UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4410

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GREGORY E. CAPLINGER,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Statesville. Lacy H. Thornburg,

District Judge. (CR-99-39)

Submitted: November 2, 2005 Decided: December 1, 2005

Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas K. Maher, WINSTON & MAHER, Chapel Hill, North Carolina, for

Appellant. Gretchen C. F. Shappert, United States Attorney,

Charlotte, North Carolina; Amy E. Ray, Assistant United States

Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*At the resentencing hearing, the district court considered

the federal sentencing guidelines advisory, consistent with United

States v. Booker, 125 S. Ct. 738 (2005). Caplinger does not

challenge his sentence under Booker.

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PER CURIAM:

A jury convicted Gregory E. Caplinger of wire fraud and

aiding and abetting wire fraud, in violation of 18 U.S.C. §§ 1343,

2 (2000); and money laundering and aiding and abetting money

laundering, in violation of 18 U.S.C. §§ 1956, 2 (2000). We

affirmed his conviction, vacated the sentence, and remanded the

case to the district court for resentencing without a two-level

enhancement for abuse of a position of trust under U.S. Sentencing

Guidelines Manual (“USSG”) § 3B1.3 (2000). See United States v.

Caplinger, 339 F.3d 226, 238 (2003). On remand, Caplinger argued

that, pursuant to USSG § 1B1.11, he should be resentenced under the

sentencing guidelines in effect at the time of his resentencing.

But after his initial sentencing, Congress enacted the PROTECT Act,

18 U.S.C.A. § 3742(g) (West Supp. 2005), which states that when

resentencing after appellate remand, a district court should apply

the sentencing guidelines “that were in effect on the date of the

previous sentencing of the defendant prior to the appeal.” Id.;

see United States v. Bordon, 421 F.3d 1202, 1205 (11th Cir. 2005).

During resentencing, the district court referred to the same

sentencing guidelines as used in the initial sentencing and

resentenced Caplinger to 124 months’ imprisonment.* Caplinger
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appeals, claiming his inability to benefit from a change to the

money laundering sentencing guidelines constitutes punishment in

violation of the Ex Post Facto Clause, U.S. Const. art. I, § 9.

Caplinger argues that the PROTECT Act deprives him of a

benefit afforded by USSG § 1B1.11, which he claims would afford him

the opportunity of being sentenced under a more lenient money

laundering guideline upon resentencing. However, § 1B1.11 “says

nothing about the issue presently before this Court.” United

States v. Orlando, 363 F.3d 596, 602 (6th Cir. 2004) (holding that

“[t]he relevant comparison at issue in § 1B1.11 is between the

Guidelines in effect at the time of a defendant’s sentencing versus

those in effect at the time of a defendant’s relevant offense, not

between the version of the Guidelines in effect at the time of

resentencing versus those in effect at the time of a defendant’s

original sentencing”). Moreover, because Caplinger “seeks to have

applied to his case advantageous post-appeal changes to the

Guidelines,” id., no ex post facto concern is present. “To prevail

on this sort of ex post facto claim,” Caplinger “must show both

that the law he challenges operates retroactively (that it applies

to conduct completed before its enactment) and that it raises the

penalty from whatever the law provided when he acted.” Johnson v.

United States, 529 U.S. 694, 699 (2000). The PROTECT Act does not

increase the penalty for Caplinger from what it was at the time he
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committed the offense; therefore, it “does not violate the Ex Post

Facto Clause.” Bordon, 421 F.3d at 1207. 

Accordingly, we affirm the district court’s judgment. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED