United States v. Mervin Small

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 29 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30089
Plaintiff-Appellee, D.C. No. 1:07-cr-00132-SPW-1
v.
MEMORANDUM*
MERVIN LEROY SMALL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted October 26, 2020**
Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.
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.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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, 138 S. Ct. 1897, 1907-09 (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.
2 20-30089