United States of America, Plaintiff-appellee, v. Barry Patrick Brown, Defendant-appellant, 943 F.2d 55 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 943 F.2d 55 (9th Cir. 1991) Submitted Sept. 5, 1991. *Decided Sept. 10, 1991

Before CANBY, DAVID R. THOMPSON and TROTT, Circuit Judges.


Barry Patrick Brown appeals his sentence, imposed following a guilty plea, for possession and aiding and abetting possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2.1  He contends that the district court erred by failing to state its reasons for imposing a sentence in the middle of the applicable United States Sentencing Guidelines range. We have jurisdiction under 28 U.S.C. § 1291 and we vacate the sentence and remand for resentencing.

"18 U.S.C. § 3553(c) requires a statement in open court of the reasons for choosing a sentence within the sentencing range if that range exceeds 24 months." United States v. Upshaw, 918 F.2d 789, 792 (9th Cir. 1990), cert. denied, 111 S. Ct. 1335 (1991). The district court's failure to make such a statement requires resentencing. Id. at 793.

Here, Brown's Guidelines range for the methamphetamine count was calculated at 168 to 210 months incarceration. Brown contends, and the government concedes, that the district court imposed a 192-month sentence without stating its reasons. We agree, and must vacate Brown's sentence and remand for the district court to state its reasons in accordance with 18 U.S.C. § 3553(c).



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Brown was also sentenced for failure to appear in violation of 18 U.S.C. § 3146(a) (1), but does not dispute that sentence on appeal