he is located when he fired
       those shots under the pandemonium, the anguish going
       on at that time, he very well could have been mistaken
       as to what Mr. Wood might have said.

                                ....

       I say to you, members of the jury, that no one saw
       Shaheed Wood drive that car to that location, that no
       one saw Mr. Wood get out of that car. We know that
       the car was held for fingerprints but that there were no
       fingerprints in that car that connected Mr. Wood at that
       date to that car. . . . [T]hat’s why this corroborative
       evidence is important. And, that’s why it is the lack of
       the evidence in this case that creates the reasonable
       doubt. I mean the Agent got up here and had the
       gumption to tell you that we didn’t have to examine
       evidence because we had a case against this man. We
       didn’t have to look – examine the evidence because we
       will wait for the guys to get caught before we examine
       the evidence. Well, that belies common sense. You
       know, members of the jury, how many people on death
       row have been let off with the discovery of DNA
       evidence that says that they are innocent? Surely, the
       cops in that case thought they had the right guy.

                                 ....

       This case, members of the jury boils down to the fact
       that the physical evidence that’s taken from Mr. Wood
       is not consistent with his involvement in this robbery.

       The distances from, testified to by Officer Demota are
       not consistent with what he said, that the attempt to put
       square pegs in a round hole by trying to pigeonhole this
       jacket to this photograph and the fact of the lack of the
       evidence that shows that the items that were to check[,]
       not to hold, but check for hairs and fibers and tests for
       DNA were not done and linked to him. That’s what
       creates a reasonable doubt.

App. at 45, 50-52. Wood’s attorney’s reference to an agent testifying
referred to an agent of the Federal Bureau of Investigation.


                                  5
        In response, the prosecutor began his closing argument with
the following remarks:

       Was Officer Demota accurate about what Shaheed
       Wood said or mistaken about what you heard on the
       radio in the excitement[?] You heard the officer’s
       screams. He was extremely agitated and excited and
       mistakes happen. Of course, they can happen[.]

       You know why because that’s how human nature is. I
       can’t explain it but that’s what it is. We all make
       mistakes.

       Government agents make mistakes, police officers
       make mistakes, citizens make mistakes, judges make
       mistakes, that’s why we have courts of appeals.

Id. at 53. Defense counsel objected to these remarks and moved for a
mistrial, arguing the government’s “particular juxtaposition of
mistakes and courts of appeals may somehow lead this jury to believe
that if they make a mistake in wrongly convicting Mr. Wood, that,
somehow, the Court of Appeals can correct that mistake,” thus
“minimiz[ing] in the jury’s mind the gravity of the responsibility to
get it right.” Id. at 60-61. The prosecutor answered defense counsel’s
contention by arguing that he was “merely emphasizing that making
mistakes is part of human nature, and it is not limited to what an
individual does in his line of work . . . . It is something that is
common among human beings. That’s something that, in my view,
all of these jurors know. These jurors know that there are courts of
appeals.” Id. at 61. The district court denied the motion for a
mistrial, pointing out that its “instructions to the jury will more than
adequately direct them to their purpose in their deliberations and not
that they’re to make mistakes for somebody else to clean up, but that
they’re to consider the evidence and make a decision based on that
evidence.”3 Id. at 62.

       Following the jury verdict, the district court sentenced Wood
to concurrent 120-month custodial terms on Counts I and II of the
superseding indictment. The district court further sentenced Wood to


       3
         The prosecutor, rather than the defense attorney, suggested to the
court that it could cure any improprieties in his closing argument with a
cautionary instruction.

                                    6
a 120-month custodial term on Count III of the superseding
indictment, but this sentence was to run consecutively to that imposed
on Counts I and II. Wood’s total incarceration reflected, in part, a 6-
level upward adjustment under U.S.S.G. § 3A1.2(c) (2004) on the
grounds that Wood’s actions and/or those of his accomplices created a
substantial risk of serious bodily injury to Demota. Wood now
appeals, challenging both his conviction and his sentence.



