United States v. Allen

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 30, 1999
• Docket: 99-4024
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 30 1999

TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 99-4024 v. (D.C. No. 98-CR-485-W) (Utah) VANCE GARLAND ALLEN,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).

Mr. Vance Garland Allen entered a plea of guilty to possession of a firearm

by a restricted person and now appeals the district court’s application of the

sentencing guidelines. He argues, and the government concedes, that he was

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. incorrectly sentenced as a Criminal History Category IV offender.

We review for plain error calculations based on a presentence report to

which the defendant did not object below. See United States v. Richards, 27 F.3d

465, 468 (10th Cir. 1994). Here, the district court relied on a supplemental PSR

that improperly listed an unverified conviction by stating that “court and police

information have been requested but not received”. Mr. Allen did not see a copy

of the supplemental PSR. The inclusion of the unverified conviction increased

Mr. Allen’s Criminal History Category from III to IV, giving him a sentencing

range of 57-71 months. He was sentenced to the minimum 57 months. If Mr.

Allen had been sentenced as a Category III offender, his sentencing range would

have been 46-57 months and a recommended minimum would have been 46

months, 11 months less than his current sentence. The government concedes the

error and recommends resentencing. We agree the government plainly failed in

its burden to prove the unverified conviction and remand for resentencing.

Mr. Allen offers an alternative argument that the unverified conviction, if

ever verified, should not be included in the calculations because it is part of an

earlier conviction and would result in double counting. We agree with the

government that the record is not sufficient to allow us to address this argument

and we leave it to the district court to further develop the issue.

-2- We REVERSE and REMAND for resentencing.

ENTERED FOR THE COURT

Stephanie K. Seymour Chief Judge

-3-