United States v. Peralta ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 19, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-2130
(D.C. No. 1:17-CR-00695-JMC-1)
CHARMAINE PERALTA, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges.
_________________________________
This matter is before us on the United States’ Unopposed Motion for Remand to
the District Court for Resentencing (“Motion”). In the Motion, the United States
concedes that the district court committed reversible procedural error when it failed to
provide a factual basis in the record for using USSG §2A2.2 to determine Ms. Peralta’s
base offense level at sentencing. Accordingly, the parties ask us to remand for
resentencing so that the district court can correct this procedural error.
*
After examining the 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. This order and judgment is not binding precedent, except under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.
Upon careful consideration, the Motion is GRANTED. This matter is remanded to
the U.S. District Court for the District of New Mexico with instructions to vacate its
judgment, and resentence Ms. Peralta in a manner that resolves the aforementioned
procedural error. A copy of this order and judgment shall stand as and for the mandate of
the court.
Entered for the Court
Per Curiam
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