United States v. Gregory A. Payton

968 F.2d 22, 1992 U.S. App. LEXIS 25277, 1992 WL 121725

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 5, 1992
• Docket: 90-3301
• Status: Published

Opinion

968 F.2d 22

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee,
v.
Gregory A. PAYTON, Defendant-Appellant.

No. 90-3301.

United States Court of Appeals, Tenth Circuit.

June 5, 1992.

Before JOHN P. MOORE, ENGEL,* and KELLY, Circuit Judges.

ORDER AND JUDGMENT**

JOHN P. MOORE, Circuit Judge.

Gregory A. Payton challenges the sentence imposed after he pled guilty to two counts of a three-count indictment for distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1). Three issues are presented. We reverse and remand on the first two but affirm on the third.

Mr. Payton first contends the trial court erred by adding a point to his criminal history score for a 1983 municipal ordinance violation for which he received a $75 fine. He is correct. United States v. Mondaine, 956 F.2d 939 (10th Cir.1992).

Defendant next contends the district court erred by sentencing him to a four-year term of supervised release. The government concedes this error upon the basis of United States v. Padilla, 947 F.2d 893 (10th Cir.1991), and United States v. Showalter, 933 F.2d 573 (7th Cir.1991), which hold the maximum term of supervised release for a Class C felony is three years.

Finally, defendant urges that the inclusion of twenty-four grams of cocaine to determine his sentence violated his right to due process because he was neither charged nor convicted of the distribution alleged in Count III. We have already held such an inclusion is proper. United States v. Rutter, 897 F.2d 1558 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 88 (1990).

The case is REMANDED for resentencing in accordance with this order and judgment.

* Honorable Albert J. Engel, Circuit Judge for the United States Court of Appeals for the Sixth Circuit, sitting by designation

** This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3