United States of America v. Synda L. Collins

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SYNDA L. COLLINS,
Defendant-Appellant.
No. 18-30175
DC No. CR 11-0027 TMB
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Submitted June 13, 2019**
Anchorage, Alaska
Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.
Defendant-Appellant Synda Collins appeals the statutory maximum sentence
imposed by the district court upon revocation of her supervised release. She
argues that the district court erred by focusing primarily on the seriousness of her
FILED
JUL 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).

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new criminal offense as a primary factor in determining her revocation sentence, in
contravention of Ninth Circuit precedent. We have jurisdiction under 28 U.S.C. §
1291, and because Collins did not raise this objection during the revocation hearing
before the district court, we review for plain error. United States v. Hammons, 558
F.3d 1100, 1103 (9th Cir. 2009); Fed. R. Crim. P. 52(b). Plain error is: “(1) error,
(2) that is plain, and (3) affects substantial rights.” United States v. Ameline, 409
F.3d 1073, 1078 (9th Cir. 2005) (en banc). If those conditions are met, then we
may exercise our discretion to correct the error if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. Because we agree with
Collins that the district court plainly erred, we reverse and remand for
resentencing.
A district court may not rely upon the seriousness of the new criminal
offense underlying revocation of supervised release as a primary justification for
imposing a particular revocation sentence. See United States v. Simtob, 485 F.3d
1058, 1063 (9th Cir. 2007); United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir.
2006); see also 18 U.S.C. §§ 3553(a)(2)(A), 3583(e). In this case, the district
judge’s sentencing remarks make clear that the district court did just that in
determining Collins’ sentence upon revocation of her supervised release. The
district court began its sentencing remarks by incorrectly stating that it needed to
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consider the factors in § 3553(a), including “the need for the sentence to reflect the
seriousness of the offense.” The district court later explicitly addressed “[t]he
seriousness of the offense,” discussing at length the offense’s impact on the victim
and his family in order to emphasize “how serious this offense was.”1 The district
court’s focus on this factor, and suggestion that this factor was “critically
important,” demonstrate that the district court relied on the seriousness of Collins’
new offense as a primary consideration in fashioning Collins’ revocation sentence;
doing so was error that was plain.
This plain error affected Collins’s substantial rights and the fairness of her
proceedings because there is a “reasonable probability” that the district court
would have imposed a different sentence had it not impermissibly considered the
seriousness of the offense. See United States v. Vargem, 747 F.3d 724, 728–729
(9th Cir. 2014) (noting that sentencing error that “potentially result[ed] in the
imposition of a greater sentence . . . affects the defendant’s substantial rights and
the fairness of the judicial proceedings,” and therefore “satisfie[s]” the “third and
1 The district court’s repeated references to the “seriousness of the
offense” and emphasis on the lasting impacts of the accident rather than on
Collins’ own actions show that the court impermissibly considered the seriousness
of the offense as its own stand-alone factor, rather than merely as part of Collins’
criminal history or as part of determining the severity of Collins’ breach of the
court’s trust. See Simtob, 485 F.3d at 1062–63.
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fourth prongs of the plain-error test” (internal quotation marks omitted)); see also
United States v. Tapia, 665 F.3d 1059, 1062–63 (9th Cir. 2011). Because we
exercise our discretion to correct the district court’s plainly erroneous reliance
upon the seriousness of Collins’ new offense, we need not reach Collins’ argument
that the sentence imposed was substantively unreasonable.
REVERSED and REMANDED for resentencing.
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