2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-17-2007

USA v. Wood

Precedential or Non-Precedential: Precedential

Docket No. 06-1372

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-1372

 

 

UNITED STATES

v.

SHAHEED WOOD,

Appellant

 

 On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 04-00431)

Honorable J. Curtis Joyner, District Judge

 

Argued March 16, 2007

BEFORE: FUENTES, GREENBERG and LOURIE*, Circuit Judges

(Filed: May 17, 2007)

 

Mark S. Greenberg (argued)

LaCheen Dixon Wittels & Greenberg LLP

1429 Walnut Street, Suite 1301

Philadelphia, PA 19102

 Attorney for Appellant

Patrick L. Meehan

United States Attorney

Jose R. Arteaga (argued)

 

*Honorable Alan D. Lourie, United States Circuit Judge for the

Federal Circuit, sitting by designation.
2

Assistant U.S. Attorney

Robert A. Zauzmer

Assistant U.S. Attorney

Chief of Appeals

United States Attorney’s Office

615 Chestnut Street

Philadelphia, PA 19106

 Attorneys for Appellee

 

OPINION OF THE COURT

 

GREENBERG, Circuit Judge.

I. INTRODUCTION

A jury convicted Shaheed Wood of conspiracy to interfere

with interstate commerce by robbery, in violation of 18 U.S.C. §

1951(a), interference with interstate commerce by robbery, in

violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2, and using and

carrying a firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. § 924(c). Based on these convictions, the

district court sentenced Wood to a total custodial term of 240 months

to be followed by five years of supervised release. The court entered

a judgment reflecting this disposition on January 27, 2006. Wood

appeals, asserting that the district court erred in denying his motion

for a mistrial given what he contends were the prosecutor’s improper

statements in his closing argument to the jury. Wood further asserts

that the district court erred in imposing a 6-level sentencing

enhancement for his assault on a police officer pursuant to U.S.S.G. §

3A1.2(c). For the reasons we set forth below, we will affirm Wood’s

conviction but will vacate his sentence, and will remand the case to

the district court for resentencing. 

II. FACTS AND PROCEDURAL HISTORY

After a jury has returned a guilty verdict we are bound to

interpret the evidence in the light most favorable to the government. 
It is undisputed that Demota was approximately 35 to 40 feet

1

away from the suspects at this point and, because it was nighttime,

streetlights aided him in his identification and pursuit efforts. 

3

United States v. Pungitore, 910 F.2d 1084, 1097 (3d Cir. 1990). With

that premise in mind, we offer the following background facts which

we note that, except for the identification of Wood as a fleeing robber,

seem not to be in dispute.

On January 10, 2004, employees of the Pep Boys Automotive

Store located at 4101 Market Street in West Philadelphia were

preparing to close for the evening when several men wearing dark

clothes, black gloves, and masks entered the premises and, at

gunpoint, ordered the employees to get down on the floor. At the

same time, unbeknownst to the robbers, Philadelphia police officers

Martin Demota and Marquerite Wilcox, dressed in full uniform, were

entering the parking lot adjacent to the Pep Boys service area in a

marked police vehicle. As Demota exited his vehicle, he noticed a

masked man in the store’s service bay area and realized a robbery was

taking place. Demota then heard someone from inside the store yell,

“one time,” a street slang term used to signal police presence.

As the robbers began to flee in various directions, Demota

heard gunshots. He turned west at the corner onto Market Street,

from which vantage point he observed a foot coming out of the front

window of the store. Ultimately, Demota saw two men emerge from

the store’s front door, one thin and the other more heavyset.1

Although Demota, who was yelling “stop, police,” was unable to see

either man’s face, he observed the thinner individual take something

from the heavyset one, at which point there was gunfire from one of

the men. Demota, uninjured, returned gunfire and watched as the

thinner man escaped, running west on Market Street and north on

42nd Street. The heavyset man was not as lucky. After falling to the

ground, he got up and headed in the same direction as the thinner

man. During the pursuit Demota lost sight of the heavyset man for

approximately five seconds when, turning the corner of 42nd Street,

he noticed an individual – later identified as Wood – approximately

eight to ten feet in front of him. Wood fit the description of the

heavyset man. Demota arrested Wood who falsely told him that he

worked at Pep Boys. 

