United States v. Albert Hector

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 20, 2019
• Docket: 17-50009
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 20 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50009

Plaintiff-Appellee, D.C. No. 2:16-cr-00486-PA-1

v. MEMORANDUM* ALBERT LAMONT HECTOR, AKA Hector Allen, AKA Cartoon, AKA Lil Cartoon, AKA lilcartoon, AKA Lamont Murkison, AKA Sean Murks,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted June 14, 2019** Pasadena, California

Before: WARDLAW, BYBEE, and MILLER, Circuit Judges.

Following a jury trial, Albert Lamont Hector was convicted on one count of

distribution of cocaine base and one count of possession of cocaine base with

* 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). intent to distribute, both in violation of 21 U.S.C. § 841(a)(1). He was also

convicted on one count of being a felon in possession of a firearm and ammunition,

in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 130 months of

imprisonment on each of the three counts, to be served concurrently. Hector now

appeals his sentence. We have jurisdiction under 18 U.S.C. § 3742(a) and 28

U.S.C. § 1291, and we vacate Hector’s sentences on all counts of conviction and

remand for full resentencing.

Hector’s 130-month term of incarceration on the felon-in-possession count

was unlawful because it exceeded the statutory maximum of 10 years. See 18

U.S.C. § 924(a)(2). Although Hector did not raise that objection in the district

court, the government concedes that the imposition of a sentence in excess of the

statutory maximum is plain error. See United States v. Lomow, 266 F.3d 1013,

1022 (9th Cir. 2001) (subsequent history omitted). We therefore vacate the

sentence imposed for that count.

The parties disagree about how the error on the felon-in-possession count

should affect Hector’s sentencing for the other counts. Hector asks us to vacate his

entire sentence, while the government asks that we vacate only the sentence

imposed for the felon-in-possession count and otherwise affirm.

Under the advisory Sentencing Guidelines, a defendant’s sentence on

multiple counts of conviction “constitute[s] a single ‘package’ reflecting his

2 overall offense conduct rather than separate and independent sentences on each

count,” and thus “the degree to which each offense contributes to the total sentence

is usually affected by the other offenses of conviction.” United States v. Radmall,

340 F.3d 798, 801 (9th Cir. 2003). For that reason, “remand of all sentences is

often warranted” when there is an error with respect to one sentence. United States

v. Evans-Martinez, 611 F.3d 635, 645 (9th Cir. 2010).

To be sure, an error in the sentence on one count does not always require

vacatur of sentences on other counts. In Evans-Martinez, for example, we declined

to vacate one of the defendant’s sentences after identifying error in others. Id. But

in that case, “the statements made by the district court at the sentencing hearing”

established definitively that “the district court would impose the same sentence on

remand.” Id.; see id. at 645 n.16. Here, by contrast, the record does not make clear

whether the error on the felon-in-possession count affected the district court’s

sentencing determination on the other counts. We conclude that the better course is

“to vacate all of the sentences imposed and to authorize the district court to begin

the sentencing process afresh,” thereby allowing the district court to impose the

total punishment that it considers appropriate after correcting the error. United

States v. Handa, 122 F.3d 690, 692 (9th Cir. 1997); see 18 U.S.C. § 3742(f)(1).

Hector raises two other challenges to his sentence: he argues that the district

court erred in imposing an enhancement under Sentencing Guidelines

3 § 2K2.1(b)(6)(B) for possession of a firearm in connection with another felony

offense, and that the district court did not adequately explain its rejection of his

request for a below-Guidelines sentence. Because we remand for a full

resentencing, we do not address those arguments.

VACATED and REMANDED.