United States v. Holt

MEMORANDUM ^***

Appellant Holt argues that the district court erred in imposing a consecutive sentence for his violation of the conditions of his supervised release. Holt contends that the district court erred by considering U.S.S.G. § 7B1.3 to be mandatory. Holt’s contention stems mainly from the confusion created by the probation officer and Hurt’s trial counsel, both of whom incorrectly stated to the district court that it was mandatory under § 7B1.3 that Holt’s sentence be consecutive. In fact, that section is not mandatory. The provisions of Chapter 7 of the Guidelines Manual are advisory “policy statements” as opposed to mandatory “guidelines.” U.S.S.G. Ch. 7 part A(3)(a); see United States v. George, 184 F.3d 1119, 1121 (9th Cir.1999).

Although the district court did nothing to indicate that it shared in the probation officer’s and defense counsel’s mistaken belief as to the true authority of Chapter 7’s provisions, it did not indicate that it was exercising its discretion rather than following a mandatory requirement. Accordingly, Holt’s sentence is VACATED and this case is REMANDED for the district court to expressly exercise its discretion to choose between a concurrent and a consecutive sentence. See 18 U.S.C. § 3584(a) and § 3553(a).

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R, 36-3.