                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 04 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-30371

             Plaintiff - Appellee,               D.C. No. 6:07-CR-00024-CCL

  v.
                                                 MEMORANDUM *
DANIEL DIETZ,

             Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                    Charles C. Lovell, District Judge, Presiding

                     Argued and Submitted December 9, 2009
                                Portland, Oregon

Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.




       Daniel Dietz appeals from the 196-month sentence imposed following his

guilty-plea conviction for enticement of a minor and transfer of obscene material to

a minor.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
On August 8, 2007, Dietz was indicted in Montana state court for sexual

intercourse without consent and sexual abuse of children. On November 27, 2007,

a Montana state court sentenced Dietz to 50 years for each count, 40 years of each

sentence suspended, with both sentences to be served concurrently.

      On November 15, 2007, Dietz was indicted in federal court for coercion and

enticement, in violation of 18 U.S.C. § 2422(b); transfer of obscene material to a

minor, in violation of 18 U.S.C. § 1470; and forfeiture, in violation of 18 U.S.C. §

2253. He pled guilty to these charges on April 11, 2008. At sentencing, the

district court determined that the sentencing range was 210-262 months. This

determination was based in part on the finding that Dietz had seven criminal

history points and a criminal history category of IV. The court awarded Dietz a

14-month credit “for the use of relevant conduct insofar as the state’s sentence

[was] concerned,” resulting in a sentence of 196 months on his § 2422(b) offense

and 120 months on his § 1470 offense.

      Dietz argues that the district court erred by assigning three criminal history

points for the state court conviction when the conduct underlying that state

conviction was part of the instant offense. This objection was not made properly in

the district court. We review the sentencing determination for plain error. U.S. v.




                                          2
Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009). Plain error is (1) error, (2) that is

plain, and (3) that affects substantial rights. Id.

      Dietz argues, and the government concedes, that Dietz was found to have

seven criminal history points when he should have had four. His criminal history

category was thus assessed as IV instead of III, and his sentencing range was

declared to be 210 to 262 months, instead of the correct range of 188 to 235

months. Dietz argues that this mistake requires resentencing. The government

argues that because Dietz was sentenced to 196 months – a sentence that would fall

inside of the correct range of 188 to 235 months – he cannot show prejudice and

must be bound by the 196-month sentence.

      “The Guidelines determine sentencing ranges by computing an offense level

and a criminal history category. Defendants receive criminal history points for

certain prior sentences.” U.S. v. Cruz-Gramajo, 570 F.3d 1162, 1167 (9th Cir.

2009) (internal quotation marks and citations omitted). “The term ‘prior sentence’

means any sentence previously imposed upon adjudication of guilt . . . for conduct

not part of the instant offense.” Id. (citing USSG § 4A1.2(a)(1)) (emphasis in

opinion). Under this definition, conduct that was part of the instant offense cannot

receive criminal history points. Id.




                                            3
      Dietz was given three criminal history points for his convictions in Montana

state court. Those Montana state court convictions were based on the same

conduct for which Dietz was being convicted in federal court, and on the same

conduct which supported his five-level sentencing enhancement. Dietz’s criminal

history points were elevated for conduct that was part of the instant offense. The

district court’s assignment of three points to Dietz was plain error.

      Dietz satisfies the third prong of the plain error test. In U.S. v. Mejia, we

held that the assignment of one too many criminal history points affects a

defendant’s substantial rights and is thus plain error. U.S. v. Mejia, 559 F.3d 1113

(9th Cir. 2009). The government’s argument is identical to one we have already

rejected. In U.S. v. Hammons, the government argued that “the district court’s

failure to calculate the appropriate guideline range does not constitute plain error

and did not affect substantial rights because the ultimate sentence (ten months) was

within the correct guideline range (four to ten months).” U.S. v. Hammons, 558

F.3d 1100, 1105-06 (9th Cir. 2009). Here, as in Hammons, the sentencing errors

affected substantial rights and constituted plain error. “The incorrect Criminal

History Category could easily have . . . led the district court to impose an

additional one month of imprisonment.” Id.




                                           4
      Because we agree with Dietz’s arguments for resentencing, we do not reach

his argument that the district court engaged in impermissible double counting when

it imposed a five-level enhancement under USSG Section 4B1.5(b)(1) for a pattern

of sexual activity while assessing three criminal history points based on the same

conduct.

      We VACATE Dietz’s sentence and REMAND to the district court for

resentencing. The mandate shall issue forthwith.

      VACATED AND REMANDED.




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