United States of America, Plaintiff-appellee, v. Gregory A. Payton, Defendant-appellant, 968 F.2d 22 (10th Cir. 1992)

Gregory A. Payton challenges the sentence imposed after he pled guilty to two counts of a three-count indictment for distribution of crack cocaine in violation of 21 U.S.C. § 841(a) (1). Three issues are presented. We reverse and remand on the first two but affirm on the third.

Mr. Payton first contends the trial court erred by adding a point to his criminal history score for a 1983 municipal ordinance violation for which he received a $75 fine. He is correct. United States v. Mondaine, 956 F.2d 939 (10th Cir. 1992).

Defendant next contends the district court erred by sentencing him to a four-year term of supervised release. The government concedes this error upon the basis of United States v. Padilla, 947 F.2d 893 (10th Cir. 1991), and United States v. Showalter, 933 F.2d 573 (7th Cir. 1991), which hold the maximum term of supervised release for a Class C felony is three years.

Finally, defendant urges that the inclusion of twenty-four grams of cocaine to determine his sentence violated his right to due process because he was neither charged nor convicted of the distribution alleged in Count III. We have already held such an inclusion is proper. United States v. Rutter, 897 F.2d 1558 (10th Cir.), cert. denied, --- U.S. ----, 111 S. Ct. 88 (1990).

The case is REMANDED for resentencing in accordance with this order and judgment.