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United States v. Pridgette

United States Court of Appeals, Ninth Circuit

August 5, 2016

United States of America, Plaintiff-Appellee,
v.
Lajai Jamar Pridgette, Defendant-Appellant.

          Argued February 2, 2016

          Submitted August 5, 2016 Seattle, Washington [*]

         Appeal from the United States District Court No. 1:13-cr-00281-EJL-1 for the District of Idaho Edward J. Lodge, Senior District Judge, Presiding

          Dennis Alan Benjamin (argued), Nevin, Benjamin, McKay & Bartlett LLP, Boise, Idaho, for Defendant-Appellant.

          Kevin 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 Plaintiff-Appellee.

          Before: Alex Kozinski, Diarmuid F. O'Scannlain and Ronald M. Gould, Circuit Judges.

         SUMMARY [**]

         Criminal Law

         The panel vacated the district court's sentencing order and restitution order and remanded for resentencing on the existing record after the government conceded error.

         As to 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.

         Judge 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 sentences.

          OPINION

          KOZINSKI, Circuit Judge.

         We consider whether a remand for resentencing a criminal defendant should be on an open or closed record.

         FACTS

         In 2013, Lajai Pridgette was driving a Mustang on Interstate 84 in southern Idaho.[1] 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.

         Pridgette 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.

         Senior 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).[2] Flock assigned two criminal-history points for the 2003 offense and two further points for the 2004 offense.

         Pridgette 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 Probation."

         Pridgette 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."

         In 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 been suspended.

         At 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.

         Given 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 ...


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