FILED

NOT FOR PUBLICATION

JUL 23 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-30175

Plaintiff-Appellee, DC No. CR 11-0027 TMB

v.

MEMORANDUM*

SYNDA L. COLLINS,

Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding

Submitted June 13, 2019** Anchorage, Alaska

Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

Defendant-Appellant Synda Collins appeals the statutory maximum sentence

imposed by the district court upon revocation of her supervised release. She

argues that the district court erred by focusing primarily on the seriousness of her

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). new criminal offense as a primary factor in determining her revocation sentence, in

contravention of Ninth Circuit precedent. We have jurisdiction under 28 U.S.C. §

1291, and because Collins did not raise this objection during the revocation hearing

before the district court, we review for plain error. United States v. Hammons, 558

F.3d 1100, 1103 (9th Cir. 2009); Fed. R. Crim. P. 52(b). Plain error is: “(1) error,

(2) that is plain, and (3) affects substantial rights.” United States v. Ameline, 409

F.3d 1073, 1078 (9th Cir. 2005) (en banc). If those conditions are met, then we

may exercise our discretion to correct the error if it “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. Because we agree with

Collins that the district court plainly erred, we reverse and remand for

resentencing.

A district court may not rely upon the seriousness of the new criminal

offense underlying revocation of supervised release as a primary justification for

imposing a particular revocation sentence. See United States v. Simtob, 485 F.3d

1058, 1063 (9th Cir. 2007); United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir.

2006); see also 18 U.S.C. §§ 3553(a)(2)(A), 3583(e). In this case, the district

judge’s sentencing remarks make clear that the district court did just that in

determining Collins’ sentence upon revocation of her supervised release. The

district court began its sentencing remarks by incorrectly stating that it needed to

2 consider the factors in § 3553(a), including “the need for the sentence to reflect the

seriousness of the offense.” The district court later explicitly addressed “[t]he

seriousness of the offense,” discussing at length the offense’s impact on the victim

and his family in order to emphasize “how serious this offense was.”1 The district

court’s focus on this factor, and suggestion that this factor was “critically

important,” demonstrate that the district court relied on the seriousness of Collins’

new offense as a primary consideration in fashioning Collins’ revocation sentence;

doing so was error that was plain.

This plain error affected Collins’s substantial rights and the fairness of her

proceedings because there is a “reasonable probability” that the district court

would have imposed a different sentence had it not impermissibly considered the

seriousness of the offense. See United States v. Vargem, 747 F.3d 724, 728–729

(9th Cir. 2014) (noting that sentencing error that “potentially result[ed] in the

imposition of a greater sentence . . . affects the defendant’s substantial rights and

the fairness of the judicial proceedings,” and therefore “satisfie[s]” the “third and

1 The district court’s repeated references to the “seriousness of the offense” and emphasis on the lasting impacts of the accident rather than on Collins’ own actions show that the court impermissibly considered the seriousness of the offense as its own stand-alone factor, rather than merely as part of Collins’ criminal history or as part of determining the severity of Collins’ breach of the court’s trust. See Simtob, 485 F.3d at 1062–63. 3 fourth prongs of the plain-error test” (internal quotation marks omitted)); see also

United States v. Tapia, 665 F.3d 1059, 1062–63 (9th Cir. 2011). Because we

exercise our discretion to correct the district court’s plainly erroneous reliance

upon the seriousness of Collins’ new offense, we need not reach Collins’ argument

that the sentence imposed was substantively unreasonable.

REVERSED and REMANDED for resentencing.

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