Summary
In Roberty, "[t]he government conceded that Amendment 801 to U.S. Sentencing Guidelines § 2G2.2(b)(3)(F) was a retroactive, clarifying amendment," and "the district court erred in calculating Roberty's guidelines range by applying the section and increasing his offense level by two."
Summary of this case from Fernandez-Perez v. United StatesOpinion
No. 15-30338
04-20-2017
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY DANE ROBERTY, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 2:15-cr-00016-DLC-1 MEMORANDUM Appeal from the United States District Court for the District of Montana
Dana L. Christensen, Chief Judge, Presiding Submitted April 4, 2017 Seattle, Washington Before: KOZINSKI and W. FLETCHER, Circuit Judges, and TUNHEIM, Chief District Judge.
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).
The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. --------
The government conceded that Amendment 801 to U.S. Sentencing Guidelines § 2G2.2(b)(3)(F) was a retroactive, clarifying amendment. Thus, we treat the amendment as retroactively applying to Roberty. See United States v. Morgan, 376 F.3d 1002, 1010-11 (9th Cir. 2004).
The government also conceded that the district court erred in calculating Roberty's guidelines range by applying the section and increasing his offense level by two. The error was not harmless. "A mistake in calculating the recommended Guidelines sentencing range is a significant procedural error that requires us to remand for resentencing." United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011) (citations omitted). Under the amended guidelines section, Roberty does not qualify for the two-level increase in § 2G2.2(b)(3)(F). Roberty is also potentially eligible for an additional two-level decrease. See U.S.S.G. § 2G2.2(b)(1). These changes would give Roberty a different guidelines range that does not substantially overlap with the range the district court calculated. Therefore, we must vacate Roberty's sentence and remand to the district court for resentencing.
VACATED AND REMANDED.