                         III. JURISDICTION

       The district court exercised jurisdiction pursuant to 18 U.S.C.
§ 3231. We have appellate jurisdiction pursuant to 28 U.S.C. §§
1291, 3742(a).



                          IV. DISCUSSION

       A.      The Prosecutor’s Closing Statements to the Jury

        Wood argues first that the district court erred in denying his
motion for a mistrial given statements made by the prosecutor during
closing arguments. Specifically, Wood stresses that “[a] remark by
the prosecutor in the course of his closing argument to the jury to the
effect that if the jurors make a mistake in the verdict, some other
tribunal will correct it, is improper as tending to influence them to
shift the burden of their responsibility from themselves to an appellate
court.” Appellant’s br. at 12 (internal citation omitted).

        We review a district court’s decision to deny a motion for
mistrial predicated on the grounds that the prosecutor made improper
remarks in a closing argument for abuse of discretion. United States
v. Gambino, 926 F.2d 1355, 1365 (3d Cir. 1991). “To find that the
court abused its discretion in failing to order a mistrial for
prosecutorial misconduct, we must first be convinced that the
prosecution did in fact misconduct itself.” United States v. Rivas, 479
F.3d 259, 266 (3d Cir. 2007). Though, as we shall explain, the point
is debatable, we are treating the prosecutor’s comment as
inappropriate and thus as misconduct.

       Initially, we recognize that comments tending to lead a jury to


                                   7
believe that the responsibility for determining the appropriateness of a
defendant’s sentence lies with an authority other than the jury are
inappropriate. See Caldwell v. Mississippi, 472 U.S. 320, 328-29,
105 S. Ct. 2633, 2639 (1985); Riley v. Tayor, 277 F.3d 261, 298 (3d
Cir. 2001) (en banc). Even though arguments regarding the shifting
of responsibility for the outcome in a criminal case appear to arise
most often on appeals of sentences in capital cases, “state-induced
suggestions that the sentencing jury may shift its sense of
responsibility to an appellate court” similarly have no place in cases
where a defendant may be sentenced to a punishment other than death.
See Caldwell, 472 U.S. at 330, 105 S. Ct. at 2640. The reason for this
rule is clear inasmuch as the jury should not regard itself as “advisory
when it is not, or . . . be comforted by a belief that its decision will not
have effect unless others make the same decision,” because that
approach would be “a frustration of the essence of the jury function.”
Riley, 277 F.3d at 297 (quoting Sawyer v. Butler, 881 F.2d 1273,
1282 (5th Cir. 1989) (internal quotation marks omitted)).

         It is also important to consider that inasmuch as it may be
difficult to glean from an appellate record those intangibles that a jury
considers with respect to its determinations, it is essential that the
“presumption of correctness” we attach to a verdict not be destroyed
by comments from the prosecutor misstating the jury’s role in the
judicial process. See Caldwell, 472 U.S. at 330-31, 105 S. Ct. at
2640-41. Here, arguably the prosecutor’s remarks that “[g]overnment
agents make mistakes, police officers make mistakes, citizens make
mistakes, judges make mistakes, that’s why we have courts of
appeals,” app. at 53, were improper to the extent that they might have
suggested to the jury that a court of appeals would correct any error on
its part. Clearly, the principle that the prosecution should not attempt
to defeat the jury’s sense of responsibility, though usually set forth
when juries make sentencing determinations, is applicable with
respect to a jury’s determination of whether or not the defendant is
guilty.

