* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________

No. 95-31166 

Summary Calendar

______________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

versus

ARTHUR DEAN COMBS, also known as Dreb Combs,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Middle District of Louisiana

(95-CR-27-B-M1)

_________________________________________________________________

July 18, 1996

( )

Before SMITH, BENAVIDES and DENNIS, Circuit Judges.

PER CURIAM*:

Defendant-Appellant Arthur Dean Combs ("Combs") challenges the

district court's sentencing following his guilty-plea conviction

for possession with intent to distribute cocaine in violation of 21

U.S.C. § 841(a)(1). Combs raises three issues on appeal: the

increase of Combs's offense level for obstruction of justice; the

increase of Combs's offense level for reckless endangerment during

flight; and the failure to reduce Combs's offense level in

accordance with the 1995 amendment to the Sentencing Guidelines in

U.S.S.G. § 2D1.1(b)(4). 
2

1. Obstruction of justice: The PSR provides that while Combs was

incarcerated, he wrote at least five letters to his co-defendant,

Hugh Robinson ("Robinson"), in an attempt to influence Robinson's

answers to, and cooperation with, the Government regarding Combs's

criminal activities. In the letters, Combs admitted that he lied

to the Government. Despite his contentions that the statements he

made in the letters were not material, the facts adopted by the

district court indicate that Combs attempted to influence Robinson

to provide false information to the Government and that Combs

himself intended to, and did, lie to the Government during the

investigation of his offense. This conduct comports with that

prohibited by 18 U.S.C. § 1512(b). Therefore, we find that the

district court did not err in enhancing Combs's offense level for

obstruction of justice. See United States v. Pofahl, 990 F.2d

1456, 1481-82 (5th Cir.), cert. denied, 114 S.Ct. 266, 126 L.Ed.2d

218 and 114 S.Ct. 560, 126 L.Ed.2d 460 (1993).

2. Reckless endangerment during flight: The PSR provides that

Drug Enforcement Agents had to run between on-coming automobiles

and that "at least one of the four agents came dangerously close to

being hit by on-coming traffic" while pursuing Combs across the

Interstate. In adopting the facts in the PSR, the district court

noted that "[m]erely running across the street does not

automatically constitute endangerment to either the general public

or to the officers involved," however, the court found that the

circumstances presented in this case warranted an increase in

Combs's offense level. Section 3C1.2 of the Guidelines requires
3

only a substantial risk of death or serious bodily injury to

another person caused by the defendant's attempted flight from law

enforcement officers. As the district court correctly found, those

requirements were met in Combs's attempted escape across multiple

lanes of traffic on the Interstate.

3. 1995 Guideline amendment: The Government agrees with Combs

that the district court erred when it failed to apply a 1995

Guidelines amendment at sentencing that would have resulted in a

two-level reduction in Combs's offense level pursuant to U.S.S.G.

§ 2D1.1(b)(4). The parties also agree that the error is clearly

obvious from the record. Indeed the district court noted in the

record after sentencing that it erred in not reducing Combs's

offense level pursuant to the 1995 amendment. The court stated

that "it is clear in this court's judgment that the court applied

the wrong guidelines edition insofar as the applicable sections

were concerned, that some type of correction would have to be made

by the court either now or subsequent to the appeal being

considered by the Fifth Circuit Court of Appeals." The court

refrained from resentencing Combs, however, because it questioned

its jurisdiction since Combs had already perfected his appeal to

this Court. It is undisputed that the error here was clear and

obvious at the time of sentencing. Plain err is one that is "clear

or obvious, and, at a minimum, contemplates an error which was

clear under current law at the time of trial." United States v.

Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994) (en banc), cert.

denied 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995) (internal quotation
4

and citation omitted). "If the forfeited error is 'plain' and

'affect[s] substantial rights,' the Court of Appeals has authority

to order correction, but is not required to do so." United States

v. Olano, 507 U.S. 725, 735 (1993) (quoting FED. R. CRIM. P. 52(b)).

The error here affected Combs's substantial rights inasmuch as he

was subjected to a greater punishment than that which would have

been imposed had the correct version of the Guidelines been used.

We find that the district court plainly erred in failing to apply

the 1995 version of Section 2D1.1(b)(4) to reduce Combs's offense

level at sentencing. Therefore, we VACATE Combs's sentence and

REMAND for resentencing in accordance with the 1995 version of

Section 2D1.1(b)(4) of the Guidelines.

VACATED AND REMANDED FOR RESENTENCING.