## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1003

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Kenneth Dean Weaver, Jr., * [PUBLISHED] * Appellant. *

___________ Submitted: November 27, 1998 Filed: December 4, 1998

___________ Before WOLLMAN, BEAM, and HANSEN, Circuit Judges.

___________ PER CURIAM. Pursuant to a written plea agreement, Kenneth Dean Weaver, Jr., pleaded guilty to being a felon

in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 2 (Count 1) ; to breaking into a United States Post Office with intent to commit a larceny and other depredation, in violation of 18 U.S.C. §§ 2115 and 2 (Count 3); and to stea ling firearms from a licensed dealer, in violation of 18 U.S.C. §§ 922(u) an d 924(i)(1) (Information Count 1). The district court sentenced Weaver to concurren t prison terms of 120 months on Count 1, 60 months on Count 3, and 120 months o n Information Count 1, to be followed by 3 years & supervised release; and ordered-2-

Weaver to pay restitution of $6,227. This appeal followed, in which Weaver argues that the presentence report & s (PSR) recommendation of a base offense level of 2 6 instead of 22 due to a typographical mistake was plain error. We agree, and we vacate Weaver & s sentence and remand for resentencing.

The PSR recited that, as to the convictions for being a felon in possession and for burglarizing a licensed firearms business, U.S. Sentencing Guidelines Manua l § 2K2.1(a)(3) (1997) established a base offense level of 22, because the offense s involved a firearm described in 18 U.S.C. § 921(a)(30), and Weaver had at least one pri or felony conviction for a crime of violence. See U.S. Sentencing Guideline s Manual § 2K2.1(a)(3) (1997) (providing for base offense level of 22 if offense involved firearm described in 26 U.S.C. § 5845(a) o r 18 U.S.C. § 921(a)(30) and defendant has one prior felony conviction of either crime of violence or co ntrolled substance offense). The probat ion officer noted elsewhere in the PSR--in two paragraphs discussing th e impactof t he plea agreement--that the probation office had “scored” Weaver with a base offense level of 22. Inexplicably, however, the probation officer placed “26” in the numerical column corresponding to Weaver’s base offense level. A base offense level of 26, however, applies to defendants who possess the requisite type of firearm
an d have “at least two prior felony convictions of either a crime of violence or a cont rolledsubstance offense.” U.S. Sentencing Guidelines Manual § 2K2.1(a)(1 ) (1997) (emphasis added). Starting with a ba se offense level of 22, and factoring in the PS R & s recommended offense-level enhancements and reductions, Weaver & s tota l offense level should have been only 25; instead, because of the error, it was 26. Based on a total offense level of 26 and a Catego ry VI criminal history, the PSR recommendeda Guidelines imprisonment range of 120-150 months. Neither party objected to the PSR, although Weaver contended that his medical condition provided grounds for departure under U.S. Sentencing Guidelines Manual § 5H1.4 (1997). The court denied Weaver & s departure motion and sentenced him at the bottom of th e sentencing range to 120 months & imprisonment.-3-

Because Weaver did not object to the error in t he PSR, we review only for plain
error. SeeFed. R. Crim. P. 52(b); United States v. Herron , 97 F.3d 234, 238 (8th Cir. 19 96), cert. denied , 117 S. Ct. 998 (1997). Under plain error review, we mus t determine whether th e district court committed an error that is plain, and whether that error affected the defendant & s substantial rights. See Unit ed States v. Gibson , 123 F.3d 1121, 1123 (8th Cir. 1997). If the error was plain and substantial rights were affected, we will exercise our discretion to reverse only where “the error # seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. & ” United States v

. Olano , 507 U.S. 725, 736 (1993) (quoting United States v. Atkinson , 297 U.S. 157 , 160 (1 936)). Moreover, Weaver bears the burden of showing the error affected hi s substantial rights. See United States v. Aikens , 132 F.3d 452, 454-55 (8th Cir.), cert. denied , 119 S. Ct. 114 (1998).

The parties agree that an error occurred in this case and that it was plain. The g o vernment argues, however, that the error did not affect Weaver & s substantial rights because the 120-month sentence he received fell within the Guidelines range of 110- 137 months which would have applied absent the error in the PSR. The government draws our attention to decisions that have found no plain error where the defendant & s sentence f

ell within what would have been the correct Guidelines range absent th e error. See, e.g. , United States v. Arigbodi , 924 F.2d 462 (2d C ir. 1991). Nevertheless,
we believ e the present case is distinguishable given the district court & s statements a t Weaver & s sentencing hearing, the court & s reasons stated in the written judgment fo r imp osing the 120-month sentence, and the nature of the error. Specifically, the court stated at the hearing that it was sentencing Weaver at the bottom of the sentencin g range with “some res ervation” because of the court & s concern over Weaver & s criminal history, but that t

he court had been influenced by Weaver & s cooperation for which the governmenthad not filed a departure motion, and that the court also had considere d Weaver & s health. The written judgment reiterated t hat the court had sentenced Weaver
as itdid because of his health and the lack of a substantial-assistance motion, an d added another sentencing consideration: Weaver & s relatively young age. All of theWeav er also argues that the district court erred in not granting a downwar d 1 dep arture based on his poor health. Because the record shows that the district cour t exercised its discretion in refusing to dep art, Weaver & s challenge is unreviewable. See United States v. Fischl , 16 F.3d 927, 929 (8th Cir. 1994). -4- reasons stated by the district court for imposing Weaver & s sentence at the bottom of the sentencing range are present whether Weaver & s sentencing range is 120-150 months or 110-137 months. Accordingly, we are unwilling to say that Weaver & s substantial rights were not affected by the error, because our review of the record as a whole persuades us that the court might well have sentenced Weaver to a lesser term of imprisonment und er the range that would have applied but for the typographical error. See Unite d States v. Wallace , 32 F.3d 1171, 1174- 75 (7th Cir. 1994) (defendant was sentenced at botto m of incorrect sentencing range to 168 months; absent error, correct range wa s 151-188 mo nths and plain error existed because district court chose lowest possibl e sentence in erroneous range and appellate court had “no reason to believe that [district court] would not ha

ve selected an even lower sentence” in correct sentencing range if given opportunity to do so). Thus, we believe that this is an appropriate case in which to exercise our discret

ion to reverse, for we believe that the public & s confidence in the judicial process would be u ndermined if an inadvertent typographical error were to be allowed to influence the length of a criminal defendant & s sentence. 1

The sen tence is vacated, and the case is remanded to the district court fo r sentencing under the correct Guidelines range of 110-137 months. A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.