        Yet, that being said, it is by no means clear that the
prosecutor’s comment tended to deflect a sense of responsibility for
its verdict from the jury. In this regard, we point out that the
prosecutor’s comment with respect to courts of appeals immediately
followed his comment that judges make mistakes. This sequence
makes it logical to believe that the jury would have understood the
prosecutor’s comment as relating to the functions of the trial judge
and not the jury, an approach bolstered by the fact that the prosecutor


                                     8
did not mention that juries make mistakes. Furthermore, the possible
sting of this comment was reduced by the circumstance that the
prosecutor’s reference to “citizens [making] mistakes” following
“[g]overnment agents” and “police officers” making mistakes, if
related to the functioning of courts of appeals beyond reviewing
actions of district judges, seems to refer to the actions of other persons
as witnesses and not jurors. In this regard we point out that the
prosecutor called an FBI agent, police officers, and civilians as
witnesses. Thus, what the prosecutor said here was very different
than the prosecutors’ overreaching remarks in two cases on which
Wood relies, Johnson v. Maryland, 601 A.2d 1093 (Md. 1992), and
People v. Rutledge, 179 A.D.2d 404, 578 N.Y.S.2d 162 (N.Y. App.
Div. 1992). Nevertheless, it would have been better if the prosecutor
here had not made his borderline comment regarding courts of appeals
and we will treat the remarks as being inappropriate.

        Treating the prosecutor’s remarks as inappropriate, the
government invokes the “invited response” doctrine. But we find that
the government’s reliance on the invited response doctrine is not
justified. The invited response doctrine protects comments made in
“reasonable response to improper attacks by defense counsel.” United
States v. Walker, 155 F.3d 180, 186 n.5 (3d Cir. 1998) (internal
quotations and citation omitted); see also United States v. Dispoz-O-
Plastics, Inc., 172 F.3d 275, 284 (3d Cir. 1999). The premise
underlying the doctrine’s rationale is that “the unfair prejudice
flowing from the two arguments may balance each other out, thus
obviating the need for a new trial.” Walker, 155 F.3d at 186 n.5
(internal quotations and citation omitted); see also Dispoz-O-Plastics,
Inc., 172 F.3d at 284.

        But though a prosecutor may use the doctrine defensively, he
may not do so offensively. Dispoz-O-Plastics, Inc., 172 F.3d at 284-
85 (noting the doctrine may not be used as a “springboard” to
“launch[] affirmative attacks upon defendants”) (internal quotation
and citation omitted); United States v. Pelullo, 964 F.2d 193, 218 (3d
Cir. 1992). Notably, “[w]e have generally found the invited response
doctrine to be applicable only in instances where the prosecution team
was attacked for reasons unsupported by the evidence at trial.”
Dispoz-O-Plastics, Inc., 172 F.3d at 285. For example, we have
upheld use of the doctrine where the defense has asserted that the
prosecutor suborned perjury, Gambino, 926 F.2d at 1364-66, and
where the defense has made personal attacks on the integrity of
prosecutors and law enforcement officers, Pungitore, 910 F.2d at


                                    9
1126-27.

        Here, the government protests that defense counsel “invited
the jury to consider the results in unrelated cases in which defendants
were exonerated after trial due to later review of DNA findings” and
“clearly intended for the jury to decide to acquit based on
uncertain[ty] caused by the results in different cases.” Appellee’s br.
at 21. But the government’s interpretation of defense counsel’s
remarks is unduly broad. Read in context, defense counsel merely
was emphasizing the importance of gathering corroborative evidence
at the outset of an investigation for purposes of determining whether a
particular suspect is in fact responsible for a particular crime for, as
we set forth above, he said:

       I say to you, members of the jury, that no one saw
       Shaheed Wood drive that car to that location, that no
       one saw Mr. Wood get out of that car. We know that
       the car was held for fingerprints but that there were no
       fingerprints in that car that connected Mr. Wood at that
       date to that car. . . . [T]hat’s why this corroborative
       evidence is important. And, that’s why it is the lack of
       the evidence in this case that creates the reasonable
       doubt. I mean the Agent got up here and had the
       gumption to tell you that we didn’t have to examine
       evidence because we had a case against this man. We
       didn’t have to look – examine the evidence because we
       will wait for the guys to get caught before we examine
       the evidence. Well, that belies common sense. You
       know, members of the jury, how many people on death
       row have been let off with the discovery of DNA
       evidence that says that they are innocent? Surely, the
       cops in that case thought they had the right guy.

