United States v. Mario Weicks

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10107

Plaintiff-Appellee, D.C. Nos. 2:05-cr-00040-KJD-RJJ-1 v. 2:13-cv-00539-KJD

MARIO WEICKS, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding

Submitted May 18, 2021** Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.

Mario Weicks appeals from the district court’s amended judgment and challenges the 270-month sentence imposed upon resentencing. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Weicks was originally convicted of possessing a firearm in furtherance of a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

crime of violence under 18 U.S.C. § 924(c), and received a mandatory, consecutive 60-month term of imprisonment for this conviction. Weicks challenged the constitutionality of that conviction in his 28 U.S.C. § 2255 motion, which the district court denied. In light of the Supreme Court’s intervening decision of United States v. Davis, 139 S. Ct. 2319 (2019), we vacated the district court’s order insofar as it denied Weicks’s § 924(c) claim, and remanded for resentencing. On remand, the district court vacated the 60-month consecutive sentence imposed on Weicks’s now-invalid § 924(c) conviction, and left the 270-month sentence on the remaining convictions intact.

On appeal, Weicks contends that the district court should have recalculated the Guidelines range without an undue influence enhancement under U.S.S.G. § 2G1.3(b)(2)(B) and grouped the felon in possession count with one of the prostitution-related counts. When a § 2255 movant successfully challenges one out of multiple counts of conviction, the district court has discretion to either conduct a full resentencing or correct the sentence only as to the vacated count. See Troiano v. United States, 918 F.3d 1082, 1086-87 (9th Cir. 2019). On the record before us, we conclude that the district court did not abuse its discretion by simply excising the 60-month sentence for the vacated § 924(c) conviction. See id.

AFFIRMED.

Footnotes

[2] 20-10107