On March 9, 2005, a grand jury in the Eastern District of

Pennsylvania returned a three-count superseding indictment against
The grand jury originally indicted Wood on July 27, 2004. 2

4

Wood charging him with the offenses we listed above. The trial 2

began on July 5, 2005. At the trial, the defense, in an effort to

undermine Demota’s identification of Wood as the heavyset man,

focused on the circumstances surrounding the commission of the

crime and Demota’s identification of the fleeing robber. In particular,

the defense cited the darkness; the distances from which Demota

made his observations; Demota’s inability to observe the faces of the

suspects who fled from the store; Demota’s “excited state-of-mind”

after the fleeing men shot at him; and the time during which Demota

lost sight of the suspects while pursuing them. 

Not surprisingly, the prosecutor countered by citing evidence

that tended to bolster Demota’s identification. Among other things,

the prosecutor pointed out that a surveillance video had captured the

image of two armed men wearing masks and black clothing and

Demota had testified that a large black jacket he recovered from

Wood was similar to the one that one of the robbers in the videotape

wore. Moreover, Demota identified Wood as the heavyset man from

the videotape. There was additional support for the prosecutor’s case,

though perhaps not directly pointing to Wood, as items found at the

crime scene and in the surrounding area included cartridge casings,

two firearms, several live rounds of ammunition, black ski masks, a

black knitted cap, black knitted gloves, loose coins, and a roll of duct

tape. 

There was also highly incriminating evidence pointing directly

at Wood inasmuch as the police had found a gold 1997 Oldsmobile

parked on a street adjacent to, but pointing away from, the Pep Boys

that belonged to Wood’s girlfriend Stacy Dawkins and for which

Wood had the only set of keys. As it happens, Dawkins lent Wood

her car the day of the robbery. Later that evening, officers recovered

the following items from the car: a pink cleaning receipt with Wood’s

name on it; a holster; a black knitted skullcap; a black knitted hat; and

the keys, which had been left in the ignition. 

The parties, in their closing arguments, continued to address

the identification issue. Again drawing attention to what he regarded

as inconsistencies in Demota’s testimony, Wood’s attorney argued,

among other things, that:

[M]embers of the jury, just as Police Officer Demota
5

was mistaken about where he is located when he fired

those shots under the pandemonium, the anguish going

on at that time, he very well could have been mistaken

as to what Mr. Wood might have said. 

. . . . 

I say to you, members of the jury, that no one saw

Shaheed Wood drive that car to that location, that no

one saw Mr. Wood get out of that car. We know that

the car was held for fingerprints but that there were no

fingerprints in that car that connected Mr. Wood at that

date to that car. . . . [T]hat’s why this corroborative

evidence is important. And, that’s why it is the lack of

the evidence in this case that creates the reasonable

doubt. I mean the Agent got up here and had the

gumption to tell you that we didn’t have to examine

evidence because we had a case against this man. We

didn’t have to look – examine the evidence because we

will wait for the guys to get caught before we examine

the evidence. Well, that belies common sense. You

know, members of the jury, how many people on death

row have been let off with the discovery of DNA

evidence that says that they are innocent? Surely, the

cops in that case thought they had the right guy.

. . . .

This case, members of the jury boils down to the fact

that the physical evidence that’s taken from Mr. Wood

is not consistent with his involvement in this robbery.

The distances from, testified to by Officer Demota are

not consistent with what he said, that the attempt to put

square pegs in a round hole by trying to pigeonhole this

jacket to this photograph and the fact of the lack of the

evidence that shows that the items that were to check[,]

not to hold, but check for hairs and fibers and tests for

DNA were not done and linked to him. That’s what

creates a reasonable doubt.

App. at 45, 50-52. Wood’s attorney’s reference to an agent testifying

referred to an agent of the Federal Bureau of Investigation.
The prosecutor, rather than the defense attorney, suggested to the 3

court that it could cure any improprieties in his closing argument with a

cautionary instruction. 

6

In response, the prosecutor began his closing argument with

the following remarks:

Was Officer Demota accurate about what Shaheed

Wood said or mistaken about what you heard on the

radio in the excitement[?] You heard the officer’s

screams. He was extremely agitated and excited and

mistakes happen. Of course, they can happen[.]

You know why because that’s how human nature is. I

can’t explain it but that’s what it is. We all make

mistakes. 

