United States v. Patrick Markas Boyd

82 F.3d 423 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Patrick Markas BOYD, Defendant-Appellant. No. 95-50339. United States Court of Appeals, Ninth Circuit. Submitted March 26, 1996.* Decided April 1, 1996. Before: GOODWIN, WIGGINS, and O'SCANNLAIN, Circuit Judges. MEMORANDUM** Patrick Markas Boyd appeals the sentence imposed following the revocation of his probation. Boyd contends his twelve-month term exceeds the district court's authority to impose a sentence within his original guidelines range of four to ten months. This contention lacks merit; upon probation revocation, the district court has authority, pursuant to 18 U.S.C. §§ 3553(a)(4) and 3565(a), to rely either on the original guidelines range or on the guidelines policy statements governing probation revocation, U.S.S.G. §§ 7B1.3 & 7B1.4, p.s. United States v. Plunkett, 74 F.3d 938, 940 (9th Cir.1996), amended, No. 95-30053, 1996 WL 104845 (9th Cir. Mar. 12, 1996) (holding that 1994 amendments to §§ 3553 and 3565 did not alter district court's authority). Because Boyd committed a Grade C violation and was in criminal history category II, his sentencing range under the policy statements, like his original guidelines range, was four to ten months. See U.S.S.G. § 7B1.4(a), p.s. The government correctly concedes that in imposing a twelve-month term, the district court erred by departing upward from the four-to-ten-month range without explanation. Accordingly, we vacate the district court's judgment and remand for a statement of reasons. See United States v. Donaghe, 50 F.3d 608, 613 (9th Cir.1994). VACATED and REMANDED. Footnotes [-s] * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 [-s-s] ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3