FILED
NOT FOR PUBLICATION AUG 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30369
Plaintiff - Appellee, D.C. No. 2:08-cr-00165-WFN-001
v.
MEMORANDUM*
MICHELLE ANN WING,
Defendant - Appellant,
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremning Nielsen, Senior District Judge, Presiding
Argued and Submitted July 15, 2010
Seattle, Washington
Before: RYMER and N.R. SMITH, Circuit Judges, and CEBULL, Chief District
Judge.**
Michelle Ann Wing appeals the 86-month sentence imposed upon her guilty
plea to six counts of bank fraud, in violation of 18 U.S.C. §§ 1342 & 1344, and
one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard F. Cebull, United States District Judge for the
District of Montana, sitting by designation.
We have jurisdiction under 28 U.S.C. § 1291. We reverse because the district
court failed to correctly calculate the guideline range. See United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008) (en banc) (citing Gall v. United States, 552 U.S.
38, 51 (2007)).
1.
Wing first argues the district court erred by calling Wing’s supervising
probation officer to testify concerning the facts underlying the Presentence
Investigation Report’s U.S.S.G. § 3C1.1 obstruction of justice enhancement
recommendation. But so long as he remains impartial and disinterested, a
sentencing judge has authority to call and question witnesses. United States v.
Alfaro, 336 F.3d 876, 883 (9th Cir. 2003). Moreover, Wing objected to the
Presentence Investigation Report’s recommendation that the court impose a two-
level increase for obstruction of justice. Since the plea agreement prohibited the
United States from seeking an obstruction of justice enhancement, the district court
properly called and questioned the probation officer concerning facts within her
personal knowledge in order to rule on Wing’s objection to the report. Finally, the
district court’s questions did not evidence bias, but were precisely aimed at
clarifying information contained in the Presentence Investigation Report. Once the
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district court finished its questioning, both parties were allowed to question the
witness.
We find no error here.
2.
Wing further argues that the district court erred in applying a two-level
enhancement for obstruction of justice. “We review the district court’s
interpretation of the Sentencing Guidelines de novo, the district court’s application
of the Guidelines to the facts for abuse of discretion, and the district court’s factual
findings for clear error.” United States v. Garro, 517 F.3d 1163, 1167 (9th Cir.
2008) (citing United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006)). A
review of the record reveals both factual and legal support under Application Note
1 to U.S.S.G. § 3C1.1 for the obstruction of justice enhancement.
3.
Finally, Wing is correct that the district court erred in applying a two-level
enhancement untethered to any provision in the United States Sentencing
Guidelines Manual. Although the guidelines are advisory, an incorrect guideline
calculation requires remand for resentencing even if the sentence imposed is
substantively reasonable. Carty, 520 F.3d at 993.
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Here, the district court correctly calculated an offense level of 22 before it
added 2 more levels without citing a particular guideline provision. An
enhancement to the defendant’s guideline range must be tied to a particular
provision. A variance to the defendant’s guideline range is justified under the
§ 3553(a) factors. Under the precedent of this Court, procedural error cannot be
ignored.
Therefore, because of this error, we vacate the sentence and remand for
resentencing.
REVERSED AND REMANDED.
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