UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 00-4897
MICHAEL DONALD WILLIAMS,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
              Terrence W. Boyle, Chief District Judge.
                             (CR-99-32)

                      Argued: December 6, 2001

                      Decided: January 16, 2002

     Before LUTTIG, KING, and GREGORY, Circuit Judges.



Vacated and remanded by unpublished per curiam opinion.


                             COUNSEL

ARGUED: George Alan DuBois, Assistant Federal Public Defender,
Raleigh, North Carolina, for Appellant. Felice McConnell Corpening,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Thomas P. McNamara, Federal Public Defender,
Raleigh, North Carolina, for Appellant. John Stuart Bruce, Interim
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
2                        UNITED STATES v. WILLIAMS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                                 OPINION

PER CURIAM:

   Michael Donald Williams appeals from his sentence of thirty
months of imprisonment imposed in the Eastern District of North Car-
olina. His conviction and sentence resulted from his guilty plea for a
single count of impersonating a federal officer, in violation of 18
U.S.C. § 912. Williams maintains on appeal that the district court, in
imposing sentence, committed reversible error when it applied an
upward 2-level adjustment for abuse of a position of trust, pursuant
to United States Sentencing Commission, Guidelines Manual
§ 3B1.3. (Nov. 1998).1 As explained below, we conclude that this
contention has merit, and we vacate and remand.

                                      I.

   Williams was charged on March 16, 1999, in a single-count indict-
ment, with violating 18 U.S.C. § 912 by falsely assuming and pre-
tending to be a United States Marshal,2 and thereby obtaining $700
in United States currency.3 On July 17, 2000, without any kind of plea
    1
    We refer to the United States Sentencing Commission, Guidelines
Manual, as the "Guidelines" or "USSG."
  2
    Section 912 of Title 18 of the United States Code provides, in perti-
nent part, that:
     [w]hoever falsely assumes or pretends to be an officer or
     employee acting under the authority of the United States or any
     . . . agency or officer thereof, and acts as such, or in such pre-
     tended character demands or obtains any money . . . shall be
     (punished according to law).
  3
    The indictment against Williams, returned on March 16, 1999, pro-
vides that:
        [b]etween May, 1997 and July, 1997, in the Eastern District of
        North Carolina, the defendant, MICHAEL DONALD WIL-
                       UNITED STATES v. WILLIAMS                           3
agreement or arrangement with the Government, Williams entered a
plea of guilty to the indictment. The factual basis for Williams’s plea
was simple: Williams had exhibited a badge to the victim of his
crime, Sherry Ewing; he had falsely advised her he was a United
States Marshal; and he had claimed he could obtain a Government-
seized Lexus automobile for her. Thereafter, Ewing paid Williams
$700 in cash for purchase of the Lexus, and Williams falsely prom-
ised to deliver the luxury vehicle to her. Williams, however, failed to
deliver the Lexus to Ewing, and he of course kept the money.

   A Presentence Investigation Report ("PSR") was completed prior
to Williams’s sentencing, and the Government made no objections to
its contents. Williams, however, filed nine objections to the PSR,
including an assertion that he had not represented to Ewing, in con-
nection with his criminal activity, that he was acting on behalf of a
Government agency.

   At his November 27, 2000, sentencing proceeding conducted in the
Eastern District of North Carolina, Williams orally presented two
objections to the PSR: (1) he maintained the objection that the PSR
incorrectly concluded that he was acting on behalf of the Government
when he advised Ewing that he could purchase the Lexus for her, and
(2) Williams asserted, for the first time, that the PSR erroneously con-
cluded that he had abused a position of private or public trust. The
district court overruled all of Williams’s objections, and it proceeded
to impose sentence.