App. at 50-51.

        More pertinently for present purposes, there is no way in
which we can view the defense attorney’s comments as constituting
an attack on the prosecutor’s case predicated on arguments that are
unsupported by the evidence at trial as, in fact, has happened in other
cases. See Dispoz-O-Plastics, Inc., 172 F.3d at 284-86; Gambino, 926
F.2d at 1364-66; Pungitore, 910 F.2d at 1126-27. Accordingly, we
find that treating the prosecutor’s remarks as inappropriate, the invited
response doctrine is not applicable in this case.


                                   10
         But notwithstanding the inapplicability of the invited response
doctrine and treating the prosecutor’s remark as improper, we still will
not reverse for “[a] mistrial is not required where improper remarks
were harmless, considering their scope, their relation to the context of
the trial, the ameliorative effect of any curative instructions and the
strength of the evidence supporting the conviction.” Rivas, 479 F.3d
at 267; see also United States v. Gambone, 314 F.3d 163, 179 (3d Cir.
2003); United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995).
Here, as the government points out, the challenged comment was only
a single sentence in the prosecutor’s entire closing argument, which
continued at some length after he made his comment. Though it is
true that the district court did not charge the jury with an expressly
curative instruction, it did state to the jury that opening and closing
statements made by counsel were not considered evidence, and that
the jury must base its verdict on only the evidence presented.4
Moreover, we have made an intensive review of the case and based on
that review we are satisfied that there is convincing evidence,
including, but not limited to Demota’s testimony, supporting Wood’s
convictions on the charges listed in the indictment. In short, we are
certain beyond any possible doubt that the prosecutor’s comment


       4
         Not only was the jury instructed not to treat counsel’s
summation as evidence, but it was specifically instructed to “carefully
and impartially consider all of the evidence in the case, follow the law,
as stated by the Court, and reach a true and just verdict.” App. at 65.
And, if the prosecution’s remarks left any doubt about the jury’s role, it
was neutralized by this instruction:

            As jurors, your role is to resolve and decide the factual
    issues in this case.

            You are the sole and exclusive judges of the facts [,]
    you decide upon the weight of the evidence. You determine the
    credibility of witnesses. You resolve such conflicts as there
    may be in the evidence, and you draw such reasonable
    inferences as may be warranted by the testimony or exhibits in
    the case.

Id. If defense counsel believed this instruction was insufficient to
prevent the jury from relying on the court of appeals, counsel had the
opportunity to offer an instruction of his own. The government
suggested that there could be a cautionary instruction but the defense did
not seek it.

                                   11
could not have affected the verdict and thus if there was an error in the
district court, whether by the prosecutor or the court, it was harmless.
There is simply no doubt that Wood is guilty. See Gambone, 314
F.3d at 177.

       We close our section on the review of the trial aspect of the
case with the following caution. In this case the prosecutor’s
comment did not lead to reversal. But we emphasize that reference in
an argument to the review function of the courts of appeals may be
dangerous territory into which a prosecutor should venture with care.

        B.        Upward Adjustment for “Official Victim” under the
                  Sentencing Guidelines

        Wood argues second that the district court violated the ex post
facto clause by applying a 6-level sentence enhancement pursuant to
U.S.S.G. § 3A1.2(c).5 Although Wood objected to the application of
section 3A1.2(c), he did so on grounds other than the ex post facto
clause and he does not raise those grounds on this appeal.
Accordingly, our review of this alleged error is for plain error only.6


        5
            Section 3A1.2(c) now provides in relevant part:

        If, in a manner creating a substantial risk of serious
        bodily injury, the defendant or a person for whose
        conduct the defendant is otherwise accountable–

        (1)       knowing or having reasonable cause to believe
                  that a person was a law enforcement officer,
                  assaulted such officer during the course of the
                  offense or immediate flight therefrom . . .

                  increase by 6 levels.
        6
          Under the plain error standard, a reviewing court may reverse an
order or judgment of the district court “only if [it] find[s] that (1) an
error was committed; (2) the error was plain, that is, it is ‘clear’ and
‘obvious;’ and (3) the error ‘affected [the defendant’s] substantial
rights.’” United States v. Nappi, 243 F.3d 758, 762 (3d Cir. 2001)
(quoting United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770,
1777-78 (1993)). “If a forfeited error is plain and affect[s] substantial
rights, a Court of Appeals has the authority to order correction, but is not
required to do so.” United States v. Stevens, 223 F.3d 239, 242 (3d Cir.