Government agents make mistakes, police officers

make mistakes, citizens make mistakes, judges make

mistakes, that’s why we have courts of appeals.

Id. at 53. Defense counsel objected to these remarks and moved for a

mistrial, arguing the government’s “particular juxtaposition of

mistakes and courts of appeals may somehow lead this jury to believe

that if they make a mistake in wrongly convicting Mr. Wood, that,

somehow, the Court of Appeals can correct that mistake,” thus

“minimiz[ing] in the jury’s mind the gravity of the responsibility to

get it right.” Id. at 60-61. The prosecutor answered defense counsel’s

contention by arguing that he was “merely emphasizing that making

mistakes is part of human nature, and it is not limited to what an

individual does in his line of work . . . . It is something that is

common among human beings. That’s something that, in my view,

all of these jurors know. These jurors know that there are courts of

appeals.” Id. at 61. The district court denied the motion for a

mistrial, pointing out that its “instructions to the jury will more than

adequately direct them to their purpose in their deliberations and not

that they’re to make mistakes for somebody else to clean up, but that

they’re to consider the evidence and make a decision based on that

evidence.” Id. at 62. 3

Following the jury verdict, the district court sentenced Wood

to concurrent 120-month custodial terms on Counts I and II of the

superseding indictment. The district court further sentenced Wood to
7

a 120-month custodial term on Count III of the superseding

indictment, but this sentence was to run consecutively to that imposed

on Counts I and II. Wood’s total incarceration reflected, in part, a 6-

level upward adjustment under U.S.S.G. § 3A1.2(c) (2004) on the

grounds that Wood’s actions and/or those of his accomplices created a

substantial risk of serious bodily injury to Demota. Wood now

appeals, challenging both his conviction and his sentence. 

III. JURISDICTION

The district court exercised jurisdiction pursuant to 18 U.S.C.

§ 3231. We have appellate jurisdiction pursuant to 28 U.S.C. §§

1291, 3742(a).

IV. DISCUSSION

A. The Prosecutor’s Closing Statements to the Jury

Wood argues first that the district court erred in denying his

motion for a mistrial given statements made by the prosecutor during

closing arguments. Specifically, Wood stresses that “[a] remark by

the prosecutor in the course of his closing argument to the jury to the

effect that if the jurors make a mistake in the verdict, some other

tribunal will correct it, is improper as tending to influence them to

shift the burden of their responsibility from themselves to an appellate

court.” Appellant’s br. at 12 (internal citation omitted).

We review a district court’s decision to deny a motion for

mistrial predicated on the grounds that the prosecutor made improper

remarks in a closing argument for abuse of discretion. United States

v. Gambino, 926 F.2d 1355, 1365 (3d Cir. 1991). “To find that the

court abused its discretion in failing to order a mistrial for

prosecutorial misconduct, we must first be convinced that the

prosecution did in fact misconduct itself.” United States v. Rivas, 479

F.3d 259, 266 (3d Cir. 2007). Though, as we shall explain, the point

is debatable, we are treating the prosecutor’s comment as

inappropriate and thus as misconduct.

Initially, we recognize that comments tending to lead a jury to
8

believe that the responsibility for determining the appropriateness of a

defendant’s sentence lies with an authority other than the jury are

inappropriate. See Caldwell v. Mississippi, 472 U.S. 320, 328-29,

105 S. Ct. 2633, 2639 (1985); Riley v. Tayor, 277 F.3d 261, 298 (3d

Cir. 2001) (en banc). Even though arguments regarding the shifting

of responsibility for the outcome in a criminal case appear to arise

most often on appeals of sentences in capital cases, “state-induced

suggestions that the sentencing jury may shift its sense of

responsibility to an appellate court” similarly have no place in cases

where a defendant may be sentenced to a punishment other than death. 

See Caldwell, 472 U.S. at 330, 105 S. Ct. at 2640. The reason for this

rule is clear inasmuch as the jury should not regard itself as “advisory

when it is not, or . . . be comforted by a belief that its decision will not

have effect unless others make the same decision,” because that

approach would be “a frustration of the essence of the jury function.” 

Riley, 277 F.3d at 297 (quoting Sawyer v. Butler, 881 F.2d 1273,

1282 (5th Cir. 1989) (internal quotation marks omitted)). 