   In determining the Guideline on which Williams’s sentence should
be based, the court analyzed the provisions of both USSG §§ 2J1.4
(impersonation) and 2F1.1 (fraud and deceit). The court first looked
to § 2J1.4, which fixes the base level offense at 6.4 This Guideline,

     LIAMS, did falsely assume and pretend to be an officer and
     employee of the United States acting under the authority thereof,
     that is a United States Marshal, and in such assumed and pre-
     tended character did obtain a thing of value, in that he obtained
     the sum of $700.00 in United States currency in violation of Title
     18, United States Code, Section 912.
  4
    USSG § 2J1.4 instructs the sentencing court, in relevant part, that "[i]f
the impersonation was to facilitate another offense, apply the guideline
for an attempt to commit that offense, if the resulting offense level is
greater than the offense level determined above."
4                        UNITED STATES v. WILLIAMS
however, requires cross-reference to other provisions of the Guide-
lines, if (1) the impersonation was to facilitate another offense, and
(2) application of the cross-referenced Guideline would result in an
offense level greater than 6. USSG § 2J1.4. As such, because Wil-
liams’s impersonation of a federal Marshal facilitated his commission
of a fraud, the court cross-referenced § 2F1.1, the Guideline for fraud
and deceit.5 Applying that Guideline, the court calculated an offense
level of 10, by: (1) starting with § 2F1.1(a)’s base offense level of 6;
(2) adding the 2-level enhancement for more than minimal planning,
required by § 2F1.1(b)(2); and (3) adding another 2-level enhance-
ment for misrepresenting that the defendant was acting on behalf of
a Government agency, pursuant to § 2F1.1(b)(4).

   Because the offense level of 10 calculated under § 2F1.1 was
greater than the offense level of 6 arrived at by the application of
§ 2J1.4, the court, pursuant to § 2J1.4, based Williams’s sentence on
the Guideline resulting in the higher offense level, i.e., § 2F1.1 (fraud
and deceit). The court then added an upward 2-level adjustment for
abuse of a position of trust, pursuant to § 3B1.3,6 and it awarded Wil-
liams a downward 2-level adjustment for acceptance of responsibility,
as provided for in § 3E1.1.7 Thus, after the court considered each of
    5
   USSG § 2F1.1(a), like § 2J1.4, provides for a base offense level of 6.
Section 2F1.1(b), in pertinent part, instructs that:
        (2)   If the offense involved (A) more than minimal planning
              . . ., increase by 2 levels.
        ...
        (4)
          If the offense involved (A) a misrepresentation that the
          defendant was acting on behalf of a . . . government agency
          . . ., increase by 2 levels.
    6
      USSG § 3B1.3 provides in relevant part that:
      If the defendant abused a position of public or private trust . . .,
      in a manner that significantly facilitated the commission . . . of
      the offense, increase by 2 levels. This adjustment may not be
      employed if an abuse of trust . . . is included in the base offense
      level or specific offense characteristic.
   7
     USSG § 3E1.1(a) provides that "[i]f the defendant clearly demon-
strates acceptance of responsibility for his offense, decrease the offense
level by 2 levels."
                      UNITED STATES v. WILLIAMS                        5
these adjustments, it concluded that Williams had an offense level of
10. The court also found that Williams had a criminal history level of
VI, and that his appropriate sentencing range was imprisonment for
a period between twenty-four and thirty months. The court then sen-
tenced Williams to prison for a period of thirty months.

   Williams thereafter filed this appeal, challenging only his sentence.
He maintains that it must be vacated and that he is entitled to be
resentenced because the court erred in applying the upward 2-level
adjustment for abuse of a position of trust, pursuant to § 3B1.3. More
specifically, he asserts that, had his sentence been properly calculated,
his maximum term of imprisonment could not have exceeded twenty-
four months. We possess jurisdiction pursuant to 28 U.S.C. § 1291.

                                   II.

   We review de novo questions of law relating to interpretation of
the Guidelines. United States v. Montgomery, 

, 250 (4th
Cir. 2001). On the other hand, we review for clear error factual deter-
minations of a district court under the Guidelines. 

a defendant fails to raise an issue in the district court, our review is
for plain error. United States v. Olano, 

, 731-32 (1993).

                                  III.

   On appeal, Williams maintains that his sentence should be vacated
because the court erred in applying an upward 2-level adjustment for
abuse of a position of trust, pursuant to § 3B1.3. Williams supports
this contention with the following three points: (1) he did not occupy
a position of trust with respect to Ewing; (2) if he held a position of
trust with respect to Ewing, he did not abuse that trust when he repre-
sented that he could obtain for her the Government-seized Lexus; and
(3) the court engaged in impermissible double-counting when it based
his sentence on § 2F1.1 (fraud and deceit), and also applied an
upward adjustment for abuse of a position of trust, pursuant to
§ 3B1.3.

