United States v. Dana Brete Garrett

Appellant Dana Brete Garrett appeals from his 18-month sentence, imposed after a guilty plea, for the crime of bank fraud in violation of 18 U.S.C. § 1344 . On appeal, Garrett’s principal argument is that the district court misapplied U.S.S.G. § 5G1.3 by meting out an incorrect “incremental punishment.” Because the district court failed to properly consider the commentary methodology of the Sentencing Guidelines or to explain, as required by United States v. Red-man, 35 F.3d 437 (9th Cir.1994), its reasons for using an alternative methodology, we vacate and remand for resentencing.

At the time of federal sentencing, Garrett had served approximately 15 months of an indeterminate state sentence with a maximum of four years. Appellant’s trial counsel represented at his federal sentencing hearing that the defendant would probably serve a total of approximately 24 months on the state court sentence as a result of Arizona’s good-time credit system. The district court determined that appellant’s criminal history Category was III, and that the applicable guideline range for the sentence of conviction was 18-24 months. The district judge accepted the government’s recommendation that the…