United States v. Kovac

46 F. App'x 517

Opinion

MEMORANDUM **

John Gilbert Kovac appeals his 170-month sentence imposed after his guilty-plea conviction to one count of bank robbery, in violation of 18 U.S.C. § 2113(a). We have jurisdiction pursuant 28 U.S.C. § 1291, and we vacate and remand.

Kovac contends that the district court erred in finding that he was a career offender under U.S.S.G. § 4B1.1 because it relied on a presentence investigation report (“PSR”) without a statutory reference to determine that he had a prior qualifying “controlled substance” felony.

We conclude, and the government concedes, that Kovac is correct. See United States v. Franklin, 235 F.3d 1165, 1172-73 (9th Cir.2000) (deciding that the PSR, which did not indicate statute of conviction, was insufficient to enhance a sentence under the Armed Career Criminal Act (ACCA)); United States v. Sandovalr-Venegas, 292 F.3d 1101, 1109 (9th Cir. 2002) (remanding for resentencing after finding that “the record [did] not contain sufficient documentation to discern a qualifying statute of conviction, much less judicially noticeable, case-specific facts.”).

Accordingly, we vacate Kovac’s sentence and remand this case on an open record to permit the district court to determine whether Kovac’s prior “controlled substance” is a qualifying felony under § 4B1.1. See United States v. Matthews, 278 F.3d 880, 885 (9th Cir.2002) (en banc) (stating that “if a district court errs in sentencing, [this court] will remand for resentencing on an open record that is, without limitation on the evidence that the district court may consider.”).

VACATED AND REMANDED.

Footnotes

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.