Opinion
No. 07-30057.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed January 24, 2008.
Thomas O. Rice, Esq., USSP-Office of the U.S. Attorney, Spokane, WA, for Plaintiff-Appellee.
Allen R. Bentley, Esq., Seattle, WA, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Washington, Ricardo S. Martinez, District Judge, Presiding. D.C. No. CR-06-00074-001-RSM.
Before: HALL, O'SCANNLAIN, and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
James Henderson appeals from the 74-month sentence imposed following his guilty-plea conviction for bank fraud, in violation of 18 U.S.C. § 1344, and aggravated identity theft, in violation of 18 U.S.C. § 1028A. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand.
Henderson contends that the district court abused its discretion by applying a two-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(2)(A), because the offense involved ten or more victims. We agree. The plain language of the commentary to § 2B1.1 precludes counting an individual as a victim where, as here, that individual suffered no monetary loss. See U.S.S.G. § 2B1.1, cmt. n. 1, 3(A)(i), 3(A)(iii); Stinson v. United States, 508 U.S. 36, 44, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (explaining that commentary provides authoritative interpretation as to meaning of Sentencing Guidelines). Because the district court erred in calculating the applicable advisory Guidelines range, we vacate and remand for resentencing. See United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir. 2006).
Because we are remanding, we need not consider Henderson's ineffective assistance of counsel claim.