NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 29 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30089

Plaintiff-Appellee, D.C. No. 1:07-cr-00132-SPW-1

v.

MEMORANDUM*

MERVIN LEROY SMALL,

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Submitted October 26, 2020**

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.

Mervin Leroy Small appeals from the district court’s judgment and

challenges the nine-month sentence imposed upon revocation of supervised

release. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand

for resentencing.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Small contends, and the government concedes, that the district court

miscalculated the applicable Guidelines range. We agree. Because Small admitted

only to Grade C violations, the correct range was 3 to 9 months, rather than the

range of 24 to 30 months that the district court cited at sentencing. See U.S.S.G.

§ 7B1.4(a). This error is plain and it requires remand for resentencing because

there is a reasonable probability that the district court would have imposed a

shorter sentence had it used the correctly calculated range as its starting point. See

Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907-09 (2018) (an error

resulting in a higher range than the Guidelines provide most often is sufficient to

show an effect on defendant’s substantial rights and an adverse impact on the

fairness, integrity, and public reputation of judicial proceedings).

VACATED and REMANDED for resentencing.

2 20-30089