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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-50302
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES LEE FRANKS, SR.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
_________________________________________________________________
(February 15, 1995)
Before KING, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:
Charles Lee Franks, Sr., pleaded guilty to a three-count bill
of information charging as follows: 1) for possession with intent
to distribute marijuana, 21 U.S.C. § 841(a)(1); for being a felon
in possession of a firearm, 18 U.S.C. § 922(g)(1); and for money
laundering, 18 U.S.C. § 1956(a)(1)(B). Franks filed no objections
to the Presentence Investigations Report ("PSR") prior to
sentencing. At sentencing, Franks contended that he should receive
a three-level reduction for acceptance of responsibility, as well
as a downward adjustment pursuant to the government's § 5K1.1
motion. The district court denied the § 5K1.1 motion, adopted the

PSR's recommendation against a three-level reduction for acceptance
of responsibility, and sentenced Franks to concurrent sentences of
60 months on Count One, 120 months on Count Two, 188 months on
Count Three, and to a three-year term of supervised release.
Franks timely noticed his appeal.
I
In addition to raising the § 5K1.1 and acceptance-of-
responsibility issues, Franks contends for the first time on appeal
that the PSR mistakenly assigned him a base offense level of 23 on
the money-laundering count. Franks argues that the sentencing
guidelines assign a base offense level of 20 to a violation of 18
U.S.C. § 1956(a)(1)(B), the section of § 1956 to which he pleaded
guilty. Id.; § 2S1.1(a)(2). Franks also asserts for the first
time on appeal that the PSR misapplied § 3D1.4 in determining the
appropriate combined offense level.
It is elementary that parties are required to challenge errors
in the district court. When a defendant in a criminal case has
forfeited an error by failing to object, this court may remedy the
error only in the most exceptional case. U.S. v. Rodriguez, 15
F.3d 408, 414 (5th Cir. 1994). The Supreme Court has directed the
courts of appeals to determine whether a case is exceptional by
using a two-part analysis. U.S. v. Olano, ___ U.S. ___, 113 S.Ct.
1770, 1777-79, 123 L.Ed.2d 508 (1993).
First, an appellant who raises an issue for the first time on
appeal has the burden to show that there is actually an error, that
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it is plain ("clear" or "obvious"), and that it affects substantial
rights. Id. at 1777-78.; Rodriguez, 15 F.3d at 414-15; Fed. R.
Crim. P. 52(b). This Court lacks the authority to relieve an
appellant of this burden. Olano, 113 S.Ct. at 1781.
Second, the Supreme Court has directed that, even when the
appellant carries his burden, "Rule 52(b) is permissive, not
mandatory. 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." Olano, 113 S.Ct. at
1778 (quoting Fed. R. Crim. P. 52(b)). As the Court stated in
Olano:
the standard that should guide the exercise of
[this] remedial discretion under Rule 52(b) was
articulated in United States v. Atkinson, [297 U.S.
157 (1936)]. The Court of Appeals should correct a
plain forfeited error affecting substantial rights
if the error `seriously affect[s] the fairness,
integrity or public reputation of judicial
proceedings.'
Olano, 113 S.Ct. at 1779 (quoting Atkinson, 297 U.S. at 160).
Thus, this Court's discretion to correct an error pursuant to Rule
52(b) is narrow. Rodriguez, 15 F.3d at 416-17.
The errors in this case are clear and obvious. The probation
office applied the wrong section of the guidelines in assigning the
base offense level for the money-laundering count. PSR, ¶ 42. The
PSR also misapplied the grouping provision of § 3D1.4 in
calculating Franks's combined offense level. Id. at
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¶¶ 53-55. The district court adopted the PSR's application of the
guidelines without correction.
Furthermore, without explanation, the PSR used the 1992
edition of the guidelines, even though Franks was sentenced on
April 28, 1994, while the 1993 edition was applicable. See R. 2,
36; PSR ¶ 29; 18 U.S.C. § 3553(a)(4); § 1B1.11(a), p.s. (Nov.
1993). The discrepancy is not significant, however, because the
sections of the guidelines used in sentencing Franks did not change
between 1992 and 1993.
Section 2S1.1(a) states that for a money-laundering offense,
23 shall be the base offense level for a defendant convicted under
18 U.S.C. § 1956(a)(1)(A), (a)(2)(A), or (a)(3)(A).
§ 2S1.1(a). For any other violation of § 1956, the base offense
level is 20. Id. Franks pleaded guilty in Count Three to a
violation of § 1956(a)(1)(B), thereby warranting an offense level
of 20. § 2S1.1(a). In applying § 2S1.1(a) to its calculation of
Franks's offense level, however, the probation office instead used
a violation of "§ 1956(a)(1)" and recommended an offense level of
23. PSR ¶ 42. Franks does not contest a three-level increase for
his knowledge that the funds were the proceeds of an unlawful
activity involving the manufacture of controlled substances, nor
does he contest a four-level increase for his leadership role in
the offense. He simply contends that his total offense level on
Count Three should have been 27, instead of 30.
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The probation office also clearly misapplied § 3D1.4 in its
calculation of Franks's combined offense level. Section 3D1.4
provides the method for determining the combined offense level for
multiple counts involving different groups. The guidelines direct
the district court to determine the offense level for the group
having the highest offense level and to increase that level in some
instances depending upon the offense level of the other nonrelated
groups involved. § 3D1.4.
