United States of America v. Anna Rea Yellow Owl

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANNA REA YELLOW OWL,
Defendant - Appellant.
No. 09-30300
D.C. No. 4:09-cr-00032-SEH
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted July 19, 2010**
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Anna Rea Yellow Owl appeals from the 50-month within-Guidelines
sentence imposed following her guilty-plea conviction for distribution of cocaine
in a public housing facility, in violation of 21 U.S.C. §§ 841(a)(1) and 860. We
have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.
FILED
AUG 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-30300 2
Although Yellow Owl challenges only the substantive reasonableness of her
sentence on appeal, we “must review sentencing decisions for procedural
error, even where no claim of procedural error is raised.” United States v. Ressam,
593 F.3d 1095, 1116 (9th Cir. 2010).
A district court procedurally errs when it fails to calculate or calculates
incorrectly the Guidelines range. United States v. Carty, 520 F.3d 984, 993 (9th
Cir. 2008) (en banc). Here, the record indicates that the district court stated at
sentencing that the Guidelines range was 41 to 52 months, when the correct
Guidelines range was 41 to 51 months. Although the government contends that
this was a mere misstatement, because we cannot tell from the record whether the
district court relied on this incorrect range in selecting the 50-month sentence, we
vacate for resentencing. See United States v. Hammons, 558 F.3d 1100, 1105-06
(9th Cir. 2009).
Because we remand to the district court based on procedural error, we do not
address the substantive reasonableness of the district court’s sentence. However,
we note that, on remand, the district court should directly address Yellow Owl’s
mitigating arguments, including that her mother died of alcohol abuse when she
was a young child and that she was removed from her aunt’s care due to abuse, and
that she persevered in obtaining an education and providing for her children. See

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09-30300 3
Carty, 520 F.3d at 992-93 (“[W]hen a party raises a specific, nonfrivolous
argument tethered to a relevant § 3553(a) factor in support of a requested sentence,
then the judge should normally explain why he accepts or rejects the party’s
position.”).
VACATED AND REMANDED.

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