Opinion
No. 20-10107
05-21-2021
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARIO WEICKS, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. Nos. 2:05-cr-00040-KJD-RJJ-1 2:13-cv-00539-KJD MEMORANDUM Appeal from the United States District Court for the District of Nevada
Kent J. Dawson, District Judge, Presiding Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Mario Weicks appeals from the district court's amended judgment and challenges the 270-month sentence imposed upon resentencing. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Weicks was originally convicted of possessing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c), and received a mandatory, consecutive 60-month term of imprisonment for this conviction. Weicks challenged the constitutionality of that conviction in his 28 U.S.C. § 2255 motion, which the district court denied. In light of the Supreme Court's intervening decision of United States v. Davis, 139 S. Ct. 2319 (2019), we vacated the district court's order insofar as it denied Weicks's § 924(c) claim, and remanded for resentencing. On remand, the district court vacated the 60-month consecutive sentence imposed on Weicks's now-invalid § 924(c) conviction, and left the 270-month sentence on the remaining convictions intact.
On appeal, Weicks contends that the district court should have recalculated the Guidelines range without an undue influence enhancement under U.S.S.G. § 2G1.3(b)(2)(B) and grouped the felon in possession count with one of the prostitution-related counts. When a § 2255 movant successfully challenges one out of multiple counts of conviction, the district court has discretion to either conduct a full resentencing or correct the sentence only as to the vacated count. See Troiano v. United States, 918 F.3d 1082, 1086-87 (9th Cir. 2019). On the record before us, we conclude that the district court did not abuse its discretion by simply excising the 60-month sentence for the vacated § 924(c) conviction. See id.
AFFIRMED.