                            NOT FOR PUBLICATION                          FILED
                                                                          JAN 6 2017
                    UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,                        No. 14-17293

               Plaintiff-Appellee,                D.C. 2:13-cv-01593-RCJ

  v.                                              MEMORANDUM*

 CARL CHESTER,

               Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Robert C. Jones, District Judge, Presiding

                          Submitted December 13, 2016**
                             San Francisco, California

Before: BERZON and MURGUIA, Circuit Judges, and BLOCK,*** District Judge.




       *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
        The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
       ***
         The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
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      On February 18, 2015, the Court granted the request for a certificate of

appealability submitted by Carl Chester as to one issue: “[W]hether appellate

counsel rendered ineffective assistance by failing to argue that the Fair Sentencing

Act [‘FSA’] applied at the 2012 resentencing, including whether appellant is

entitled to a reduced term of supervised release, or reclassification of his

convictions.” We vacate and remand.

      1.     At the time of Chester’s resentencing, the FSA categorized two of his

three convictions as Class B felonies and established a range of five-to-forty years’

imprisonment and a minimum of four years’ supervised release for such felonies.

21 U.S.C. § 841(b)(1)(B)(iii). The cover page of Chester’s Presentence

Investigation Report (“PSR”), however, incorrectly classified these two

convictions as Class A felonies subject to higher minimums, and Chester’s counsel

did not contest this oversight. Informed at the sentencing hearing of the PSR’s

mistake as to the FSA’s minimum for imprisonment, but not as to supervised

release, the district court sentenced Chester to 168 months in prison and five years’

supervised release.

      2.     As Chester’s appellate counsel contends and the Government

concedes, the district court’s sentence of supervised release was based on its

mistaken belief as to the FSA’s statutory minimum, and Chester’s counsel failed to

correct this misimpression. Accordingly, both parties agree that the case should be

                                           2
remanded so as to allow the district court to make a fully informed decision

regarding Chester’s term of supervised release.

         3.   In contrast, both Chester and the Government apprised the district

court as to the proper statutory minimum term of imprisonment for the two

misclassified felony convictions. When the district court sentenced Chester to 168

months, it selected a term within the proper statutory range with full knowledge of

the applicable minimum term. As such, in regards to his prison sentence, Chester

could not have been prejudiced by his counsel’s failure, so we deny the petition as

to the prison sentence.

         4.   The uncertified issues raised in Chester’s opening brief are without

merit.

         VACATED and REMANDED.




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