United States of America v. JOHN GORDON BADEN, AKA John Gordon Baden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN GORDON BADEN, AKA John
Gordon Baden,
Defendant-Appellant.
No. 15-50427
D.C. No.
3:14-cr-00277-GPC-3
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted December 5, 2016
Pasadena, California
Before: REINHARDT, W. FLETCHER, and PAEZ, Circuit Judges.
John Gordon Baden appeals his sentence of 108 months’ imprisonment
following his conviction of computer hacking in violation of 18 U.S.C.
§§ 1030(a)(4) and (c)(3)(A), wire fraud in violation of 18 U.S.C. § 1343, and
conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. We have
FILED
DEC 20 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Reviewing for plain
error, we vacate Baden’s sentence and remand for resentencing.
1. To establish plain error, Baden must demonstrate (1) there was “an
error[,]” (2) the error was “plain[,]” and (3) “the error . . . affected the defendant’s
substantial rights, which in the ordinary case means that he or she must show a
reasonable probability that, but for the error, the outcome of the proceeding would
have been different.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343
(2016) (citations and internal quotation marks omitted). “Once these three
conditions have been met, the court of appeals should exercise its discretion to
correct the forfeited error if [(4)] the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal quotation marks omitted).
2. The government concedes that the first two prongs are satisfied
because the district court plainly erred in applying the two-level sentencing
enhancement for “theft from the person of another” under § 2B1.1(b)(3) of the
United States Sentencing Guidelines (the “Guidelines”).
3. As to the third prong, “in the ordinary case a defendant will satisfy his
burden to show prejudice by pointing to the application of an incorrect, higher
Guidelines range and the sentence he received thereunder.” Id. at 1347. This is an
“ordinary” case, and Baden makes such a showing. Indeed, the district court relied
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on the erroneous Guidelines calculation in fashioning Baden’s sentence and did not
base his sentence solely on “factors independent of the Guidelines.” See id.
Because the record is “silent as to what the district court might have done had it
considered the correct Guidelines range,” the error affected Baden’s substantial
rights. Id.
4. Baden satisfies the fourth prong by demonstrating that the error
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Joseph, 716 F.3d 1273, 1281 (9th Cir. 2013)
(internal quotation marks omitted). “We have regularly deemed the fourth prong
of the plain error standard to have been satisfied where, as here, the sentencing
court committed a legal error that may have increased the length of a defendant’s
sentence.” Id. (quoting United States v. Tapia, 665 F.3d 1059, 1063 (9th Cir.
2011)). Accordingly, we vacate Baden’s sentence and remand for resentencing.
VACATED and REMANDED.
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