[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-16116 

Non-Argument Calendar

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D. C. Docket No. 1:11-cr-00028-WLS-TQL-7

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CASEY STAMPS,

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Georgia

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(July 15, 2013)

Before DUBINA, Chief Judge, HULL and JORDAN, Circuit Judges.

PER CURIAM:

Appellant Casey Stamps (“Stamps”) appeals his 18-month prison sentence 

for misprision of a felony, a violation of 18 U.S.C. § 4. Stamps argues the district 

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court erred when it departed upward under U.S.S.G. § 5K2.21 based on 

consideration of uncharged conduct that did not have any relation to the charged 

offense. The Government concedes error by the district court. [Appellee Br. at 9.] 

Accordingly, we vacate the sentence and remand.

I.

In the summer of 2010, law enforcement learned illegal drugs and 

prescription medications were being distributed at the U.S. Marine Corps Logistics 

Base in Albany, Georgia. Law enforcement officers obtained wiretaps and began 

eavesdropping on the telephone conversations of suspected drug dealers. It was 

through a wiretap that officers heard a conversation between Stamps, and Justin 

Mathis (“Mathis”), a suspected drug dealer. Stamps, who apparently purchased 

drugs from Mathis for personal use, was overheard warning Mathis about the 

arrests of other drug dealers on the base and advising Mathis to be careful. Based 

on this conversation, Stamps was indicted for misprision of a felony.

Officers arrested Stamps at his home on September 28, 2011. At the time of 

the arrest, officers found four .22 caliber rifles, one 20-gauge shotgun, and one 

.243 caliber rifle in the home. As a convicted felon, Stamps was prohibited from 

possessing firearms. However, the Government never charged Stamps with the 

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offense of being a felon in possession of a firearm. Stamps later plead guilty to 

misprision of a felony.

II.

Based on Stamps’ prior criminal history and offense level, his guideline 

range was zero to six months of imprisonment. However, at the sentencing 

hearing, the district court departed upward and imposed a sentence of 18 months 

imprisonment. The court, relying on U.S.S.G. § 5K2.21, primarily justified the 

departure based on Stamps’ illegal possession of firearms. Stamps did not raise 

any objection to the sentence at the time it was imposed; thus, we review for plain 

error only. United States v. Maurice, 69 F.3d 1553, 1556 (11th Cir. 1995).

On appeal, the Government concedes Stamps’ illegal possession of the 

firearms was not an appropriate basis for the district court’s upward departure, 

citing our precedent in United States v. Ellis, 419 F.3d 1189 (11th Cir. 2005) in 

support. 

III.

Accordingly, based on the government’s confession of error, we vacate 

Stamp’s sentence and remand this case with direction to resentence without 

consideration of Stamps’ illegal possession of the firearms.

VACATED and REMANDED.

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