                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAY 13 2004
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                     No. 02-3354
           v.                                              (D. Kansas)
 RICKY GEORGE FOUNTAINE,                          (D.C. No. 02-CR-40026-JAR)

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before KELLY , ANDERSON , and HENRY , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 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       This order and judgment is not binding precedent, except under the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, 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.
      Ricky George Fountaine appeals the sentence imposed following his

conviction for being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g). We vacate Fountaine’s sentence and remand for resentencing.

      Fountaine pled guilty to being a felon in possession of a firearm. The

possession occurred on January 8, 2002. When his presentence report was

prepared, the probation officer calculated his total offense level at 21 and his

criminal history category at VI, resulting in a guideline range of seventy-seven to

ninety-six months. The court sentenced him to seventy-seven months’

imprisonment.

      Fountaine disputes the criminal history calculation, arguing that it

incorrectly included all three sentences imposed by Kansas courts in the 1980s,

outside of the fifteen-year period provided in United States Sentencing

Commission, Guidelines Manual (“USSG”) §4A1.2(e)(1) (2001).        1
                                                                       The




      1
       Section 4A1.2(e)(1) provides that, for the purpose of calculating criminal
history, the following prior sentences are counted:

      (1) Any prior sentence of imprisonment exceeding one year and one
      month that was imposed within fifteen years of the defendant’s
      commencement of the instant offense is counted. Also count any
      prior sentence of imprisonment exceeding one year and one month,
      whenever imposed, that resulted in the defendant being incarcerated
      during any part of such fifteen-year period.

USSG §4A1.2(e)(1).

                                          -2-
government agrees and asks that this case be remanded for resentencing with the

criminal history calculation revised as asserted by Fountaine. Accordingly, the

case is REMANDED for resentencing.



                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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