FILED
NOT FOR PUBLICATION MAY 09 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50152
Plaintiff - Appellee, D.C. No. 2:02-cr-00157-TJH-6
v.
MEMORANDUM*
TY FOWLES,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Senior District Judge, Presiding
Submitted May 7, 2012**
Pasadena, California
Before: PREGERSON, GRABER, and BERZON, Circuit Judges.
Defendant-Appellant Ty Fowles pled guilty to racketeering in violation of
18 U.S.C. § 1962(c) and racketeering conspiracy under 18 U.S.C. § 1962(d). He
appeals his sentence, arguing: (1) the district court erred in treating each of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
attempted murders underlying Fowles’ RICO convictions separately, rather than
grouping them for purposes of calculating his offense level; (2) the district court
should have treated Fowles’ attempted murders of Ryan and Tobius as prior
sentences; and (3) the district court erred in failing to reduce Fowles’ sentence for
time he served in state custody. We affirm.
1. The district court did not err in treating each of the attempted murders
underlying Fowles’ RICO convictions separately for purposes of calculating his
offense level. The Sentencing Guidelines explicitly exclude attempted murder
from the offenses that are to be grouped in calculating a defendant’s offense level.
U.S.S.G. § 3D1.2.
Furthermore, because this court’s remand to the district court for re-
sentencing was “upon an open record,” the district court was permitted to
“consider any matters relevant to sentencing, even those that may not have been
raised at the first sentencing hearing.” United States v. Matthews, 278 F.3d 880,
885 (9th Cir. 2002) (en banc). Therefore, although the district court had previously
grouped the offenses underlying Fowles’ RICO convictions, it was permitted to
reconsider such grouping upon re-sentencing.
2. “Certain conduct may be charged in the count of conviction as part of
a ‘pattern of racketeering activity’ even though the defendant has previously been
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sentenced for that conduct.” U.S.S.G. § 2E1.1 cmt. n.4. If the defendant was
convicted for that conduct “prior to the last overt act” of the RICO offense for
which he is being sentenced, that conduct is treated “not as part of the instant
offense,” but rather “as a prior sentence.” Id.
The only offense underlying Fowles’ RICO convictions for which he was
previously sentenced was the attempted murder of Singleton. Therefore, the
district court did not err in treating the attempted murder of Singleton as a prior
sentence, while classifying the attempted murders of Ryan, Tobius, and Perkins as
“part of the instant offense.”
3. Fowles argues that because the district court, when it initially
sentenced him, took into account the time he served in state custody pursuant to his
state conviction for the attempted murder of Singleton, it erred in failing to do so
upon re-sentencing. This argument fails for two reasons: First, as previously
noted, the remand for re-sentencing was on an open record, and therefore the
district court was permitted to re-sentence Fowles “as if it were sentencing de
novo.” Matthews, 278 F.3d at 885–86. Furthermore, the record demonstrates that
the district court did reduce Fowles’ sentence based on the time he served pursuant
to the state conviction. The judge explicitly stated: “I think that the maximum
would have been 20 years, 240 months, but I’m going to reduce that further
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because of the state conviction underlying. And I’m going to sentence you to 15
years . . . .”
AFFIRMED.
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