NOT FOR PUBLICATION FILED
JAN 6 2017
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-17293
Plaintiff-Appellee, D.C. 2:13-cv-01593-RCJ
v. MEMORANDUM*
CARL CHESTER,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, District Judge, Presiding
Submitted December 13, 2016**
San Francisco, California
Before: BERZON and MURGUIA, Circuit Judges, and BLOCK,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
1
On February 18, 2015, the Court granted the request for a certificate of
appealability submitted by Carl Chester as to one issue: “[W]hether appellate
counsel rendered ineffective assistance by failing to argue that the Fair Sentencing
Act [‘FSA’] applied at the 2012 resentencing, including whether appellant is
entitled to a reduced term of supervised release, or reclassification of his
convictions.” We vacate and remand.
1. At the time of Chester’s resentencing, the FSA categorized two of his
three convictions as Class B felonies and established a range of five-to-forty years’
imprisonment and a minimum of four years’ supervised release for such felonies.
21 U.S.C. § 841(b)(1)(B)(iii). The cover page of Chester’s Presentence
Investigation Report (“PSR”), however, incorrectly classified these two
convictions as Class A felonies subject to higher minimums, and Chester’s counsel
did not contest this oversight. Informed at the sentencing hearing of the PSR’s
mistake as to the FSA’s minimum for imprisonment, but not as to supervised
release, the district court sentenced Chester to 168 months in prison and five years’
supervised release.
2. As Chester’s appellate counsel contends and the Government
concedes, the district court’s sentence of supervised release was based on its
mistaken belief as to the FSA’s statutory minimum, and Chester’s counsel failed to
correct this misimpression. Accordingly, both parties agree that the case should be
2
remanded so as to allow the district court to make a fully informed decision
regarding Chester’s term of supervised release.
3. In contrast, both Chester and the Government apprised the district
court as to the proper statutory minimum term of imprisonment for the two
misclassified felony convictions. When the district court sentenced Chester to 168
months, it selected a term within the proper statutory range with full knowledge of
the applicable minimum term. As such, in regards to his prison sentence, Chester
could not have been prejudiced by his counsel’s failure, so we deny the petition as
to the prison sentence.
4. The uncertified issues raised in Chester’s opening brief are without
merit.
VACATED and REMANDED.
3