United States v. Kelly Michael , 463 F. App'x 660 ( 2011 )

FILED
NOT FOR PUBLICATION DEC 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10235
Plaintiff - Appellee, D.C. No. 2:10-cr-00283-KJM
v.
MEMORANDUM *
KELLY J. MICHAEL,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Kelly J. Michael appeals from his sentence of 12 months of probation
imposed following his guilty-plea conviction for possession of a controlled
substance, in violation of 21 U.S.C. § 844(a). We have jurisdiction under 28
U.S.C. § 1291, and we vacate and remand for resentencing.
*
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. Appellant. P. 34(a)(2).
Michael contends that the district court erred by denying his request for pre-
judgment probation under 18 U.S.C. § 3607(a) (allowing for a term of probation
and dismissal of the proceedings “before the expiration of the term of probation, if
the person has not violated a condition of his probation”). It is undisputed that
Michael qualified for pre-judgment probation. The district court denied Michael
pre-judgment probation based on the mistaken belief that Michael was required to
make the request before sentencing. Accordingly, we vacate and remand for
resentencing to determine whether pre-judgment probation should be imposed
under section 3607(a). See United States v. Hinkson, 585 F.3d 1247, 1262 (9th
Cir. 2009) (en banc) (“[A] district court abuses its discretion when it makes an
error of law.”).
VACATED and REMANDED.
2 11-10235