It is also important to consider that inasmuch as it may be

difficult to glean from an appellate record those intangibles that a jury

considers with respect to its determinations, it is essential that the

“presumption of correctness” we attach to a verdict not be destroyed

by comments from the prosecutor misstating the jury’s role in the

judicial process. See Caldwell, 472 U.S. at 330-31, 105 S. Ct. at

2640-41. Here, arguably the prosecutor’s remarks that “[g]overnment

agents make mistakes, police officers make mistakes, citizens make

mistakes, judges make mistakes, that’s why we have courts of

appeals,” app. at 53, were improper to the extent that they might have

suggested to the jury that a court of appeals would correct any error on

its part. Clearly, the principle that the prosecution should not attempt

to defeat the jury’s sense of responsibility, though usually set forth

when juries make sentencing determinations, is applicable with

respect to a jury’s determination of whether or not the defendant is

guilty.

Yet, that being said, it is by no means clear that the

prosecutor’s comment tended to deflect a sense of responsibility for

its verdict from the jury. In this regard, we point out that the

prosecutor’s comment with respect to courts of appeals immediately

followed his comment that judges make mistakes. This sequence

makes it logical to believe that the jury would have understood the

prosecutor’s comment as relating to the functions of the trial judge

and not the jury, an approach bolstered by the fact that the prosecutor
9

did not mention that juries make mistakes. Furthermore, the possible

sting of this comment was reduced by the circumstance that the

prosecutor’s reference to “citizens [making] mistakes” following

“[g]overnment agents” and “police officers” making mistakes, if

related to the functioning of courts of appeals beyond reviewing

actions of district judges, seems to refer to the actions of other persons

as witnesses and not jurors. In this regard we point out that the

prosecutor called an FBI agent, police officers, and civilians as

witnesses. Thus, what the prosecutor said here was very different

than the prosecutors’ overreaching remarks in two cases on which

Wood relies, Johnson v. Maryland, 601 A.2d 1093 (Md. 1992), and

People v. Rutledge, 179 A.D.2d 404, 578 N.Y.S.2d 162 (N.Y. App.

Div. 1992). Nevertheless, it would have been better if the prosecutor

here had not made his borderline comment regarding courts of appeals

and we will treat the remarks as being inappropriate.

Treating the prosecutor’s remarks as inappropriate, the

government invokes the “invited response” doctrine. But we find that

the government’s reliance on the invited response doctrine is not

justified. The invited response doctrine protects comments made in

“reasonable response to improper attacks by defense counsel.” United

States v. Walker, 155 F.3d 180, 186 n.5 (3d Cir. 1998) (internal

quotations and citation omitted); see also United States v. Dispoz-OPlastics, Inc., 172 F.3d 275, 284 (3d Cir. 1999). The premise

underlying the doctrine’s rationale is that “the unfair prejudice

flowing from the two arguments may balance each other out, thus

obviating the need for a new trial.” Walker, 155 F.3d at 186 n.5

(internal quotations and citation omitted); see also Dispoz-O-Plastics,

Inc., 172 F.3d at 284. 

But though a prosecutor may use the doctrine defensively, he

may not do so offensively. Dispoz-O-Plastics, Inc., 172 F.3d at 284-

85 (noting the doctrine may not be used as a “springboard” to

“launch[] affirmative attacks upon defendants”) (internal quotation

and citation omitted); United States v. Pelullo, 964 F.2d 193, 218 (3d

Cir. 1992). Notably, “[w]e have generally found the invited response

doctrine to be applicable only in instances where the prosecution team

was attacked for reasons unsupported by the evidence at trial.” 

Dispoz-O-Plastics, Inc., 172 F.3d at 285. For example, we have

upheld use of the doctrine where the defense has asserted that the

prosecutor suborned perjury, Gambino, 926 F.2d at 1364-66, and

where the defense has made personal attacks on the integrity of

prosecutors and law enforcement officers, Pungitore, 910 F.2d at
10

1126-27. 

