                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT



                                  No. 00-60606

                                Summary Calendar


UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                                      versus

CLIFTON ANDERSON, JR.
                                                  Defendant-Appellant.



             Appeal from the United States District Court
               For the Northern District of Mississippi
                           (2:96-CR-85-1-S)

                             September 24, 2001


Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

      Clifton Anderson appeals the sentence imposed by the district

court following his guilty plea conviction of extortion under color

of official right in violation of 18 U.S.C. § 1951 and conducting

and   attempting    to    conduct     a   financial    transaction    affecting

interstate     commerce     involving       property    represented    by    law

enforcement    officers    to    be   proceeds   of    unlawful   activity   in

violation of 18 U.S.C. § 1956.            Because we find that the district


      *
       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should not be published and is not precedent except under the limited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.
court committed plain error in refusing to group the offenses we

vacate Anderson’s sentence and remand for resentencing.   We reject

Anderson’s other arguments, however.



                                  I



     Clifton Anderson, an officer with the Mississippi Highway

Patrol,   arranged with Wyatt Williams, a local drug dealer, to set

up a sham “arrest” of a drug courier traveling by automobile.

Anderson would stop the vehicle and seize the drugs, then later

Anderson would return the drugs to Williams, who would, true to

form, deal the drugs.      Williams was to give a portion of the

proceeds to Anderson.    The only flaw in this ingenious scheme was

that Williams was acting as a confidential informant for law

enforcement officials.

     Williams told Anderson that a drug courier, accompanied by

Williams, would travel from Memphis, Tennessee to Greenville,

Mississippi with one kilogram of cocaine.      Williams provided a

description of their car and the timing of their trip.     The two

agreed that Anderson’s share of the proceeds would be $12,000.   The

stop occurred on the evening of July 26, 1996.        Williams was

accompanied by an officer of the Mississippi Bureau of Narcotics

posing as the drug courier.

     Anderson stopped the vehicle and asked the “courier” if he had

any drugs.   The “courier” responded that he did, and Anderson took

                                  2
the “cocaine,” which was in fact a dummy package containing only

sugar.     Anderson was armed with his state issued firearm during

this entire exchange.       After taking the package, Anderson ordered

Williams out of the car and when Williams acted as if to flee the

scene, Anderson drew his firearm and threatened to shoot Williams.

Anderson eventually allowed Williams and the “courier” to leave

without arresting them.

     On July 27, 1996, Anderson gave the package back to Williams,

who was to sell the cocaine and remit half of the proceeds to

Anderson.      Williams gave Anderson $500 as partial payment at this

time.     Anderson received further wired payments from Williams of

$500 and $2,500 on August 8 and August 21, 1996, respectively.

These payments were represented by Williams as proceeds of the sale

of the “cocaine.”



                                       II



     We review a district court’s interpretation and application of

the sentencing guidelines de novo.1         We review findings of fact for

clear error.2

     Anderson first contends that the district court erred in

applying a two-level sentencing enhancement for possession of a



     1
         United States v. Henderson, 254 F.3d 543, 543 (5th Cir. 2001).
     2
         Id.

                                       3
dangerous weapon, in this case his service firearm.3                 A two-level

sentence enhancement may be applied if the district court finds by

a preponderance of the evidence that the defendant possessed a

dangerous     weapon   during    the   commission    of   a   drug     offense.4

Anderson argues that since he was required to carry a firearm by

virtue of his employment as a Mississippi Highway Patrol officer

his sentence cannot be enhanced solely because of his possession of

the firearm.

     While we have previously found that possession of a dangerous

weapon cannot be inferred solely from the fact that the defendant

is a law enforcement officer,5 we also have held that possession of

a firearm by a law enforcement officer in the commission of an

offense, if established by a preponderance of the evidence, allows

for a two-level enhancement.6          Anderson had his firearm with him

when he made the traffic stop, when he forced the courier to hand

over the “cocaine” and when he threatened Williams. While Anderson

argues that the extortion had been completed by the time he used

the firearm to threaten Williams, use is not required for the

enhancement, merely possession.         The fact that carrying a firearm

was required by Anderson’s employment does not mean it did not aid



     3
         See U.S.S.G. § 2D1.1(b)(1).

     4
         United States v. Siebe, 58 F.3d 161, 162 (5th Cir. 1995).
     5
         Id. at 162.
     6
         United States v. Marmolejo, 106 F.3d 1213, 1215 (5th Cir. 1997).

