United States v. Van Ly

MEMORANDUM *

Son Va Ly appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2255 . He alleges ineffective assistance of counsel at the sentencing phase of his trial. We reverse the district court’s denial and grant Ly’s petition.

Ly’s counsel was ineffective for failing to object to the sentencing judge’s decision to adopt the unsupported loss figure quoted in the presentencing report, which the sentencing judge used as the basis for enhancing Ly’s sentence pursuant to USSG § 2B3.1. It is well-established that “[t]he court ... may not ... adopt conclusory statements unsupported by the facts or the Guidelines.” United States v. Navarro, 979 F.2d 786, 789 (9th Cir.1992) (internal citations omitted). Furthermore, “as with all factors which increase a defendant’s offense level, the government is required to prove the approximate quantity.” United States v. August, 86 F.3d 151, 154 (9th Cir.1996). The sentencing judge erred in adopting, without any factual basis therefor, the presentencing report’s conclusion that $10 million was lost in the Centón robbery, especially because the presentencing report offered no factual *276 support for, or…