Here, the government protests that defense counsel “invited

the jury to consider the results in unrelated cases in which defendants

were exonerated after trial due to later review of DNA findings” and

“clearly intended for the jury to decide to acquit based on

uncertain[ty] caused by the results in different cases.” Appellee’s br.

at 21. But the government’s interpretation of defense counsel’s

remarks is unduly broad. Read in context, defense counsel merely

was emphasizing the importance of gathering corroborative evidence

at the outset of an investigation for purposes of determining whether a

particular suspect is in fact responsible for a particular crime for, as

we set forth above, he said:

I say to you, members of the jury, that no one saw

Shaheed Wood drive that car to that location, that no

one saw Mr. Wood get out of that car. We know that

the car was held for fingerprints but that there were no

fingerprints in that car that connected Mr. Wood at that

date to that car. . . . [T]hat’s why this corroborative

evidence is important. And, that’s why it is the lack of

the evidence in this case that creates the reasonable

doubt. I mean the Agent got up here and had the

gumption to tell you that we didn’t have to examine

evidence because we had a case against this man. We

didn’t have to look – examine the evidence because we

will wait for the guys to get caught before we examine

the evidence. Well, that belies common sense. You

know, members of the jury, how many people on death

row have been let off with the discovery of DNA

evidence that says that they are innocent? Surely, the

cops in that case thought they had the right guy.

App. at 50-51. 

More pertinently for present purposes, there is no way in

which we can view the defense attorney’s comments as constituting

an attack on the prosecutor’s case predicated on arguments that are

unsupported by the evidence at trial as, in fact, has happened in other

cases. See Dispoz-O-Plastics, Inc., 172 F.3d at 284-86; Gambino, 926

F.2d at 1364-66; Pungitore, 910 F.2d at 1126-27. Accordingly, we

find that treating the prosecutor’s remarks as inappropriate, the invited

response doctrine is not applicable in this case. 
Not only was the jury instructed not to treat counsel’s 4

summation as evidence, but it was specifically instructed to “carefully

and impartially consider all of the evidence in the case, follow the law,

as stated by the Court, and reach a true and just verdict.” App. at 65.

And, if the prosecution’s remarks left any doubt about the jury’s role, it

was neutralized by this instruction:

As jurors, your role is to resolve and decide the factual

issues in this case. 

You are the sole and exclusive judges of the facts [,]

you decide upon the weight ofthe evidence. You determine the

credibility of witnesses. You resolve such conflicts as there

may be in the evidence, and you draw such reasonable

inferences as may be warranted by the testimony or exhibits in

the case.

Id. If defense counsel believed this instruction was insufficient to

prevent the jury from relying on the court of appeals, counsel had the

opportunity to offer an instruction of his own. The government

suggested that there could be a cautionary instruction but the defense did

not seek it.

11

But notwithstanding the inapplicability of the invited response

doctrine and treating the prosecutor’s remark as improper, we still will

not reverse for “[a] mistrial is not required where improper remarks

were harmless, considering their scope, their relation to the context of

the trial, the ameliorative effect of any curative instructions and the

strength of the evidence supporting the conviction.” Rivas, 479 F.3d

at 267; see also United States v. Gambone, 314 F.3d 163, 179 (3d Cir.

2003); United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995). 

Here, as the government points out, the challenged comment was only

a single sentence in the prosecutor’s entire closing argument, which

continued at some length after he made his comment. Though it is

true that the district court did not charge the jury with an expressly

curative instruction, it did state to the jury that opening and closing

statements made by counsel were not considered evidence, and that

the jury must base its verdict on only the evidence presented.4

Moreover, we have made an intensive review of the case and based on

that review we are satisfied that there is convincing evidence,

including, but not limited to Demota’s testimony, supporting Wood’s

convictions on the charges listed in the indictment. In short, we are

certain beyond any possible doubt that the prosecutor’s comment
Section 3A1.2(c) now provides in relevant part:

5

If, in a manner creating a substantial risk of serious

bodily injury, the defendant or a person for whose

conduct the defendant is otherwise accountable–

(1) knowing or having reasonable cause to believe

that a person was a law enforcement officer,

assaulted such officer during the course of the

offense or immediate flight therefrom . . . 

increase by 6 levels.

Under the plain error standard, a reviewing court may reverse an

6

order or judgment of the district court “only if [it] find[s] that (1) an

error was committed; (2) the error was plain, that is, it is ‘clear’ and

‘obvious;’ and (3) the error ‘affected [the defendant’s] substantial

rights.’” United States v. Nappi, 243 F.3d 758, 762 (3d Cir. 2001)

(quoting United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770,

1777-78 (1993)). “If a forfeited error is plain and affect[s] substantial

rights, a Court of Appeals has the authority to order correction, but is not

required to do so.” United States v. Stevens, 223 F.3d 239, 242 (3d Cir.