                                     12
See Fed. R. Crim. P. 52(b); United States v. Syme, 276 F.3d 131, 158
(3d Cir. 2002).

        The “official victim” enhancement relied on by the district
court during Wood’s January 5, 2006 sentencing was amended,
effective November 1, 2004. Wood, however, engaged in the conduct
charged in the indictment on January 10, 2004, approximately 10
months before the amendment became effective. Prior to the
amendment, Wood would have been subject to a 3 rather than 6 level
enhancement under the “official victim” guideline provision.7 See
U.S.S.G. § 3A1.2(b) (2002). We realize that, as a general rule,
“sentencing courts must apply the guidelines in effect at the time of
sentencing, not at the time of the crime.” United States v. Kopp, 951
F.2d 521, 526 (3d Cir. 1991), superseded in part on other grounds as
recognized by United States v. Corrado, 53 F.3d 620 (3d Cir. 1995).
But where, as here, “such retroactivity results in harsher penalties, Ex
Post Facto Clause problems arise, and courts must apply the earlier
version.” Id.; see also U.S.S.G. § 1B1.11(b) (“If the court determines
that use of the Guidelines Manual in effect on the date that the
defendant is sentenced would violate the ex post facto clause of the
United States Constitution, the court shall use the Guidelines Manual
in effect on the date that the offense of conviction was committed.”);
United States v. Menon, 24 F.3d 550, 566 (3d Cir. 1994) (“[C]hanges


2000) (internal quotations and citation omitted). Rather, the court
should exercise its discretion “only if the error seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” Id.
(internal quotations and citation omitted). Defendants bear the burden
of demonstrating that “plain error” occurred. Olano, 507 U.S. at 734,
113 S. Ct. at 1778.
       7
           Specifically, § 3A1.2(b) (2002) provided that:

       If, in a manner creating a substantial risk of serious
       bodily injury, the defendant or a person for whose
       conduct the defendant is otherwise accountable–

       (1)       knowing or having reasonable cause to believe
                 that a person was a law enforcement officer,
                 assaulted such officer during the course of the
                 offense or immediate flight therefrom . . .

                 increase by 3 levels.

                                    13
in sentencing guidelines that enhance the penalty offend the Ex Post
Facto Clause of Article I of the United States Constitution.”).

        In this case, the government concedes that all three prongs of
plain error review have been met, i.e., that the district court erred in
applying the 2004, rather than the 2002, “official victim”
enhancement, the error was clear and obvious, and Wood’s substantial
rights were affected. See United States v. Knight, 266 F.3d 203, 207
(3d Cir. 2001) (holding that under plain error review “an error in
application of the Guidelines that results in use of a higher sentencing
range should be presumed to affect the defendant’s substantial
rights”). Accordingly, we will vacate Wood’s sentence and remand
the case to the district court with instructions to rely on the 2002,
rather than the 2004, “official victim” enhancement for purposes of
sentencing. Resentencing should be in accordance with 18 U.S.C. §
3553(a). See United States v. Cooper, 437 F.3d 324, 329 (3d Cir.
2006); see also United States v. Colon, 474 F.3d 95, 100 (3d Cir.
2007).



                          V. CONCLUSION

        For the foregoing reasons, we will affirm Wood’s judgment of
conviction entered on January 27, 2006, but will vacate the sentence
and will remand the case to the district court for the limited purpose
of resentencing.




                                  14
