FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 12, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-4024
(D.C. No. 2:10-CR-01088-DN-1)
JEFFREY CHARLES ZANDER, (D. Utah)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before McHUGH, KELLY, and MORITZ, Circuit Judges.**
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Defendant-Appellant Jeffrey Zander appeals from a 10-month sentence
imposed after the district court revoked his supervised release. He also requested
that the court expedite consideration of his appeal. Our jurisdiction arises under 18
U.S.C. § 3742(a). We grant his request to expedite and remand for resentencing.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Background
In 2013, Mr. Zander was convicted of two counts of mail fraud (18 U.S.C.
§ 1341), two counts of wire fraud (18 U.S.C. § 1343), one count of money laundering
(18 U.S.C. § 1957), and three counts of failure to file federal tax returns (26 U.S.C.
§ 7203). His conviction and sentence were affirmed on direct appeal. See United
States v. Zander, 794 F.3d 1220 (10th Cir. 2015).
After his imprisonment, his 36 months’ supervised release period began on
July 9, 2018. 2 R. 19. Soon after his supervised release period began, Mr. Zander
violated three terms of his release. His first alleged violation stemmed from his
arrest in Nebraska on an outstanding warrant for writing bad checks. Id. at 16, 18.
One condition of his release required him to report any arrest to his probation officer
within 72 hours. Id. at 18. He failed to do so. Id. His second and third alleged
violations stemmed from one incident. Another condition of his release prohibited
him from committing another federal, state, or local crime. Id. He was arrested in
Salt Lake City after stealing a woman’s purse and using her credit cards at a grocery
store. Id. at 19. This conduct constituted two state crimes: (1) receiving a financial
transaction card with intent to use it, and (2) theft. Id. at 18.
The Probation Office prepared a violation report in anticipation of a revocation
hearing. Id. at 16. The violation report stated that the highest-grade violation was
Grade B and that Mr. Zander’s criminal history category was I. Id. at 21. That
yielded a recommended guideline range of four to ten months’ imprisonment. Id.
The report did not break down the grade of violation by individual allegation.
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At the revocation hearing, the United States agreed to dismiss the second
allegation (committing the offense of receiving a financial transaction card with
intent to use it) in return for Mr. Zander admitting to the first and third allegations
(failure to report his arrest within 72 hours and committing the crime of theft,
respectively). 3 R. 3–4. Despite the dismissal of the second allegation, the court
sentenced him to 10 months’ imprisonment, followed by 26 months’ supervised
release. Id. at 10. The 10-month sentence was the high end of the guideline range
for a Grade B violation. 2 R. 21. Mr. Zander did not object. He now appeals from
that sentence.
Discussion
Because Mr. Zander did not contemporaneously object to his sentence in the
district court, he is subject to the plain error standard on appeal. United States v.
Garcia-Caraveo, 586 F.3d 1230, 1232 (10th Cir. 2009). Plain error requires him to
show that the district court (1) committed an error, (2) that was plain or obvious, (3)
that affected his substantial rights, and (4) that seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See Rosales-Mireles v. United
States, 138 S. Ct. 1897, 1904–05 (2018).
The district court was only sentencing Mr. Zander on the admissions that he
failed to report his arrest to probation within 72 hours and committed the state crime
of theft. Here, the theft was a misdemeanor under Utah law because the value of the
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property stolen was less than $1,5001 and therefore only punishable by imprisonment
for less than a year. See Utah Code Ann. §§ 76-6-412(1)(c)–(d), 76-3-204. The
guidelines provide that a Grade C violation is conduct constituting either (1) a
federal, state, or local offense punishable by a term of imprisonment of one year or
less; or (2) a violation of any other condition of supervision. U.S.S.G. § 7B1.1(a)(3).
Thus, both the theft and the reporting violation were Grade C violations. Because
Mr. Zander was sentenced using the incorrect guideline range, he has met the first
and second elements of the plain error standard.
Mr. Zander must next show that the district court’s plain error affected his
substantial rights and affected the integrity of judicial proceedings. When a district
court bases its sentencing decision on a miscalculation of the applicable guideline
range, we presume that a defendant was prejudiced by that error. United States v.
Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014). This is because “the
Guidelines are not only the starting point for most federal sentencing proceedings but
also the lodestar.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016).
So, if “the court’s starting point is skewed” it stands to reason that “its final sentence
is skewed too.” Sabillon-Umana, 772 F.3d at 1333. The government recognizes that
the plain error standard applies and does not object to Mr. Zander’s resentencing.
Aplee. Br. at 5. Mr. Zander has established plain error.
1
The parties inform us that the loss amount was $1,100. Aplt. Br. at 8; Aplee. Br. at
7.
4
We GRANT Mr. Zander’s motion to expedite and the case is REMANDED
with instructions to vacate Mr. Zander’s sentence and resentence him using the
correct guideline range.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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