United States v. Leon Brady

928 F.2d 844 59 USLW 2607 , 4 Fed.Sent.R. 197 UNITED STATES of America, Plaintiff-Appellee, v. Leon BRADY, Defendant-Appellant. No. 89-30074. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 6, 1989. Decided March 18, 1991. Vernon E. Woodward, Billings, Mont., for defendant-appellant. Klaus P. Richter, Asst. U.S. Atty., Billings, Mont., for plaintiff-appellee. Appeal from the United States District Court for the District of Montana. Before WALLACE, Chief Judge, PREGERSON and D.W. NELSON, Circuit Judges. PREGERSON, Circuit Judge: 1 Leon Brady was convicted of voluntary manslaughter and assault with a dangerous weapon. He appeals the legality of his sentence, contending that its terms impermissibly depart from the Federal Sentencing Guidelines. We conclude that the sentence imposed is incompatible with the Guidelines. We therefore vacate the sentence and remand this matter for further proceedings consistent with this opinion. BACKGROUND 2 Charles Brady, an enrolled member of the Northern Cheyenne Indian Tribe, was indicted in July 1988 for first degree murder and assault with intent to commit murder of two other tribal members on the Northern Cheyenne Indian…

Leon Brady was convicted of voluntary manslaughter and assault with a dangerous weapon. He appeals the legality of his sentence, contending that its terms imper-missibly depart from the Federal Sentencing Guidelines. We conclude that the sentence imposed is incompatible with the Guidelines. We therefore vacate the sentence and remand this matter for further proceedings consistent with this opinion.

BACKGROUND

Charles Brady, an enrolled member of the Northern Cheyenne Indian Tribe, was indicted in July 1988 for first degree murder and assault with intent to commit murder of two other tribal members on the Northern Cheyenne Indian Reservation. Following trial, the jury convicted Brady not on these charged counts, but on the lesser included offenses of voluntary man *846 slaughter and assault with a dangerous weapon.

In February 1989, the U.S. Probation Officer submitted to the court the required presentence report. The report calculated the total offense level at 24 (including a two-level reduction in offense severity because Brady accepted responsibility for the offenses). The report also set Brady’s criminal history category at “I.” 1 Under these calculations, the applicable…

concurring in part and dissenting in part:

I agree with the majority that we must vacate the sentence and remand the case. The district judge failed to give notice of his intent to depart from the Sentencing Guidelines as required by United States v. Nuno-Para, 877 F.2d 1409, 1415 (9th Cir.1989). However, because we have vacated the sentence on this basis, we need not decide any other issues raised on this appeal. Brady’s allegations of error should be considered in the first instance by the district judge, who will now have the benefit of briefing and argument by both parties. Therefore, I write separately.

Instead of simply vacating the sentence and remanding the case, the majority rules *855 on all of the district judge’s future sentencing decisions. These rulings are premature. The sentence has been vacated, and thus the district judge’s denial of the sentence reduction for acceptance of responsibility, his decision to sentence consecutively, and his grounds for departure from the Sentencing Guidelines need not be decided. With notice and the presentations by counsel, he may well enter a different sentence. By ruling on a sentence that has not yet been imposed, the majority…