US v. Alvin Ross, Jr.

Filing 920091118

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4507

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. ALVIN JOSEPH ROSS, JR., a/k/a hrnybtmincharlotte, a/k/a Jacob Jingleheimer, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:07-cr-00102-LHT-1)

Submitted:

October 1, 2009

Decided:

November 18, 2009

Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina; Fredilyn Sison, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Alvin Joseph Ross pled guilty to one count of traveling in interstate commerce for the purpose of engaging in a sexual act with a minor who was (a) over 12 years-old but less than 16 years-old and (b) at least four years younger than Ross, in violation of 18 U.S.C. § 2423(b). Ross was sentenced to 66

months of imprisonment, and he now appeals the sentence arguing that the district court erroneously applied a two-level

enhancement under U.S.S.G. § 2G1.3(b)(2)(B). forth below, we vacate the sentence and

For the reason set remand for further

proceedings. On appeal, Ross contends that the enhancement ­ which

generally applies when a defendant unduly influences a minor to engage in prohibited sexual conduct -- is inapplicable because the "minor" in this case was actually an undercover law

enforcement officer with whom he communicated via the internet. At the time of the sentencing, a circuit split existed on the applicability of the enhancement in this circumstance, and this Court had not addressed the issue. appeal, the United States During the pendency of this Commission amended the

Sentencing

Commentary to § 2G1.3 expressly to resolve the circuit split, explaining that "subsection (b)(2)(B) does not apply in a case in which the only `minor' . . . involved in the offense is an

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undercover law enforcement officer." Amend. 732 (effective Nov. 1, 2009).

U.S.S.G. App. C. Supp.,

In light of the amendment, we requested supplemental briefs from the parties on the question of whether the amendment is applicable in this case. Based on our circuit precedent, the

parties contend that the amendment is a "clarifying amendment" which must be applied on appeal and, therefore, we should remand the case to the district court for resentencing. We agree.

See, e.g., United States v. Goines, 357 F.3d 469, 474 (4th Cir. 2004) (explaining the applicability of "clarifying" guideline

amendments on appeal). Accordingly, we vacate Ross' sentence and remand this case to the district court for resentencing. argument as the facts and legal We dispense with oral are adequately

contentions

presented in the materials before the Court and argument would not aid the decisional process. VACATED AND REMANDED

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