United States v. 2020-10-29 | 20-30089 | USA V. MERVIN SMALL | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MERVIN LEROY SMALL,

Defendant-Appellant.

No. 20-30089

D.C. No. 1:07-cr-00132-SPW-1

MEMORANDUM
*

Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding

Submitted October 26, 2020
**

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.

Mervin Leroy Small appeals from the district court’s judgment and
challenges the nine-month sentence imposed upon revocation of supervised
release. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand
for resentencing.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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

OCT 29 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 20-30089
Small contends, and the government concedes, that the district court
miscalculated the applicable Guidelines range. We agree. Because Small admitted
only to Grade C violations, the correct range was 3 to 9 months, rather than the
range of 24 to 30 months that the district court cited at sentencing. See U.S.S.G.
§ 7B1.4(a). This error is plain and it requires remand for resentencing because
there is a reasonable probability that the district court would have imposed a
shorter sentence had it used the correctly calculated range as its starting point. See
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907-09 (2018) (an error
resulting in a higher range than the Guidelines provide most often is sufficient to
show an effect on defendant’s substantial rights and an adverse impact on the
fairness, integrity, and public reputation of judicial proceedings).
VACATED and REMANDED for resentencing.