United States v. Charles Poor Thunder

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-1142
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Charles W. Poor Thunder, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: June 7, 2000
Filed: June 9, 2000
___________
Before RICHARD S. ARNOLD, BOWMAN, and BEAM, Circuit Judges.
___________
PER CURIAM.
Charles W. Poor Thunder, who originally pleaded guilty to conspiring to
distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1994),
appeals the 48-month prison sentence he received upon revocation of his supervised
release, arguing that imposition of this sentence was plain error. The government
concurs, and advises that Poor Thunder’s original offense of conviction--carrying a
maximum prison term of 40 years, see 21 U.S.C. § 841(b)(1)(B) (Supp. IV 1998)--
constituted a Class B felony, see 18 U.S.C. § 3559(a)(2) (1994). We agree with the
parties that this case should be remanded for resentencing. See 18 U.S.C. § 3583(e)(3)
(1994) (authorizing up to three years imprisonment upon revocation of supervised
release if offense that resulted in term of supervised release was class B felony); cf.
United States v. Guzman-Bruno, 27 F.3d 420, 423 (9th Cir.) (vacating sentence as plain
error, and remanding to district court for limited purpose of setting term of supervised
release within statutorily-permitted range), cert. denied, 513 U.S. 975 (1994).
Accordingly, we vacate the sentence and remand for resentencing.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2-