United States of America v. Kelly J. Michael

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KELLY J. MICHAEL,
Defendant - Appellant.
No. 11-10235
D.C. No. 2:10-cr-00283-KJM
MEMORANDUM*
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.
FILED
DEC 22 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-10235 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.

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