                                                                                FILED
                            NOT FOR PUBLICATION                                 MAY 09 2012

                                                                             MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 10-50152

              Plaintiff - Appellee,               D.C. No. 2:02-cr-00157-TJH-6

  v.
                                                  MEMORANDUM*
TY FOWLES,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                  Terry J. Hatter, Senior District Judge, Presiding

                              Submitted May 7, 2012**
                                Pasadena, California

Before: PREGERSON, GRABER, and BERZON, Circuit Judges.

       Defendant-Appellant Ty Fowles pled guilty to racketeering in violation of

18 U.S.C. § 1962(c) and racketeering conspiracy under 18 U.S.C. § 1962(d). He

appeals his sentence, arguing: (1) the district court erred in treating each of the


        *
             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).
attempted murders underlying Fowles’ RICO convictions separately, rather than

grouping them for purposes of calculating his offense level; (2) the district court

should have treated Fowles’ attempted murders of Ryan and Tobius as prior

sentences; and (3) the district court erred in failing to reduce Fowles’ sentence for

time he served in state custody. We affirm.

      1.     The district court did not err in treating each of the attempted murders

underlying Fowles’ RICO convictions separately for purposes of calculating his

offense level. The Sentencing Guidelines explicitly exclude attempted murder

from the offenses that are to be grouped in calculating a defendant’s offense level.

U.S.S.G. § 3D1.2.

      Furthermore, because this court’s remand to the district court for re-

sentencing was “upon an open record,” the district court was permitted to

“consider any matters relevant to sentencing, even those that may not have been

raised at the first sentencing hearing.” United States v. Matthews, 278 F.3d 880,

885 (9th Cir. 2002) (en banc). Therefore, although the district court had previously

grouped the offenses underlying Fowles’ RICO convictions, it was permitted to

reconsider such grouping upon re-sentencing.

      2.     “Certain conduct may be charged in the count of conviction as part of

a ‘pattern of racketeering activity’ even though the defendant has previously been


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sentenced for that conduct.” U.S.S.G. § 2E1.1 cmt. n.4. If the defendant was

convicted for that conduct “prior to the last overt act” of the RICO offense for

which he is being sentenced, that conduct is treated “not as part of the instant

offense,” but rather “as a prior sentence.” Id.

      The only offense underlying Fowles’ RICO convictions for which he was

previously sentenced was the attempted murder of Singleton. Therefore, the

district court did not err in treating the attempted murder of Singleton as a prior

sentence, while classifying the attempted murders of Ryan, Tobius, and Perkins as

“part of the instant offense.”

      3.     Fowles argues that because the district court, when it initially

sentenced him, took into account the time he served in state custody pursuant to his

state conviction for the attempted murder of Singleton, it erred in failing to do so

upon re-sentencing. This argument fails for two reasons: First, as previously

noted, the remand for re-sentencing was on an open record, and therefore the

district court was permitted to re-sentence Fowles “as if it were sentencing de

novo.” Matthews, 278 F.3d at 885–86. Furthermore, the record demonstrates that

the district court did reduce Fowles’ sentence based on the time he served pursuant

to the state conviction. The judge explicitly stated: “I think that the maximum

would have been 20 years, 240 months, but I’m going to reduce that further


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because of the state conviction underlying. And I’m going to sentence you to 15

years . . . .”

       AFFIRMED.




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