                                   A.

   First of all, Williams asserts that he did not occupy a position of
trust with respect to Ewing because he was not actually a United
6                    UNITED STATES v. WILLIAMS
States Marshal. His contention on this point is devoid of merit. The
Commentary to the Guidelines, which we are bound to apply, see
Stinson v. United States, 

, 42-44 (1993), provides that a
§ 3B1.3 adjustment "applies in a case in which the defendant provides
sufficient indicia to the victim that the defendant legitimately holds
a position of private or public trust when, in fact, the defendant does
not." USSG § 3B1.3, comment (n.2). Thus, the critical question is
whether the facts show that Williams gave Ewing sufficient indicia
that he was a federal Marshal, not whether Williams was actually a
federal Marshal.

   The district court found as a fact that Williams exhibited a badge
to Ewing in connection with his representation that he was a United
States Marshal, which, coupled with his oral representations, consti-
tuted sufficient indicia that Williams was such an official. Morever,
it is well-settled that law enforcement officers occupy positions of
public trust. United States v. Williamson, 

, 1525 (10th
Cir. 1995); United States v. Rehal, 

, 5 (1st Cir. 1991).
Thus, the court did not err in concluding that Williams occupied a
position of trust vis-a-vis Ewing.

                                  B.

   Next, Williams contends that, even if he occupied a position of
trust with respect to Ewing, he did not abuse this trust. He maintains
that anyone can purchase a Government-seized vehicle, and therefore
he was not abusing any position of trust when he advised Ewing he
could purchase the Government-seized Lexus for her. Although the
Government asserts that Williams did not raise this issue in the dis-
trict court, we cannot agree. At his sentencing hearing, Williams
maintained that the PSR incorrectly concluded that he was acting on
behalf of the Government when he advised Ewing that he could pur-
chase the Lexus for her. The court overruled Williams’s objection,
thus preserving the issue for our review. Moreover, because his con-
tention on this point involves a question of the court’s interpretation
of the Guidelines, we review it de novo. United States v. Montgom-
ery, 

, 250 (4th Cir. 2001).

   Section 3B1.3’s Commentary provides that "[f]or this adjustment
to apply, the position of public or private trust must have contributed
                      UNITED STATES v. WILLIAMS                         7
in some significant way to facilitating the commission . . . of the
offense." USSG § 3B1.3, comment (n.1). In this case, Williams
advised Ewing that he was a federal Marshal, and at the same time
informed her that he could obtain for her the Lexus vehicle. From
Ewing’s perspective, it was Williams’s status as a federal Marshal
that permitted him to purchase the Lexus. Thus, Williams obtained
the cash sum of $700 from Ewing, at least in part, by exploiting the
trust she placed in public officials. As such, Williams’s criminal
activity involved abuse of a position of trust, and the district court did
not err in applying the § 3B1.3 2-level upward adjustment on this
basis.

                                   C.

   Finally, Williams contends that the district court engaged in imper-
missible double-counting when it based his sentence on § 2F1.1 and
then also applied an adjustment for abuse of a position of trust, pursu-
ant to § 3B1.3. We have recognized that "[i]f conduct falls within the
applicable definitions [of the Guidelines], then it is appropriate to
increase the offense level for each enhancement." United States v.
Curtis, 

, 556 (4th Cir. 1991). In reaching this conclusion,
we determined that the absence of a double-counting prohibition in
the Guidelines was by design, because the "Guidelines are explicit
when double counting is forbidden." 

double-
counting under the Guidelines "[u]nless a guideline provision
expressly prohibits consideration of a factor previously used in apply-
ing another guideline section." United States v. Blake, 

,
505 (4th Cir. 1996).

