NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0056n.06
FILED
No. 10-3622
Jan 13, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
DINO A. PARRELLA, )
)
Defendant-Appellant. )
)
BEFORE: BOGGS, ROGERS, and SUTTON, Circuit Judges.
PER CURIAM. Dino A. Parrella pleaded guilty to being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g), and was sentenced to seventy months in prison. On appeal,
Parrella argues that his plea was invalid and that his sentence was procedurally and substantively
unreasonable. We affirm Parrella’s conviction but remand for resentencing.
Parrella was charged with the above-specified offense based on his possession of a gun
collection that he inherited from his father. In the plea agreement, the parties stipulated that
Parrella’s base offense level was 20 as a result of his 1991 felony assault conviction. See USSG
§ 2K2.1(a)(4)(A). The parties also stipulated that Parrella’s base offense level would be increased
by four levels based on the number of firearms involved in the offense, see USSG § 2K2.1(b)(1)(B),
and reduced by three levels for acceptance of responsibility, see USSG § 3E1.1. The parties
disagreed on whether a four-level enhancement should apply because one of the firearms had an
altered or obliterated serial number. See USSG § 2K2.1(b)(4)(B).
No. 10-3622
United States v. Parrella
The district court ruled in the government’s favor on that issue and adopted the guideline
calculations set forth in the plea agreement, resulting in a total offense level of 25. When combined
with Parrella’s criminal history category of III, this yielded a guideline range of 70 to 87 months.
The district court sentenced Parrella to 70 months of imprisonment, to be followed by three years
of supervised release.
The parties now agree that, because Parrella’s 1991 felony assault conviction was too old to
be assessed criminal history points, it should not have been considered for purposes of calculating
his base offense level. See USSG § 2K2.1, comment. (n.10). Rather, Parrella’s base offense level
should have been 14, with eligibility for a further reduction if the district court determined that he
possessed the guns solely for collection and did not discharge or use them unlawfully. See USSG
§ 2K2.1(a)(6), (b)(2). The government concedes that this error is plain and warrants resentencing.
See United States v. Baker, 559 F.3d 443, 454 (6th Cir. 2009) (holding that a miscalculation that
increases the guideline range constitutes plain error). Because we agree that this procedural error
requires a remand for resentencing, we do not address Parrella’s challenge to the substantive
reasonableness of his sentence. See United States v. Novales, 589 F.3d 310, 314 (6th Cir. 2009).
To the extent that Parrella argues that this error renders his plea invalid, we disagree. Parrella
was properly advised of the statutory maximum sentence of ten years, and his misapprehension as
to the applicable guideline range did not affect the voluntariness of his plea. See United States v.
Brown, 391 F. App’x 524, 528 (6th Cir. 2010); United States v. Hodge, 259 F.3d 549, 553-54 (6th
Cir. 2001). The case on which Parrella relies, Pitts v. United States, 763 F.2d 197, 201 (6th Cir.
1985), is inapposite because, in that case, the district court improperly advised the defendant of the
maximum penalty authorized by statute.
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No. 10-3622
United States v. Parrella
Because of the error in calculating Parella’s advisory guideline range, we vacate the sentence
imposed by the district court and remand the case for resentencing.
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