February 2, 2016
Submitted August 5, 2016 Seattle, Washington [*]
from the United States District Court No. 1:13-cr-00281-EJL-1
for the District of Idaho Edward J. Lodge, Senior District
Alan Benjamin (argued), Nevin, Benjamin, McKay & Bartlett
LLP, Boise, Idaho, for Defendant-Appellant.
Thomas Maloney (argued) and Marc Haws, Assistant United
States Attorneys; Wendy J. Olson, United States Attorney;
Office of the United States Attorney, Boise, Idaho; for
Before: Alex Kozinski, Diarmuid F. O'Scannlain and Ronald
M. Gould, Circuit Judges.
panel vacated the district court's sentencing order and
restitution order and remanded for resentencing on the
existing record after the government conceded error.
the sentence, the government conceded that the record before
the district court did not establish that the defendant
served sufficient time in custody to support the assessment
of two criminal history points for each of two prior
convictions. The panel declined to follow the usual course
when a district court errs in sentencing, and remand for
resentencing on an open record, because the government
squarely raised its arguments before the district court and
tried but failed to prove facts supporting an increased
sentence; in other words, there was a failure of proof after
a full inquiry into the factual questions at issue.
O'Scannlain concurred in the court's vacatur of the
sentence and restitution order and in its remand for
resentencing. He dissented from the court's decision to
remand on a closed record because the defendant did not
request this remedy. In addition, Judge O'Scannlain was
not convinced that the district court conducted a "full
inquiry" into the duration of the defendant's prior
KOZINSKI, Circuit Judge.
consider whether a remand for resentencing a criminal
defendant should be on an open or closed record.
2013, Lajai Pridgette was driving a Mustang on Interstate 84
in southern Idaho. Occupants of two separate vehicles
reported that someone had shot at them from inside the
Mustang. An Idaho State Trooper tracked down the Mustang, and
Pridgette was arrested. While searching the Mustang, Troopers
recovered a handgun, a spent shell casing, marijuana and
machines used to produce counterfeit credit cards. It was
later determined that the Mustang had been rented from Hertz
but was not returned on the agreed-upon date.
was charged with transporting a stolen vehicle, being a felon
in possession of a firearm, possessing counterfeit credit
cards and possessing counterfeiting devices. A jury convicted
Pridgette on each count. The district judge sentenced him to
137 months incarceration and ordered him to pay $13, 709.16
in restitution to Hertz and the credit card companies.
United States Probation Officer Brent Flock prepared a
presentence investigation report (PSR) detailing
Pridgette's criminal history. The PSR indicated that
Pridgette had been convicted of possessing a controlled
substance in 2003. Flock determined that Pridgette's
sentence for this offense had been "4 years probation,
60 days jail." Flock also indicated that Pridgette was
convicted on a second drug charge in 2004. The PSR
represented that Pridgette was sentenced to "5 years
probation, 365 days jail" for this offense. The
Sentencing Guidelines assign two criminal-history points
"for each prior sentence of imprisonment of at least
sixty days" but less than one year and one month, and
one point for each prior sentence of fewer than 60 days.
U.S.S.G. § 4A1.1(a)-(c). Flock assigned two
criminal-history points for the 2003 offense and two further
points for the 2004 offense.
objected to the PSR on the ground that it misrepresented the
amount of time he spent behind bars for these two prior
offenses. As to the 2003 offense, Pridgette argued that
"[n]either the discovery provided by the United States
Attorney nor the materials provided by the Probation
Office" showed the duration of his sentence. As to the
2004 offense, Pridgette argued that he had served only 8 days
in prison, not 365 days as indicated in the PSR. Flock
responded to Pridgette's objections by pointing out that
records from the "Sacramento County Superior Court and
Sacramento County detention facility [demonstrate] that the
defendant was convicted of the offenses and served the
custody dates outlined in the [PSR]." The government
filed its own response, suggesting that the "documents
of record reflect all relevant facts" and that the PSR
appropriately summarized "documents obtained by
filed a sentencing memorandum that reiterated his objections,
and objected for a third time at sentencing. The district
judge decided that "the probation officer's comments
adequately address [Pridgette's] concerns and
objections" to the PSR, and therefore "adopt[ed]
the presentence investigator's response to those
objections as [his] own."
reality, the records from the Superior Court plainly did not
confirm the PSR's custody dates. The minute order of the
2003 conviction indicated that Pridgette served only 6 days
of his 60 day sentence and that the remainder of the sentence
was suspended. Similarly, the minute order of the 2004
conviction indicated that Pridgette served only 8 days of his
365 day sentence. The remainder of that sentence had also
argument before us, the government conceded that the
documents from the Sacramento County detention facility are
not in the record. Flock represented in the addendum to the
PSR that he had given the detention facility documents to
Pridgette's lawyer, but Pridgette's lawyer told us
that he had never seen them. The government offered no reason
to doubt counsel's representation. Indeed, the government
represented that it had never seen the detention facility
documents either. The government could not say whether the
detention facility documents in fact exist.
the government's concession, we allowed the Assistant
U.S. Attorney 48 hours to consider whether to confess error.
The government responded by filing a letter brief
"acknowledg[ing] that this Court cannot affirm" and
"request[ing] a remand to allow the district court to
consider a more fully developed record on th[e sentencing]
issue." We then ordered supplemental briefing as ...