* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-50639

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ANTHONY J. COLEMAN,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________

September 12, 1996

ON PETITION FOR REHEARING

Before KING, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

The petition for rehearing is GRANTED. The second sentence of

the opinion issued on August 9, 1996, is amended to read, "We

vacate and remand for resentencing." Part IV of the opinion is

amended to read as follows:
2

IV.

Coleman maintains that the district court utilized the wrong

methodology in applying the U.S.S.G. § 5K1.1 two-level downward

departure for "substantial assistance to authorities" by computing

the departure from the cross-referenced offense level rather than

from the statutory maximum sentence. The court first calculated a

base offense level of 43, then granted the government’s U.S.S.G.

§ 3E1.1(a) motion for a three-level reduction for acceptance of

responsibility. This left Coleman with an offense level of 40 and

a corresponding sentencing range of 360-405 months to life. 

In granting the government's motion for a downward departure

for cooperation, the court explained that it would "depart downward

three levels . . ., which results in an offense level of 37, a

range of 292 to 365 months." The statutory maximum sentence for

bank robbery, however, is 300 months under 18 U.S.C. § 2113. So,

because his sentencing range exceeded the statutory maximum,

Coleman did not receive any benefit from the § 3E1.1 reduction but,

instead, was sentenced to the statutory maximum.

Coleman failed to raise this issue at sentencing. As a

result, under FED. R. CRIM. P. 52(b), we may not vacate his sentence

unless the sentencing court committed plain error. United States

v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing

United States v. Olano, 507 U.S. 725, 731-37 (1993)), cert. denied,
1 We refer here only to adjustments under chapter 5 of the guidelines and

do not consider what the result would be for a chapter 3 adjustment as informed

by U.S.S.G. § 1B1.5(c).

3

115 S. Ct. 1266 (1995).

Coleman must show that there is an error, that it is plain,

and that it affects substantial rights. Olano, 507 U.S. at 732.

Even where an appellant carries that burden, "Rule 52(b) is

permissive, not mandatory," id. at 735, and we are not required to

correct the error unless it "seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings," id. at

732 (citation omitted, brackets in original).

Here, the error is plain. Section 5G1.1(a) provides that when

a statutory "maximum sentence is less that the minimum of the

applicable guideline range, the statutor[y] maximum . . . shall be

the guideline sentence." See United States v. Kings, 981 F.2d 790,

797 (5th Cir. 1993). The commentary to § 5G1.1 explains the

correct methodology:

This section describes how the statutorily

authorized maximum sentence . . . may affect the

determination of a sentence under the guidelines. For

example, if the applicable guideline range is 51-63

months and the maximum sentence authorized by statute for

the offense of conviction is 48 months, the sentence

required by the guidelines under subsection (a) is 48

months; a sentence of less than 48 months would be a

guideline departure. 

(Emphasis added.) This indicates that the departure is subtracted

from the statutory maximum, not from the guideline range as

otherwise calculated.1 In United States v. Martin, 893 F.2d 73, 76
4

(5th Cir. 1990), we observed that it is, indeed, appropriate for a

district court, in its discretion, to "depart from the guidelines

and sentence below the statutory maximum . . . when the guideline

calculations yield a sentencing range above the statutory maximum."

It is also evident that the error affected Coleman's

substantial rights. This is because he received no benefit from

his cooperation, which was, to him, an important benefit of the

bargain he struck. As we have decided that the error should be

corrected, we need not and therefore do not consider whether it is

so severe as to affect the "fairness, integrity or public

reputation of judicial proceedings."

The judgment of sentence is VACATED and REMANDED for

resentencing. We do not mean to instruct the district court on

what sentence it should impose, or even on whether it should depart

in sentencing. Rather, we remand only in order that the court may

exercise its sentencing discretion under the correct methodology

that we have explained.