12

could not have affected the verdict and thus if there was an error in the

district court, whether by the prosecutor or the court, it was harmless. 

There is simply no doubt that Wood is guilty. See Gambone, 314

F.3d at 177. 

We close our section on the review of the trial aspect of the

case with the following caution. In this case the prosecutor’s

comment did not lead to reversal. But we emphasize that reference in

an argument to the review function of the courts of appeals may be

dangerous territory into which a prosecutor should venture with care.

B. Upward Adjustment for “Official Victim” under the

Sentencing Guidelines

Wood argues second that the district court violated the ex post

facto clause by applying a 6-level sentence enhancement pursuant to

U.S.S.G. § 3A1.2(c). Although Wood objected to the application of 5

section 3A1.2(c), he did so on grounds other than the ex post facto

clause and he does not raise those grounds on this appeal. 

Accordingly, our review of this alleged error is for plain error only.6
2000) (internal quotations and citation omitted). Rather, the court

should exercise its discretion “only if the error seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.” Id.

(internal quotations and citation omitted). Defendants bear the burden

of demonstrating that “plain error” occurred. Olano, 507 U.S. at 734,

113 S. Ct. at 1778.

Specifically, § 3A1.2(b) (2002) provided that: 7

If, in a manner creating a substantial risk of serious

bodily injury, the defendant or a person for whose

conduct the defendant is otherwise accountable–

(1) knowing or having reasonable cause to believe

that a person was a law enforcement officer,

assaulted such officer during the course of the

offense or immediate flight therefrom . . . 

increase by 3 levels.

13

See Fed. R. Crim. P. 52(b); United States v. Syme, 276 F.3d 131, 158

(3d Cir. 2002).

The “official victim” enhancement relied on by the district

court during Wood’s January 5, 2006 sentencing was amended,

effective November 1, 2004. Wood, however, engaged in the conduct

charged in the indictment on January 10, 2004, approximately 10

months before the amendment became effective. Prior to the

amendment, Wood would have been subject to a 3 rather than 6 level

enhancement under the “official victim” guideline provision. See 7

U.S.S.G. § 3A1.2(b) (2002). We realize that, as a general rule,

“sentencing courts must apply the guidelines in effect at the time of

sentencing, not at the time of the crime.” United States v. Kopp, 951

F.2d 521, 526 (3d Cir. 1991), superseded in part on other grounds as

recognized by United States v. Corrado, 53 F.3d 620 (3d Cir. 1995). 

But where, as here, “such retroactivity results in harsher penalties, Ex

Post Facto Clause problems arise, and courts must apply the earlier

version.” Id.; see also U.S.S.G. § 1B1.11(b) (“If the court determines

that use of the Guidelines Manual in effect on the date that the

defendant is sentenced would violate the ex post facto clause of the

United States Constitution, the court shall use the Guidelines Manual

in effect on the date that the offense of conviction was committed.”);

United States v. Menon, 24 F.3d 550, 566 (3d Cir. 1994) (“[C]hanges
14

in sentencing guidelines that enhance the penalty offend the Ex Post

Facto Clause of Article I of the United States Constitution.”). 

In this case, the government concedes that all three prongs of

plain error review have been met, i.e., that the district court erred in

applying the 2004, rather than the 2002, “official victim”

enhancement, the error was clear and obvious, and Wood’s substantial

rights were affected. See United States v. Knight, 266 F.3d 203, 207

(3d Cir. 2001) (holding that under plain error review “an error in

application of the Guidelines that results in use of a higher sentencing

range should be presumed to affect the defendant’s substantial

rights”). Accordingly, we will vacate Wood’s sentence and remand

the case to the district court with instructions to rely on the 2002,

rather than the 2004, “official victim” enhancement for purposes of

sentencing. Resentencing should be in accordance with 18 U.S.C. §

3553(a). See United States v. Cooper, 437 F.3d 324, 329 (3d Cir.

2006); see also United States v. Colon, 474 F.3d 95, 100 (3d Cir.

2007).

V. CONCLUSION

For the foregoing reasons, we will affirm Wood’s judgment of

conviction entered on January 27, 2006, but will vacate the sentence

and will remand the case to the district court for the limited purpose

of resentencing.