United States v. Kovac

46 F. App'x 517

Opinion

MEMORANDUM

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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.

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.