   Williams correctly asserts on appeal that § 3B1.3 expressly prohib-
its double-counting. USSG § 3B1.3 ("[T]his adjustment may not be
employed if an abuse of trust . . . is included in the base offense level
or specific offense characteristic.") (emphasis added). The court based
Williams’s sentence on the provisions of § 2F1.1 (fraud and deceit),
and Williams received a 2-level enhancement, pursuant to
§ 2F1.1(b)(4), for misrepresenting that he was acting on behalf of a
Government agency when he accepted money from Ewing. The court
then made an 2-level upward adjustment pursuant to § 3B1.3 for
abuse of a position of trust. Williams’s offense, however, involved a
single misrepresentation to a single person; he held no position of
8                     UNITED STATES v. WILLIAMS
public or private trust with respect to Ewing other than representing
himself to be a federal Marshal. Thus, the court necessarily based
both the § 2F1.1(b)(4) 2-level enhancement (misrepresentation) and
the § 3B1.3 upward 2-level adjustment (abuse of position of trust) on
the same abuse of trust, which resulted in impermissible double-
counting in the calculation of Williams’s offense level.8

   Williams, however, failed to raise the issue of impermissible
double-counting before the district court. Thus, our review of his con-
tention on this point must be for plain error. United States v. Olano,

, 731-32 (1993). We can only notice such an error if the
defendant demonstrates that (1) an error occurred, (2) it was plain,
and (3) it was material or affected the defendant’s substantial rights.

if these three conditions are satisfied, we exercise our
discretion to correct plain error only when it "seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings." 

the plain error standard mandated by Olano, there was
error in the district court’s application to Williams of both the
§ 2F1.1(b)(4) 2-level enhancement and the § 3B1.3 2-level upward
adjustment. Under Olano, plain error occurs when the error is "clear"
or "obvious." See United States v. Promise, 

, 160 (2001)
(en banc) (citing 

). We have recognized that
"[a]n error is clear or obvious when the settled law of the Supreme
Court or this circuit establishes that an error has occurred." 

and citation omitted). In this case, the double-counting
    8
   The Government maintains that the district court did not engage in
double-counting because the § 2F1.1(b)(4) enhancement and the § 3B1.3
upward adjustment each capture different aspects of Williams’s criminal
conduct. Specifically, it contends that the § 2F1.1(b)(4) enhancement
pertains to "the harm that accrues when a defendant exploits a victim’s
trust in a government or charitable organization," while, on the other
hand, the § 3B1.3 upward adjustment addresses the "harm that arises
when an individual who holds (or pretends to hold) a position of trust
uses that status to facilitate the commission of his crime." This distinc-
tion, however, is undermined by the specific provisions of § 3B1.3. The
application of § 3B1.3 is not based solely on the type of harm a defen-
dant’s conduct produces; instead, it is based on a "defendant abus[ing]
a position of public or private trust." USSG § 3B1.3.
                      UNITED STATES v. WILLIAMS                        9
error is plain because: (1) we prohibit application of a Guideline pro-
vision that expressly precludes consideration of a factor previously
used in applying another Guideline; (2) § 3B1.3 contains such a pro-
hibition, by forbidding the application of the upward adjustment "if
an abuse of trust . . . is included in the base offense level or specific
offense characteristic" of the applicable Guideline; and (3) the appli-
cable Guideline, § 2F1.1, contains a specific offense characteristic for
abuse of trust, i.e., a misrepresentation that the defendant was acting
on behalf of a Government agency.

   Turning to the third prong of Olano, Williams has demonstrated
that the double-counting error was plain, and that it affected his sub-
stantial rights, because he was "sentenced at a more severe guideline
range." See United States v. Ford, 

, 1356 (4th Cir. 1996)
(citing United States v. Robinson, 

, 273 (7th Cir. 1994)
("A sentence based on an incorrect guideline range constitutes an
error affecting substantial rights and can thus constitute plain
error.")); see also United States v. Cotton, 

, 406 (4th Cir.
2001); 

(en banc). Finally, under Olano, we
should exercise our discretion to correct this error. As Judge Russell
properly observed in our Ford opinion, "sentencing a defendant at the
wrong guideline range seriously affects the fairness, integrity, and
public reputation of the judicial proceedings." 

.
When Williams’s sentence is properly calculated, the appropriate sen-
tencing range is imprisonment for eighteen to twenty-four months.
Williams is currently serving a term of thirty months — six months
longer than his maximum permissible sentence under the Guidelines.
And, as Judge Russell succinctly stated, "[n]o court of justice would
require a man to serve . . . undeserved years in prison when it knows
that the sentence is improper." 

sentence must be vacated, and we remand
for appropriate resentencing.

                                        VACATED AND REMANDED