United States v. Anthony Roberty

689 F. App'x 492

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 20, 2017
• Docket: 15-30338
• Status: Unpublished

Opinion

MEMORANDUM ***

The government conceded that Amendment 801 to U.S. Sentencing Guidelines § 2G2.2(b)(3)(F) was a retroactive, clarifying amendment. Thus, we treat the amendment as retroactively applying to Roberty. See United States v. Morgan, 376 F.3d 1002, 1010-11 (9th Cir. 2004).

The government also conceded that the district court erred in calculating Rober-tas guidelines range by applying the section and increasing his offense level by two. The error was not harmless. “A mistake in calculating the recommended Guidelines sentencing range is a significant procedural error that requires us to remand for resentencing.” United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011) (citations omitted). Under the amended guidelines section, Roberty does not qualify for the two-level increase in § 2G2.2(b)(3)(F). Roberty is also potentially eligible for an additional two-level decrease. See U.S.S.G. § 2G2.2(b)(l). These changes would give Roberty a different guidelines range that does not substantially overlap with the range the district court calculated. Therefore, we must vacate Ro-bertas sentence and remand to the district court for resentencing.

VACATED AND REMANDED.

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