United States v. Kelly Michael

MEMORANDUM

Kelly J. Michael appeals from his sentence of 12 months of probation imposed following his guilty-plea conviction for possession of a controlled substance, in violation of 21 U.S.C. § 844 (a). We have jurisdiction under 28 U.S.C. § 1291 , and we vacate and remand for resentencing.

Michael contends that the district court erred by denying his request for pre-judgment probation under 18 U.S.C. § 3607 (a) (allowing for a term of probation and dismissal of the proceedings “before the expiration of the term of probation, if the person has not violated a condition of his probation”). It is undisputed that Michael qualified for pre-judgment probation. The district court denied Michael pre-judgment probation based on the mistaken belief that Michael was required to make the request before sentencing. Accordingly, we vacate and remand for resentencing to determine whether pre-judgment probation should be imposed under section 3607(a). See United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.2009) (en banc) (“[A] district court abuses its discretion when it makes an error of law.”).

VACATED and REMANDED.

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