United States v. Christopher Myers

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 22, 2019
• Docket: 17-30159
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 22 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30159

Plaintiff-Appellee, D.C. No. 2:15-cr-00045-JLQ-1 v.

CHRISTOPHER RAY MYERS, AKA MEMORANDUM* Christopher Myers,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Justin L. Quackenbush, District Judge, Presiding

Argued and Submitted February 6, 2019 Seattle, Washington

Before: IKUTA and CHRISTEN, Circuit Judges, and CHOE-GROVES,** Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. Christopher Myers appeals his sentence for unlawfully possessing a firearm

in violation of 18 U.S.C. § 922(g). We have jurisdiction under 28 U.S.C. § 1291.1

In sentencing Myers to 77 months’ imprisonment consecutive to his state

sentence of 63 months, the district court did not acknowledge the applicability of

§ 5G1.3(b)(2) of the U.S. Sentencing Guidelines, which provides that when both

the federal and state sentences arise from the same “relevant conduct,” the federal

sentence “shall be imposed to run concurrently to the remainder of the

undischarged term of imprisonment.” U.S.S.G. § 5G1.3(b)(2). Because the district

court did not provide any reason for varying from § 5G1.3(b)(2) of the Guidelines

in imposing a consecutive sentence, we vacate the district court’s sentencing order

and remand for the district court to reconsider Myers’s sentence in light of that

section. See Rosales-Mireles v. United States, 138 S. Ct. 1897, 1911 (2018);

United States v. Armstead, 552 F.3d 769, 784 (9th Cir. 2008).

In ruling that Washington Second Degree Assault, Wash. Rev. Code

§ 9A.36.021, is a “crime of violence” under § 4B1.2(a) of the Guidelines, the

district court did not have the benefit of Stokeling v. United States, 139 S. Ct. 544

1 In a published opinion filed concurrently with this memorandum disposition, we vacate the district court’s denial of Myers’s Sixth Amendment speedy trial claim and remand for further proceedings consistent with that opinion. United States v. Myers, __ F.3d ___ (9th Cir. 2019). 2 (2019), United States v. Vederoff, 914 F.3d 1238 (9th Cir. 2019), or United States

v. Robinson, 869 F.3d 933 (9th Cir. 2017). We remand to the district court to

reconsider this issue in light of this new case law.

VACATED AND REMANDED.