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Argued September 6, 2001

Arnett C. Smith appeals his conviction under 18 U.S.C. s 208(a) and s 371 for conflict of interest by an officer or employee of the District of Columbia and conspiracy. Smith, formerly the District official responsible for referring mentally disabled patients to day treatment programs, was convicted after engaging in dubious financial dealings with the owner of one of the facilities to which he had sent patients. The District Court sentenced Smith to 46 months in prison, after fixing his total offense level under the Sentencing Guidelines at 22, which included a three-level upward departure based on uncharged fraudulent conduct.

On appeal, Smith challenges both his conviction and his resulting sentence. He claims first that he was wrongly convicted for violating s 208(a), advancing the novel theory that this statute should be read to exclude persons who are employed at his government salary level. We reject this argument, which borders on the frivolous. Smith’s attacks on his sentence, however, have considerable merit. Specifically, Smith asserts that the District Court applied the wrong burden of proof in determining the predicate offense for his conspiracy conviction. He is correct. Because this error was plain, we are compelled to vacate and remand Smith’s sentence. In addition, we have concluded that the findings and calculations that the District Court used to support its upward departure are materially flawed. On remand, the trial court must therefore reconsider its decision to depart.

 
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