United States v. Powell

163 F. App'x 616

Opinion

MEMORANDUM**

Larry Allen Powell appeals pro se from the district court’s denial of his 28 U.S.C. § 2255 motion seeking to vacate his 41-month sentence for being a felon in possession of ammunition. We have jurisdiction under 28 U.S.C. § 2253, and we vacate and remand.

Powell contends, and the government concedes, that the district court erred at sentencing by using U.S.S.G § 4A1.3 to increase Powell’s offense level. We agree. See United States v. Martin, 278 F.3d 988, 1002-03 (9th Cir.2002) (“[ojffense-level departures to reflect an underrepresented criminal history are erroneous”). We therefore vacate the district court’s judgment and remand for the district court to grant the § 2255 motion and resentence Powell.

To the extent that Powell’s brief raises uncertified issues, we construe his contentions as a motion to expand the Certificate of Appealability, and we deny the motion. See 9th Cir. R. 22-l(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).

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 9th Cir. R. 36-3.