UNITED STATES v. SMALL (2020)

United States Court of Appeals, Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Mervin Leroy SMALL, Defendant-Appellant.

No. 20-30089

Decided: October 29, 2020

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges. Lori Anne Harper Suek, Assistant U.S. Attorney, Leif Johnson, Assistant U.S. Attorney, Office of the US Attorney, Billings, MT, for Plaintiff-Appellee Steven C. Babcock, Assistant Federal Public Defender, FDMT - Federal Defenders of Montana, Billings, MT, for Defendant-Appellant

MEMORANDUM **

Mervin Leroy Small appeals from the district court's judgment and challenges the nine-month sentence imposed upon revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.

Small contends, and the government concedes, that the district court miscalculated the applicable Guidelines range. We agree. Because Small admitted only to Grade C violations, the correct range was 3 to 9 months, rather than the range of 24 to 30 months that the district court cited at sentencing. See U.S.S.G. § 7B1.4(a). This error is plain and it requires remand for resentencing because there is a reasonable probability that the district court would have imposed a shorter sentence had it used the correctly calculated range as its starting point. See Rosales-Mireles v. United States, ––– U.S. ––––, 138 S. Ct. 1897, 1907-09, 201 L.Ed.2d 376 (2018) (an error resulting in a higher range than the Guidelines provide most often is sufficient to show an effect on defendant's substantial rights and an adverse impact on the fairness, integrity, and public reputation of judicial proceedings).

VACATED and REMANDED for resentencing.