     Case: 09-10641     Document: 00511127770          Page: 1    Date Filed: 06/01/2010




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

                                                  FILED
                                                                            June 1, 2010
                                     No. 09-10641
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

AMY CATHERINE TAYLOR,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:08-CR-186-2


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Amy Catherine Taylor appeals the 24-month sentence imposed following
her guilty plea conviction for attempting to pass a counterfeited obligation of the
United States. Taylor argues that the district court wrongly concluded that she
was not entitled to a reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1. She asserts that she fully disclosed all relevant information and that
she was not required to volunteer or admit affirmatively relevant conduct
beyond the offense of conviction. She contends that her case is extraordinary,

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                No. 09-10641

and she therefore should have been granted a reduction for acceptance of
responsibility even though she also received an enhancement for obstruction of
justice.
      A defendant’s offense level may be reduced by as many as three levels if
the defendant “clearly demonstrates acceptance of responsibility for his offense.”
§ 3E1.1.   Conduct resulting in an enhancement for obstruction of justice
“ordinarily indicates that the defendant has not accepted responsibility for his
criminal conduct.” § 3E1.1, comment. (n.4). However, a defendant can receive
adjustments under both §§ 3C1.1 and 3E1.1 in an “extraordinary” case. Id. We
review a determination of acceptance of responsibility with even greater
deference than under a clearly erroneous standard; the district court’s ruling on
acceptance of responsibility “should not be disturbed unless it is without
foundation.” United States v. Washington, 340 F.3d 222, 227 (5th Cir. 2003)
(internal citations and quotations omitted).
      The record supports that Taylor was not fully forthcoming concerning her
knowledge of relevant conduct. The record specifically shows that Taylor falsely
denied knowing that counterfeit bills were being manufactured in her home,
disingenuously suggested that the counterfeit bills used in her offense originated
from a source other than her home, and refused to elaborate on circumstances
surrounding her offense. See § 3E1.1, comment. (nn.1 & 3); United States v.
Nevarez-Arreola, 885 F.2d 243, 246 (5th Cir. 1989) (noting that defendant’s
failure to elaborate on the circumstances surrounding offense may be considered
in evaluating defendant’s sincerity in claiming acceptance of responsibility).
United States v. Pierce, 237 F.3d 693, 695 (5th Cir. 2001) (holding that district
court properly denied acceptance of responsibility where defendant falsely
denied relevant conduct). The record also indicates that Taylor refused to accept
personal responsibility for the circumstances leading to her conviction, and
instead attempted to impede her prosecution by attacking Government officials
and accusing them of behaving maliciously. Taylor furthermore has not set forth

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any grounds upon which we can conclude that her case is “extraordinary” and
that she should be granted a reduction for acceptance of responsibility despite
receiving an upward adjustment for obstruction of justice for her obstreperous
conduct. See § 3E1.1, comment. (n.4). Accordingly, the district court properly
determined that Taylor was not entitled to a reduction for acceptance of
responsibility.
      Taylor also argues that the district court plainly erred by using U.S.S.G.
§ 2B5.1 to determine her base offense level. She asserts that § 2B5.1 applies
only where counterfeited objects have been falsely made in their entirety, and
that her offense involved genuine notes that were altered. She therefore asserts
that her base offense level should have been determined under U.S.S.G. § 2B1.1.
The Government concedes that the district court should have utilized § 2B1.1,
rather than under § 2B5.1, and that the district court’s error affected Taylor’s
substantial rights. However, the Government argues that this court should
decline to exercise its discretion to correct the error because it did not seriously
affect the fairness, integrity or public reputation of judicial proceedings.
      Because this issue is raised for the first time on appeal, review is for plain
error. See United States v. Alvarado-Santilano, 434 F.3d 794, 795 (5th Cir.
2005). To show plain error, Taylor must show a forfeited error that is clear or
obvious and that affects her substantial rights. Puckett v. United States,129
S. Ct. 1423, 1429 (2009). If Taylor makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      The record indicates that the counterfeit bills in this case were false high-
denomination notes that began as genuine small-denomination notes, and which
were modified through bleaching and reprinting. Thus, because the bills were
altered notes rather than notes that were made in their entirety, the district
court should have applied § 2B1.1, rather than § 2B5.1. See United States v.
Dison, 330 F. App’x 56, 59-63 (5th Cir. 2009); United States v. Owen, 347

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F. App’x 69, 72-73 (5th Cir. 2009). The district court’s application of the wrong
guideline was error that was clear or obvious in light of Dison and Owen. See
Dison, 330 F. App’x at 59-63; Owen, 347 F. App’x at 72-73. Although those cases
was decided after Taylor was sentenced, the error need only be plain at the time
of appellate consideration. See United States v. Green, 293 F.3d 886, 890 (5th
Cir. 2002).
      Moreover, because the district court’s error caused the imposition of a
sentence that was substantially higher than the correct advisory guidelines
range, Taylor has shown a reasonable probability that, but for the district court’s
misapplication of the Guidelines, she would have received a lesser sentence. See
United States v. Jasso, 587 F.3d 706, 713 (5th Cir. 2009); United States v.
Villegas, 404 F.3d 355, 365 (5th Cir. 2005). Contrary to the Government’s
argument, this error seriously affects the fairness, integrity, or public reputation
of judicial proceedings. See United States v. John, 597 F.3d 263, 285-89 (5th Cir.
2010); Villegas, 404 F.3d at 364-65.         Accordingly, we vacate sentence and
remand for resentencing.
      SENTENCE VACATED; CASE REMANDED.




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