United States of America v. Gabriel Joseph Andrew

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GABRIEL JOSEPH ANDREW,
Defendant - Appellant.
No. 15-30017
D.C. No. 2:14-cr-00085-SAB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Stanley Allen Bastian, District Judge, Presiding
Submitted October 14, 2015**
Before: SILVERMAN, BYBEE, and WATFORD, Circuit Judges.
Gabriel Joseph Andrew appeals from the district court’s judgment and
challenges the 36-month sentence imposed following his guilty-plea conviction for
assault resulting in substantial bodily injury to a spouse, intimate partner, or dating
partner in Indian Country, in violation of 18 U.S.C §§ 113(a)(7) and 1153. We
FILED
OCT 19 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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. App. P. 34(a)(2).

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have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for
resentencing.
Andrew contends, and the government concedes, that remand is warranted
because the district court improperly lengthened the custodial sentence to promote
Andrew’s rehabilitation. We agree that the record reflects that the court
lengthened the sentence to ensure that Andrew would receive substance abuse
treatment while in custody. Therefore, we vacate and remand for resentencing.
See Tapia v. United States, 131 S. Ct. 2382, 2391 (2011) (sentencing courts are
precluded “from imposing or lengthening a prison term to promote an offender’s
rehabilitation”).
Andrew also requests remand to correct a clerical error in the judgment,
which states that he entered federal custody on July 17, 2014, rather than June 17,
2014. The government concedes the error. The judgment entered following
Andrew’s resentencing shall state that Andrew entered federal custody on June 17,
2014.
In light of this disposition, we decline to reach Andrew’s remaining claim of
sentencing error.
VACATED AND REMANDED for resentencing.
15-30017 2

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