Opinion
No. 05-10545.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed October 1, 2007.
Thomas E. Flynn, Esq., Office of the U.S. Attorney, Sacramento, CA, for Plaintiff-Appellee.
Amber Latrease Mitchell, Sacramento, CA, pro se.
John P. Balazs, Esq., Law Offices of John P. Balazs, Sacramento, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California, Edward J. Garcia, Senior District Judge, Presiding. D.C. No. CR-04-00006-EJG.
Before: CANBY, TASHIMA, and RAWLINSON, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provid ed by 9th Cir. R. 36-3.
Amber Latrease Mitchell appeals from the 63-month sentence imposed following her jury-trial conviction for aiding and abetting, and the fraudulent use of access devices, in violation of 18 U.S.C. §§ 2 and 1029, respectively. We have jurisdiction under 28 U.S.C. § 1291. We vacate and remand for further proceedings.
We agree with the district court that Mitchell's prolonged credit card fraud was sufficiently more complex than routine credit card fraud to warrant the 2-level upward adjustment for using a sophisticated means. See U.S.S.G. § 2B1.1(b)(9); United States v. Aragbaye, 234 F.3d 1101, 1108 (9th Cir. 2000). In light of the evidence presented at the sentencing hearing, the district court did not err when it applied this adjustment.
The Government concedes that Mitchell's criminal history score was improperly calculated insofar as it was based on relevant conduct, and that this miscalculation amounts to plain error. See U.S.S.G. § 4A1.2, cmt. note 1; cf. United States v. Ladum, 141 F.3d 1328, 1347-48 (9th Cir. 1998); United States v. Martinez-Gonzalez, 962 F.2d 874, 877-78 (9th Cir. 1992). We therefore vacate the sentence and remand for resentencing.