United States v. Powell

163 F. App'x 616

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 19, 2006
• Docket: No. 04-35667
• Status: Published

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.

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.