The money-laundering charge produced the highest offense level
of the three charges to which Franks pleaded guilty. The correct
base offense level for the money-laundering offense was 20. See §
2S1.1(a)(2). Adding the undisputed four-level increase for
Franks's leadership role and the three-level increase for his
knowledge that the funds were the proceeds of the unlawful
manufacture of controlled substances, Franks's total offense level
on the money-laundering count should have been 27. The offense
level on both the possession-with-intent-to- distribute count and
the felon-in-possession-of-a firearm count was 16, which is eleven
levels less than the total offense level of 27 for the money-
laundering count. PSR ¶¶ 35, 41. Section 3D1.4 directs the court
to "[d]isregard any Group that is 9 or more levels less serious
than the Group with the highest offense level. Such Groups will
not increase the applicable offense level but may provide a reason
for sentencing at the higher end of the sentencing range for the
applicable offense level." § 3D1.4(c). Because the offense levels
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on Franks's other two counts were more than nine levels less
serious than on the money-laundering count, the guidelines dictate
no increase in his combined offense level. See id. The PSR was
therefore in error in increasing Franks's combined offense level by
increasing by one unit under § 3D1.4(a). See PSR ¶¶ 49-55.

Absent these two errors, Franks's total offense level would
have been 27 instead of 31, substantially affecting Franks's
sentence. Combining a total offense level of 27 instead of 31,
with his criminal history category of IV, the applicable guidelines
range would have been 100-125 months instead of 151-188 months.
Ch.5, Pt.A, Sentencing Table. Franks thus seems to have received
a prison sentence at least 63 months longer than he could have
received had the PSR been correct. See id. Because Franks
erroneously and mistakenly received a substantially longer sentence
under the guidelines than he should have received, the fairness and
integrity of the judicial proceeding was seriously affected. See
Atkinson, 297 U.S. at 160. The prerequisites to the exercise of
this Court's discretion under the plain-error standard therefore
have been satisfied. See Rodriguez, 15 F.3d at 415-16.
Furthermore, the government concedes that the PSR was in error,
that the district court erred in adopting the PSR, and that the
case should be "remanded to the district court for resentencing at
the correct combined offense level." We will therefore recognize
plain error on this point and remand case for resentencing in the
light of the error discussed above.
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II
Franks also argues that the district court erred in refusing
to reduce his offense level by three for acceptance of
responsibility. The sentencing judge is in a unique position to
evaluate a defendant's acceptance of responsibility, and that
determination must be afforded "great deference" on review.
§ 3E1.1, comment. (n.5). We have applied various standards:
(1) "clearly erroneous," (2) "without foundation," and (3) "great
deference." U.S. v. Cartwright, 6 F.3d 294, 304 (5th Cir. 1993)
(citations omitted), cert. denied, 1994 WL 397134 (Dec. 12, 1994).
Although the Court has not "ultimately defined what standard
applies in reviewing a district court's refusal to credit
acceptance of responsibility . . . [t]here appears to be no
practical difference between the three standards." Id.
One factor the guidelines direct a sentencing court to
consider in determining whether to reduce a defendant's offense
level for acceptance of responsibility is whether the defendant
withdrew from criminal conduct after being charged in the pending
offense. § 3E1.1, comment. (n.1(b)). Approximately one year after
Franks was released on bond pending the disposition of this case,
U.S. Marshals went to Franks's home in search of his son. After
obtaining consent to search the home, they found evidence that
suggested Franks had continued to engage in unlawful conduct while
free on bond. PSR, ¶ 27. Specifically, the marshals found a large
quantity of ammunition as well as a small amount of marijuana in
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Franks's house. The district court adopted the PSR's conclusion
that this indicated that Franks had not voluntarily withdrawn from
criminal conduct. The court therefore adopted the PSR's
recommendation that Franks did not merit the three-level reduction.
Franks has failed to show that the district court's determination
was either clearly erroneous or without foundation.
Franks also contends that the district court erred in denying
the government's § 5K1.1 motion to reduce his sentence. A district
court is not required to depart downward because the government
files a § 5K1.1 motion. U.S. v. Damer, 910 F.2d 1239, 1240-41 (5th
Cir.), cert. denied, 498 U.S. 991 (1990). "[T]he language of
5K1.1 is replete with permissive rather than mandatory language."
Id. at 1240. Section 5K1.1 states:
Upon motion of the government stating that the
defendant has provided substantial assistance in
the investigation or prosecution of another person
who has committed an offense, the court may depart
from the guidelines.
(Emphasis added).
The decision whether to grant a § 5K1.1 motion is committed to
the discretion of the sentencing court. U.S. v. Miro, 29 F.3d 194,
198 (5th Cir. 1994). So long as the district court does not
violate any law in refusing to depart downwardly, this court will
affirm the sentencing court's determination. Id. at 199. Based on
Franks's past record and on the aforementioned discovery of
ammunition and marijuana at Franks's house subsequent to the
pending charges, the district court denied the motion. The
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district court neither violated the law nor abused its discretion
in refusing to grant the government's § 5K1.1 motion for departure.
See Miro, 29 F.3d at 198-99; Damer, 910 F.2d at 1241.
III
In conclusion, we hold that the district court's
determinations denying reductions in Franks's sentence based on
acceptance of responsibility and on the government's § 5K1.1 motion
were neither clearly erroneous nor an abuse of discretion,
respectively. Because, however, the court's incorrect application
of guidelines provisions in calculating Franks's offense level
resulted in plain error that must be corrected, the case is
remanded for resentencing so that the court may impose a sentence
in accordance with the appropriate guidelines provisions and not
inconsistent with this opinion.
AFFIRMED in part, REVERSED in part and REMANDED.
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