                                       4
him in his extortion efforts.         Anderson utilized his position as a

law enforcement officer to extort the cocaine and “any incidence of

that position which further facilitated the [crime] should properly

be taken into account at sentencing.”7             Anderson has not borne his

burden of proving that it is “clearly improbable” that his firearm

was connected to the offense.8



                                       III



      Next      Anderson    argues   that    the   district   court   erred   in

determining the offense level based upon one kilogram of cocaine

because the package Anderson actually seized contained only sugar.

When extortion is committed for the purpose of aiding in the

commission of another offense, the guidelines direct the court to

apply the greater of the offense level for extortion and the

offense level applicable to a conspiracy to commit that second

offense.9       In this case the court applied the offense level for a

conspiracy to distribute one kilogram of cocaine.10

      These facts are squarely controlled by Application Note 12 to

U.S.S.G. § 2D1.1, which states:


      7
           Id. at 1217.
      8
        U.S.S.G. § 2D1.1(b)(1) App. n. 3 (“The adjustment should be applied
unless it is clearly improbable that the weapon was connected with the offense.”)
      9
           U.S.S.G. § 2C1.1(c)(1).
      10
           U.S.S.G. § 2D1.1.

                                        5
      “In an offense involving an agreement to sell a controlled
      substance, the agreed-upon quantity of the controlled
      substance shall be used to determine the offense level unless
      the sale is completed and the amount delivered more accurately
      reflects the scale of the offense....      In contrast, in a
      reverse sting, the agreed-upon quantity of the controlled
      substance would more accurately reflect the scale of the
      offense because the amount actually delivered is controlled by
      the government, not the defendant.”11

This case involves a reverse-sting.             Anderson believed that he was

threatening a “drug courier” in order to obtain one kilogram of

cocaine.    The fact that this was extortion rather than a direct

purchase    by    Anderson    is     irrelevant—it     adds    only   a   layer   of

complexity that § 2C1.1(c)(1) addresses.

      Anderson also argues that this presents a scenario factually

analogous    to    those     cases    dealing   with    drug    mixtures.12       We

disagree—a reverse-sting is an altogether different beast.



                                         IV



      Finally, both Anderson and the Government agree that the

district court erred in refusing to group the two offenses for




      11
         See also United States v. Perez De Dios, 237 F.3d 1192, 1195 (10th Cir.
2001) (holding that agreed-upon quantity should be used to determine base offense
level in reverse-sting operation where defendant received only a “dummy” package
containing a small amount of drugs).
      12
         See, e.g., United States v. Levay, 76 F.3d 671, 673 (5th Cir. 1996)
(holding that where mixture must be separated before controlled substance can be
used that only actual weight of controlled substance in mixture should be used
for calculating a sentence).

                                         6
sentencing purposes.13         Specifically, Anderson notes first that he

was sentenced pursuant to the drug offense guidelines because his

extortion was for the purpose of facilitating distribution of

cocaine. Then, in sentencing for money laundering, the court added

a three-level enhancement for Anderson’s knowledge that the funds

were proceeds from illegal drug activity.                  We agree with Anderson

and the Government in concluding that these two offenses should

have    been     grouped    pursuant      to    U.S.S.G.    §   3D1.2(c)   and   the

precedents of this Court.14               While Anderson did not make this

argument before the district court, and therefore our review is for

plain error,15 we find that error here is clear, and affects the

defendant’s substantial rights, because it resulted in an increased

sentence.16

       We will not correct plain error unless it seriously affects

“the        fairness,    integrity   or        public   reputation   of    judicial

proceedings.”17         “Generally, when a trial court incorrectly applies



       13
        U.S.S.G. § 3D1.2. Failure to group the two counts in this case resulted
in a total offense level of 28 instead of 27. Anderson was sentenced to 96
months based upon a total offense level of 28—grouping the counts would have
provided for a maximum sentence of 87 months.
       14
         United States v. Rice, 185 F.3d 326, 328-29 (5th Cir. 1999) (holding
that money laundering offense and drug offense should have been grouped because
three level enhancement for illegal drug proceeds was applied to money laundering
offense).

       15
            United States v. Salter, 241 F.3d 392, 394 (5th Cir. 2001).

       16
            United States v. Alderholt, 87 F.3d 740, 744 (5th Cir. 1996).
      17
         United States v. Olano, 507 U.S. 725, 736-37 (1993).        See also United
States v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001).

                                           7
the United States Sentencing Guidelines, as it did here, the

fairness, integrity, or public reputation of judicial proceedings

is seriously affected.”18       We find here that the failure to group

Anderson’s offenses for sentencing purposes requires that he be

resentenced.



                                      V



      For the aforementioned reasons we VACATE Anderson’s sentence

and REMAND to the district court for resentencing.




      18
         United States v. Alarcon, No. 00-50071, 2001 WL 871776 at *5 (5th Cir.
Aug. 1, 2001).

                                      8
