U.S. v. Holt

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Rick HOLT, II, aka Rick…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jun 5, 2001

10 F. App'x 637 (9th Cir. 2001)

Opinion

10 Fed.Appx. 637 (9th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Rick HOLT, II, aka Rick Holt, Jr., Defendant-Appellant. No. 00-10192. D.C. No. CR-97-00121-RCB. United States Court of Appeals, Ninth Circuit. June 5, 2001

Submitted May 16, 2001. ^*

* The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

After defendant violated the conditions of his supervised release, the United States District Court for the District of Arizona, Robert C. Broomfield, J., imposed a consecutive sentence. Defendant appealed. The Court of Appeals held that district court should have indicated that it was exercising its discretion, rather than following a mandatory requirement, in imposing consecutive sentence.

Vacated and remanded.

Appeal from the United States District Court for the District of Arizona, Robert C. Broomfield, District Judge, Presiding.

Before HUG and T.G. NELSON, Circuit Judges, and SHADUR, ^** District Judge.

** Honorable Milton I. Shadur, Senior United States District Judge for the Northern District of Illinois, sitting by designation.

MEMORANDUM ^***

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

Appellant Holt argues that the district court erred in imposing a consecutive sentence for his violation of the conditions of his supervised release. Holt contends that the district court erred by considering U.S. S.G. § 7B1.3 to be mandatory. Holt's contention stems mainly from the confusion created by the probation officer and Hurt's trial counsel, both of whom incorrectly stated to the district court that it was mandatory under § 7B1.3 that Holt's sentence be consecutive. In fact, that section is not mandatory. The provisions of Chapter 7 of the Guidelines Manual are advisory "policy statements" as opposed to mandatory "guidelines." U.S. S.G. Ch. 7 part A(3)(a); see United States v. George, 184 F.3d 1119, 1121 (9th Cir.1999).

Although the district court did nothing to indicate that it shared in the probation officer's and defense counsel's mistaken belief as to the true authority of Chapter 7's provisions, it did not indicate that it was exercising its discretion rather than following a mandatory requirement. Accordingly, Holt's sentence is VACATED and this case is REMANDED for the district

Page 638.

court to expressly exercise its discretion to choose between a concurrent and a consecutive sentence. See 18 U.S.C. § 3584(a) and § 3553(a).