United States v. Dewayne Donelson

FILED
NOT FOR PUBLICATION SEP 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50020
Plaintiff - Appellant, D.C. No. 09-cr-00502-ODW
v.
MEMORANDUM *
DEWAYNE DONELSON,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
The United States of America appeals from the 24-month sentence imposed
on Dewayne Donelson following his guilty-plea conviction for distribution of at
least five grams of cocaine in the form of crack cocaine, in violation of 21 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 841(a)(1), (b)(1)(B)(iii). We have jurisdiction under 28 U.S.C. § 1291. We
vacate and remand for re-sentencing.
The government contends that the district court erred when it imposed a
sentence below the statutory mandatory minimum after considering disparities in
sentences for offenses involving crack and powder cocaine. “Congress intended
not to disturb statutory minimums through the application of the [18 U.S.C.]
§ 3553(a) factors.” See United States v. Wipf, No. 09-50291, 2010 U.S. App.
LEXIS 18167, at *7 (August 31, 2010). Because the district court based the
sentence on a factor set forth in 18 U.S.C. § 3553(a), rather than subsections (e) or
(f), we vacate and remand for re-sentencing.
VACATED and REMANDED.
2 10-50020