Opinion
No. 15-50118
04-18-2016
UNITED STATES OF AMERICA, Plaintiff - Appellant, v. THOMAS JEFFREY DAVIS, Defendant - Appellee.
NOT FOR PUBLICATION
D.C. No. 2:12-cr-01206-R-1 MEMORANDUM Appeal from the United States District Court for the Central District of California
Manuel L. Real, District Judge, Presiding Argued and Submitted April 4, 2016 Pasadena, California Before: FARRIS, BEA, and M. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. --------
The United States appeals defendant Thomas Jeffery Davis's 24-month sentence imposed following his guilty-plea conviction for engaging in business as a manufacturer and dealer in firearms without registration, in violation of 26 U.S.C. § 5861(a), and for possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.
The government argues that the district court's substantial downward departure from the applicable Guidelines range was procedural error because the sentence was chosen on the basis of clearly erroneous facts. The district court explained its decision by stating that it felt that Davis was not in the business of guns and that the confidential informant used by the government was the sole source of the guns and the allegations against Davis. These assertions are not supported by the record, which shows that Davis was the source of all firearms involved and that he sold those firearms for profit. A sentence based on clearly erroneous facts cannot be sustained. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).