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Click here for the full text of this decision FACTS:Defendant-Appellant Terry Ray Pennell (Pennell), appeals his conviction on four counts of money laundering under 18 U.S.C. 1956 HOLDING:The court affirms the conviction but vacates the sentence and remands for re-sentencing. The court finds that the evidence was sufficient to support Pennell’s conviction on the four counts of money laundering under 1956. At sentencing and on appeal, the appellant argues that the court should have selected for sentencing purposes the net loss to the bank ($234,552.48) or, at most, the total of the bogus invoices ($359,613.17) and should have included none of the “premature” invoices ($479,681.42) in calculating loss. The court concludes that the district court did not err in including the premature invoices in the amount of loss calculation. Appellant argues that the district court committed Booker error by using extra-verdict facts to compute the loss under a mandatory guideline regime in violation of his sixth amendment rights. Because the error was not preserved the court applies plain error review. An appellate court may not correct an error that the defendant failed to raise in the district court unless there is 1. error ; 2. that is plain; and 3. that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error but only if 4. the error seriously affects the fairness and integrity or public reputation of judicial proceedings. U.S. v. Cotton, 535 U.S. 625 (2002). The court finds that the first two prongs are easily met. Regarding the third prong, the district court sentenced Pennell at the bottom of the guideline range and also made the remark that this “would be sufficient to bring about a just resolution of this case.” While the district court may not have considered the sentence it imposed unjust, this does not negate the district court’s statement that, had he been free to do so, he would have selected a different loss figure which would have resulted in a lesser sentence. Turning to the fourth prong, the court notes that the district court in this case indicated that “fairness and justice” might be better served if defendants such as Pennell were sentenced based on actual loss rather than intended loss which would result in a lesser sentence than the one the district court felt constrained to impose. Under these circumstances, Pennell has carried his burden to establish the fourth prong of the plain error test, the court holds. The court leaves open the question of whether a panel can, under these or similar circumstances, vacate a sentence and instead of requiring resentencing, permit the district court to determine whether it would have imposed the same sentence had it known the sentencing guidelines were advisory and based on this decision, determine whether it wishes to reinstate the same sentence or resentence the defendant. OPINION:Davis, J.; Davis, Smith and DeMoss, JJ.

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