United States v. McCahill

46 F. App'x 558

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 19, 2002
• Docket: No. 02-10045; D.C. No. CR-99-00213-PGR
• Status: Published

Opinion

MEMORANDUM

**

James Robert McCahill appeals his 15-month sentence imposed following his guilty plea conviction for two counts of attempted tax evasion, in violation of 26 U.S.C. § 7201. We review de novo a district court’s determination that it lacked discretion to depart. United States v. Tucker, 133 F.3d 1208, 1214 (9th Cir.1998). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we vacate and remand.

McCahill contends, and the government agrees, that the district court failed to recognize that it had the discretion under the sentencing guidelines to depart downward six months to allow the sentence in this matter to run fully concurrent with an undischarged federal sentence. We agree, and conclude that the district court did have that authority. See United States v. Kimble, 107 F.3d 712, 715 (9th Cir.1997) (stating that under U.S.S.G. § 5G1.3(c), a district court can impose a sentence “concurrent with or without credit for time served”); United States v. Sanchez-Rodriguez, 161 F.3d 556, 563-64 (9th Cir.1998) (en banc) (concluding that, under U.S.S.G. § 5K2.0, a district court can depart based on the lost opportunity to serve a greater portion of a state sentence concurrently with a federal sentence).

Accordingly, we vacate and remand to allow the district court to consider exercising its discretion to depart downward.

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.