OpenJurist

16 F3d 417 United States v. Deanovich

UNITED STATES of America, Plaintiff-Appellee,
v.
David Kirkland DEANOVICH, Defendant-Appellant.

No. 93-5120.

United States Court of Appeals, Tenth Circuit.

Feb. 7, 1994.

16 F.3d 417
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before SEYMOUR, Chief Judge, McKAY and BALDOCK, Circuit Judges.

ORDER AND JUDGMENT1

McKAY

1

The parties have agreed that this case may be submitted for decision on the briefs. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.2. The case is therefore ordered submitted without oral argument.

2

Defendant appeals his sentence of forty-nine months imprisonment stemming from his convictions of conspiracy to commit armed bank robbery and use of a firearm during a crime of violence. Defendant alleges that the district court improperly imposed a fine to offset costs of imprisonment without having first imposed a punitive fine as required by Tenth Circuit precedent. See United States v. Edmonson, 962 F.2d 1535, 1548 (10th Cir.1992); United States v. Eves, 932 F.2d 856, 860 (10th Cir.), cert. denied, 112 S.Ct. 236 (1991); United States v. Estrella, 930 F.2d 824, 826 (10th Cir.1991); United States v. Labat, 915 F.2d 603 (10th Cir.1990). Defendant also contends that the district court violated Federal Rule of Criminal Procedure 32(a)(1)(A) by failing to determine whether Defendant had an opportunity to read and discuss the presentence report.

3

The government confesses error in this case on both counts and requests that we remand this case for resentencing. We agree with Defendant and the government that the district court violated existing Tenth Circuit precedent and Federal Rule of Criminal Procedure 32, and thus remand for resentencing.

4

REVERSED AND REMANDED.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. --- F.R.D. ----