United States v. Ingreat Swift

FILED
NOT FOR PUBLICATION FEB 28 2011
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. 10-10091
Plaintiff - Appellee, D.C. No. 2:08-cr-00329-JCM
v.
MEMORANDUM *
INGREAT NORRIS SWIFT, a.k.a. Norris
Ingreat Swift,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Ingreat Norris Swift appeals from the conviction and 92-month sentence
imposed following his guilty-plea to interstate transportation with intent to engage
in criminal sexual activity (prostitution), in violation of 18 U.S.C. § 2421. We
*
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).
have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, vacate in part, and
remand for resentencing.
Swift correctly asserts that the district court procedurally erred by
incorrectly calculating the applicable Guidelines range. See United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008) (en banc); see also United States v. Takahashi,
205 F.3d 1161, 1167 (9th Cir. 2000); U.S.S.G. § 1B1.2, cmt., n.1. (2009). The
most appropriate offense guideline for the conviction at issue is U.S.S.G. § 2G1.1;
therefore it was error for the district court to rely on § 2G1.3 in calculating Swift’s
base offense level. We vacate Swift’s sentence and remand for resentencing
consistent with this opinion.
Swift also contends that the district court erred by refusing to consider his
motion to withdraw his guilty plea, and by denying his motion to continue the
sentencing hearing to allow him to brief the issue. The district court did not abuse
its discretion by ruling that Swift’s unsupported claim of innocence was not a fair
and just reason to withdraw his guilty plea. See United States v. Turner, 898 F.2d
705, 713 (9th Cir. 1990). Accordingly, the conviction is affirmed. In light of the
foregoing disposition, the district court’s denial of a continuance is moot.
AFFIRMED in part; VACATED in part; and REMANDED for
RESENTENCING.
2 10-10091