                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 06 2015

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


                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10264

               Plaintiff - Appellee,             D.C. No. 2:10-cr-00660-DGC-2

  v.
                                                 MEMORANDUM*
GEORGE CALVIN WINDLEY,

               Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    David G. Campbell, District Judge, Presiding

                     Argued and Submitted December 10, 2014
                             San Francisco, California

Before:       FISHER and PAEZ, Circuit Judges, and QUIST, Senior District
              Judge.**

       George Calvin Windley appeals his conviction and 180-month sentence

following a guilty plea to conspiracy to engage in sex trafficking, in violation of 18

U.S.C. §§ 1594(c), pursuant to a written plea agreement. We affirm the

conviction, vacate the sentence and remand for resentencing on an open record.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Gordon J. Quist, Senior District Judge for the United
States District Court for the Western District of Michigan, sitting by designation.
      1.     Windley argues that his plea was not knowing and voluntary because

the district court misadvised him about the terms of his plea agreement and his

entitlement to three points for acceptance of responsibility under U.S.S.G. § 3E1.1.

Because Windley failed to challenge the validity of his plea in the district court, we

review for plain error. See United States v. Sanders, 41 F.3d 480, 487 (9th Cir.

1994). Windley has failed to show that the district court’s error affected his

substantial rights. The district court awarded Windley two of the possible three

points. Windley’s counsel acknowledged at sentencing that any argument about

Windley’s entitlement to the third point was “really somewhat of an academic

exercise” because the plea agreement called for a sentence of 8 to 15 years.

Moreover, Windley has failed to show “a reasonable probability that, but for the

error, he would not have entered the plea.” United States v. Dominguez Benitez,

542 U.S. 74, 83 (2004). The district court informed Windley at sentencing that,

because the government did not move for the third point, “the most I can do in this

case if I believe the defendant has accepted responsibility is a two-level

adjustment.” Windley’s counsel acknowledged that “the one point for acceptance

the government would have to move for.”

      2.     The parties agree that the district court’s imposition of a lifetime term

of supervised release contravened the plea agreement and exceeded the statutory

maximum, resulting in an illegal sentence. There is no indication in the record that


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the district court intended to reject the plea agreement. See Fed. R. Crim. P.

11(c)(5). Therefore, we vacate Windley’s sentence and remand for resentencing

on an open record. See United States v. Espinoza-Morales, 621 F.3d 1141, 1152

(9th Cir. 2010); United States v. Matthews, 278 F.3d 880, 885–86, 889 (9th Cir.

2002) (en banc). The government has represented that, upon remand, it will move

for the extra point for acceptance of responsibility. On remand, the district court

may fully accept the plea agreement and abide by its terms or reject it and give

Windley an opportunity to withdraw his plea.

      Conviction AFFIRMED; sentence VACATED; and REMANDED for

resentencing.




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