NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10260
Plaintiff-Appellee, D.C. No.
1:13-cr-00007-DAD-BAM-1
v.
MARCELLO JEROME PINKNEY, AKA MEMORANDUM*
Cello,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted April 17, 2019**
San Francisco, California
Before: THOMAS, Chief Judge, M. SMITH, Circuit Judge, and VRATIL,***
District Judge.
Marcello Jerome Pinkney appeals the district court’s judgment revoking his
*
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).
***
The Honorable Kathryn H. Vratil, United States District Judge for the
District of Kansas, sitting by designation.
term of supervised release and imposed a sentence of 18 months in prison and
18 months on supervised release with special conditions. We exercise jurisdiction
under 28 U.S.C. § 1291. Pinkney argues that the sentence is procedurally erroneous
and substantively unreasonable. Because we find procedural error, we vacate and
remand for resentencing without addressing his challenges to the substantive
reasonableness of his sentence or the special conditions of supervised release.
Similar procedural safeguards govern sentencing on an offense under the
ranges in Chapter 5 of the Sentencing Guidelines and revocation of supervised
release under the ranges in the Sentencing Commission’s Chapter 7 policy
statements. See United States v. Miqbel, 444 F.3d 1173, 1177–78 (9th Cir. 2006).
A district court should begin all sentencing proceedings with a calculation of the
applicable advisory range. Gall v. United States, 552 U.S. 38, 49 (2007). Once the
district court considers the applicable factors under 18 U.S.C. § 3553(a) and selects
a sentence, it must explain the sentence sufficiently to provide meaningful appellate
review. United States v. Carty, 520 F.3d 984, 991–92 (9th Cir. 2008) (en banc). A
sentence within the advisory range often needs little explanation, and a sufficient
explanation can sometimes be inferred from the record as a whole. United States v.
Vasquez-Perez, 742 F.3d 896, 900 (9th Cir. 2014). On the other hand, if the district
court determines that a sentence outside the advisory range is warranted, it must state
at the time of sentencing the “specific reason for the imposition of a sentence
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different from that described.” 18 U.S.C. § 3553(c)(2); see Miqbel, 444 F.3d at
1177–78 (statutory requirement applies equally to revocation proceedings). As to
conditions of release, unless the reasonableness of the restriction is apparent from
the record, the district court must state at sentencing the reasons for imposing each
condition. United States v. Collins, 684 F.3d 873, 890 (9th Cir. 2012).
At sentencing, Pinkney did not object to the adequacy of the district court’s
explanation of the sentence. Accordingly, we review for plain error. Miqbel, 444
F.3d at 1176.
The district court did not state (1) the applicable range in the Chapter 7 policy
statements, (2) how it resolved the various factual disputes in the dismissed charges,
or if it declined to consider them, (3) why it imposed a term of imprisonment seven
months more than the high end of the 5 to 11 month range that the U.S. Probation
Office calculated, (4) why it imposed the maximum authorized term of supervised
release, or (5) why it imposed various special conditions of release (specifically,
Nos. 2–6, and 9). The district court stated that it had considered the various statutory
sentencing factors and the Sentencing Commission policy statements, but such
generalized statements are insufficient to provide meaningful appellate review. The
district court’s brief admonishment that Pinkney needed to change was not tied to
any specific sentencing factor and reflects merely general advice not linked to this
defendant. Finally, the district court’s reasoning cannot be inferred from the record
3 18-10260
as a whole. See Carty, 520 F.3d at 992. Although Pinkney did not object to the
district court’s failure to explain the sentence, the district court’s omissions
collectively constitute “significant procedural error.” Gall, 552 U.S. at 51.
Accordingly, we vacate Pinkney’s sentence and remand for resentencing.
VACATED and REMANDED for resentencing.
4 18-10260