          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                     FILED
                                                                  October 11, 2007
                                 No. 06-10203
                               Summary Calendar                 Charles R. Fulbruge III
                                                                        Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

VITO ANTHONY RIZZO

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:05-CR-165-1


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
      Vito Anthony Rizzo appeals his sentence of 52 months of imprisonment
after pleading guilty to conspiracy to possess stolen mail matter. Rizzo’s plea
agreement contains a waiver of his right to appeal his conviction and sentence
with an exception for a claim of ineffective assistance of counsel. Rizzo argues
that his trial counsel was ineffective for failing to raise certain objections to the
application of the Sentencing Guidelines, thus falling within the exception to the
plea waiver.

      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                  No. 06-10203

      Rizzo argues that trial counsel was ineffective for not objecting to a
two-level increase in his offense level under U.S.S.G. § 2B1.1(b)(12)(A) for
recklessly creating a substantial risk of death or serious bodily injury to another
person in the course of fleeing from law enforcement officers. Rizzo argues that
this two-level increase constitutes double counting of the two-level increase he
also received for obstruction of justice under § 3C1.2. He also argues that the
two-level increase is a misapplication of the Guidelines because § 2B1.1(b)(12)(A)
applies only when it is the fraudulent offense itself that carries the risk of death
or serious bodily injury. Rizzo contends that the increase was applied based on
his attempt to elude apprehension and did not relate to his theft of mail offense.
Rizzo argues that trial counsel’s failure to make these objections fell below
objective standards of practice and that prejudice resulted.
      Rizzo’s argument that counsel was ineffective for failing to object to the
application of both § 3C1.2 and § 2B1.1(b)(12)(A) has no merit because the
enhancements were based on two separate instances of flight, one on July 25,
and one on August 10. See United States v. Gillyard, 261 F.3d 506, 509-12 (5th
Cir. 2001) (holding that there was no double counting in applying § 3C1.2 and
§ 3A1.2(b) because they were based on separate acts).
      The Government concedes that § 2B1.1(b)(12)(A) applies only when the
risk of bodily injury results from the fraudulent offense conduct itself and not
from events that happen while fleeing from the crime. The Government agrees
that the risk of harm did not result from the offense but from Rizzo’s escape from
officers and that Rizzo should not have received the enhancement. Because we
are remanding for re-sentencing on other grounds, we do not reach the
Government’s argument that Rizzo’s claim of ineffective assistance must fail
because he cannot show prejudice.
      Rizzo argues that trial counsel’s representation was deficient for failing to
object to the addition of two criminal history points to his criminal history score
for his 2004 deferred adjudication probation for misdemeanor assault under

                                         2
                                 No. 06-10203

§ 4A1.1(b). He argues that the probated sentence should have counted for one
point under § 4A1.1(c).     He contends that trial counsel’s failure to object
prejudiced him because one less point in his criminal history score would have
reduced his category from IV to III.
      The Government concedes that Rizzo’s criminal history category was
incorrectly calculated. We hereby vacate Rizzo’s sentence and remand so that
Rizzo can be resentenced.
      SENTENCE       VACATED       AND     CASE    REMANDED        FOR    RE-
SENTENCING.




                                       3
