United States v. Kevin Falcon

MEMORANDUM

Kevin Falcon appeals from the 110-month sentence imposed on remand following his guilty-plea conviction for being a felon in possession of a firearm, in violation of 18 U.S.C: § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291 , and we vacate and remand.

Falcon argues that his sentence is procedurally and substantively unreasonable, in light of both his poor health and the relative seriousness of his offense. A correctly-calculated advisory Sentencing Guidelines range is “the starting point and the initial benchmark” for sentencing. See Gall v. United States, 552 U.S. 38, 49 , 128 S.Ct. 586 , 169 L.Ed.2d 445 (2007). As no basis appears in the record for the district court’s selection of a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4), and as it seems likely, instead, that Falcon’s base offense level should have been assessed as 14, under section 2K2.1(a)(6), we cannot conclude that the 110-month sentence was either procedurally or substantively reasonable. Accordingly, we vacate the sentence and remand for resentencing.

We are in receipt of Falcon’s pro se motion to obtain new appellate counsel. In view of our decision to remand, we deny that motion as…