United States of America v. Mario Weicks

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIO WEICKS,
Defendant-Appellant.
No. 20-10107
D.C. Nos.
2:05-cr-00040-KJD-RJJ-1
2:13-cv-00539-KJD
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted May 18, 2021**
Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
Mario Weicks appeals from the district court’s amended judgment and
challenges the 270-month sentence imposed upon resentencing. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Weicks was originally convicted of possessing a firearm in furtherance of a
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAY 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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crime of violence under 18 U.S.C. § 924(c), and received a mandatory, consecutive
60-month term of imprisonment for this conviction. Weicks challenged the
constitutionality of that conviction in his 28 U.S.C. § 2255 motion, which the
district court denied. In light of the Supreme Court’s intervening decision of
United States v. Davis, 139 S. Ct. 2319 (2019), we vacated the district court’s order
insofar as it denied Weicks’s § 924(c) claim, and remanded for resentencing. On
remand, the district court vacated the 60-month consecutive sentence imposed on
Weicks’s now-invalid § 924(c) conviction, and left the 270-month sentence on the
remaining convictions intact.
On appeal, Weicks contends that the district court should have recalculated
the Guidelines range without an undue influence enhancement under U.S.S.G.
§ 2G1.3(b)(2)(B) and grouped the felon in possession count with one of the
prostitution-related counts. When a § 2255 movant successfully challenges one
out of multiple counts of conviction, the district court has discretion to either
conduct a full resentencing or correct the sentence only as to the vacated count.
See Troiano v. United States, 918 F.3d 1082, 1086-87 (9th Cir. 2019). On the
record before us, we conclude that the district court did not abuse its discretion by
simply excising the 60-month sentence for the vacated § 924(c) conviction. See id.
AFFIRMED.

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