* After examining the briefs and appellate record, th is panel has determined

unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See F ED
. R. A PP
. P. 34(f); 10th Cir. R. 34.1(A)(2). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, or collateral estoppel. The court generally disfav ors 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 21 2002 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. RONALD MILLER, Defendant-Appellant. No. 01-2368 (D.C. No. CR-01-394) (New Mexico)



### ORDER AND JUDGMENT *

Before SEYMOUR , BALDOCK , and HARTZ , Circuit Judges.

Ronald Miller brings this case on direct, expeditedappeal seeking reversal of the sentence imposed by the district court and r emand for a new sentence. For the reasons set forth below, we reverse and remand for re-sentencing in1 Because we reverse and remand on the basis of Mr. Miller’s ex post facto

claim, we need not and do not rule on his ineffecti ve assistance of counsel claim. -2- accordance with this opinion. In June, 2001, Ronald Miller pled guilty to two counts of mail fraud for crimes committed in August and October of 1999. Th e government, in preparing its presentence report, used the 2000 edition of th e United States Sentencing Guidelines. That edition included an amendment to section 2F1.1 governing crimes of fraud and deceit. The amendment, effecti ve November 1, 2000, added a specific offense characteristic mandating a two-lev el increase in the offense level for crimes that involve identity theft. U.S.S.G. § 2F1.1(b)(5)(C) (2000). Because Mr. Miller’s crimes involved identity theft, the pr esentence report recommended a two level increase in his offense level. The distr ict court adopted the findings and recommendations of the presentence report. Mr. Mil ler did not object to the presentence report or the guideline range at senten cing. The court imposed a sentence of fifteen months in prison. On appeal, Mr. Miller contends that the district co urt erred in applying a specific offense characteristic that did not take e ffect until after he committed the crime to which he pled guilty and for which he was sentenced. 1 This court reviews questions of law regarding an application o f the sentencing guidelines de novo and findings of fact under the clearly erroneo us standard. United States v.-3-

Wiseman , 172 F.3d 1196, 1217-18 (10th Cir. 1999). In a ca se such as this, where trial counsel did not object to the issue now being raised for the first time on appeal, we review for plain error. United States v. Gilkey , 118 F.3d 702, 704 (10th Cir. 1997). Plain error exists when there is (1) an error, (2) that is plain, and (3) that affects substantial rights. Jones v. United States , 527 U.S. 373, 389 (1999). When all three conditions are met, we may exercise our discretion only if the error “seriously affect[s] the fairness, integr ity or public reputation of judicial proceedings.” Id. (quotingUnited States v. Olano , 507 U.S. 725, 732 (1993)). In cases where a constitutional error is at issue, we apply the plain error rule less rigidly. United States v. Gerber , 24 F.3d 93, 95 (10th Cir. 1994). The sentencing court generally applies the sentenci ng guidelines that are in effect on the date of sentencing. Id. However, if retroactive application of an amended sentencing guideline is to a defendant’s di sadvantage, then such application violates the ex post facto clause. United States v. Orr , 68 F.3d 1247 (10th Cir. 1995); see also Miller v. Florida , 482 U.S. 423, 430 (1987). An ex post facto law is, inter alia , one that inflicts greater punishment for an offen se than the law existing when the offense was committe d. United States v. Patzer , 15 F.3d 934, 942-43 (10th Cir. 1993). In the present case, the amendment to the guideline s did not take effect until November 1, 2000, more than a year after Mr. Miller committed the offenses-4-

in question. The amendment had the effect of incre asing Mr. Miller’s total offense level from 11 to 13. When combined with hi s category I criminal history, application of the amendment increased the sentenci ng range from one of 8 to 14 months to one of 12 to 18 months. It also had the effect of shifting Mr. Miller’s guideline range from Zone C to Zone D, thus requiri ng him to serve his entire term in prison. U.S.S.G. § 5C1.1(f). A Zone C sentence may be satisfied by serving half of the imposed term in community confi nement or home detention. U.S.S.G. § 5C1.1(d)(2). The sentencing court appli ed the amendment to events occurring before its enactment, and such applicatio n “disadvantage[d] the offender affected by it.” Miller , 482 U.S. at 430. Such application constitutes a violation for the ex post facto clause. We hold that in so applying the amendment in Mr. Mi ller’s case, the sentencing court committed plain error. To apply the amendment in violation of the ex post facto clause is an error, the error is plain, and its application affects substantial rights. Jones , 527 U.S. at 389. To uphold an unconstitutional sentence would “seriously affect[] the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano , 507 U.S. 725, 732 (1993) (quoting United States v. Young, 470 U.S. 1, 15 (1985)). This is especially so wh en, as here, the government agrees with the defendant and requests we vacate the sentence and remand for re-sentencing.-5-

Accordingly, we REVERSE the district court and REMAND the case for re-sentencing in conformance with the Sentencing Gu idelines and consistent with this opinion. The mandate shall issue forthwith.
ENTERED FOR THE COURT
Stephanie K. Seymour Circuit Judge