Case Information
*3
TALLMAN, Circuit Judge:
Valentino Johnson was convicted as a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) & 924(e), after an emergency 911 call reporting an attempted suicide led San Francisco police to discover a handgun at the apartment where Johnson was temporarily staying while on parole. Johnson challenges the denial of two motions to suppress evidence gathered during the warrantless search of the residence and a subsequent warrantless search of his cell phone, which revealed incriminating evidence tying him to the gun. Johnson also appeals the admission of witness testimony on hearsay grounds, and he claims a violation of his Confrontation Clause rights at trial. Finally, Johnson challenges the denial of his Daubert motion to exclude expert ballistics testimony further linking him to the weapon found by the police.
The government cross-appeals the district court’s determination at sentencing that Johnson’s prior conviction for armed robbery under California Penal Code (“CPC”) § 211(a) did not qualify as a “crime of violence” for purposes of establishing Johnson’s base offense level. U.S.S.G. §§ 2K2.1, 4B1.2. We affirm the district court on all issues raised in Johnson’s direct appeal, but vacate Johnson’s sentence based on the government’s cross-appeal and remand with instructions that a conviction under CPC § 211(a) qualifies as a crime of violence, warranting a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2).
I
On February 2, 2014, Valentino Johnson’s ex-girlfriend called 911 from Emeryville, California, to report that Johnson had threatened to kill himself with a gun. The caller informed the dispatcher that Johnson was at the home of his aunt, Luana McAlpine, [1] in San Francisco, and that she had received a “hysterical” call from McAlpine alleging Johnson had shot himself.
San Francisco Police Department (“SFPD”) officers were dispatched to McAlpine’s apartment in a Bayview District public housing project. Before they arrived, responding officers received additional information about Johnson. Dispatch informed the officers that Johnson did not live at the Bayview District apartment. Mobile data terminal readouts from patrol car computers showed that Johnson’s address on file with the California Department of Motor Vehicles was in Emeryville, across the bay, in Alameda County. But the readouts also showed that a domestic violence temporary restraining order had been issued on January 29, commanding that Johnson move out from the Emeryville address. Four days earlier, SFPD officers in the Bayview area, where McAlpine resided, had also received an All-Points Bulletin (“APB”) advising that Johnson was a suspect in a recent armed burglary involving a damaged 9mm handgun. According to the APB, Johnson was currently on mandatory parole supervision and had prior arrests for murder, attempted murder, assault, kidnapping, false imprisonment, domestic violence, carjacking, and robbery.
Arriving officers discovered the 911 call had been a false alarm. They saw Johnson—alive and unharmed—peering down from an upstairs window, and officers asked to speak with Johnson and McAlpine outside. Johnson and McAlpine complied, but the parties dispute what happened next. We McAlpine later explained that she is not actually Johnson’s blood relative, but rather that they are close friends who were at one time romantically involved.
6 U NITED S TATES V . J OHNSON credit the testimony admitted by the district court at the evidentiary hearing, after which the district judge made express credibility findings as to whose stories the fact- finder believed. SFPD Officer Wise testified that both McAlpine and Johnson stated that Johnson lived at the San Francisco residence. On direct examination, McAlpine testified she told police only she and her daughter, Norrisha Rivers, lived there. But on cross-examination, McAlpine testified she may have told officers that Johnson was either living or paroled there (and that Johnson had provided his parole officer with that address). The district court credited the officers’ testimony.
McAlpine said that within minutes, more than a dozen officers had arrived at the scene. None had guns drawn. According to Officers Cader and Wise, they asked McAlpine if officers could check inside the apartment to ensure no one had been hurt, and McAlpine consented. McAlpine, on the other hand, testified that she assumed the officers were conducting a parole search (pursuant to a condition of Johnson’s parole status, about which she previously knew), and therefore she felt she could not refuse entry to the officers. Wise testified he did not inform McAlpine that the search was a parole search. The search did not begin until McAlpine consented. The officers then proceeded to search the apartment without a warrant.
Inside the apartment, Officer Cader discovered a Taurus PT-92 semi-automatic 9mm pistol in a box in an upstairs bedroom used by Norissha Rivers. The magazine of the gun was missing, and part of the gun’s heel was damaged. Officers also discovered 68 rounds of various types of ammunition in a dry bag on a second-floor balcony outside Rivers’s bedroom. In Rivers’s bedroom, they also found Johnson’s clothing, mail, and three prescription bottles in his name, as well as clothing belonging to Rivers’s boyfriend, Jakieth Martin.
Outside the apartment, Sergeant Plantinga asked McAlpine in a recorded conversation about the gun’s ownership. McAlpine responded, “I know it’s not mine, I know it’s not my daughter’s, and there’s only one other person it could’ve been, and that is Valentino Johnson.” Plantinga had McAlpine sign a written consent form *6 authorizing the search. McAlpine testified that, around the time of her conversation with Sergeant Plantinga, another officer threatened that she could lose her public housing if she was not honest and truthful. The officers denied that threat, stating that only after the gun was found did McAlpine become upset because it could cause her problems with the housing authority. The district court explicitly found that the testimony of the several officers was more credible than that of McAlpine.
During the search, officers handcuffed Johnson outside the apartment. Lieutenant Braconi explained to Johnson that SFPD was responding to a 911 call from his ex-girlfriend about an attempted suicide. Johnson told Lieutenant Braconi to check the call logs and text messages on his cell phone to prove he had not contacted his ex-girlfriend or threatened to kill himself. Braconi verified that no calls were made from Johnson’s cell phone around the time of the 911 call.
After the gun was discovered, Johnson was taken into custody. During an interview with Sergeants Jonas and Plantinga at the Bayview police station, Johnson said he had been staying with McAlpine because he had fought with his ex-girlfriend and later had been served with a restraining order. He told Jonas and Plantinga to again “look at the text messages on [his] phone” to verify that he had tried to reconcile with his ex-girlfriend around January 21, 2014. After the interview, Johnson remained in custody and his phone was given to Sergeant Jonas for forensic analysis.
Three days later, on February 5, 2014, SFPD’s multimedia forensics unit reported to Jonas that they were unable to make a digital copy of the phone’s contents because the phone was too new for the unit’s software. Instead, Jonas searched the phone by hand without first obtaining a warrant. Sergeant Jonas scrolled through old text messages sent from Johnson’s phone, making screen shots of relevant information. He found an incriminating text sent on January 28, 2014, that read: “Who you know that has 9- mm clips? I just busted mine. It’s a PT-92 Taurus. . . . So how do I get it?” One year later, on February 2, 2015, after Johnson had been indicted on federal charges but before trial, the Bureau of Alcohol, Tobacco, Firearms & Explosives (“ATF”) obtained a search warrant for the phone, and the text message was admitted at trial.
II
On July 31, 2014, a federal grand jury indicted Johnson on a single count of being a felon in possession of the *7 handgun, in violation of 18 U.S.C. §§ 922(g)(1) & 924(e). [2] Before trial, Johnson moved to suppress the handgun and text messages found on his cell phone as the products of illegal searches. After conducting an evidentiary hearing to establish the facts, the district court denied the motions on the grounds that McAlpine had consented to the search of The grand jury later returned a superseding indictment, adding an additional count of obstruction of justice, 18 U.S.C. § 1512(c)(2), after Johnson was recorded on jail telephones suborning perjury from McAlpine as to who owned the gun. The district court severed that count before trial on the gun charge, and the government voluntarily dismissed it after the jury returned a guilty verdict on the felon in possession charge. her apartment and that the warrant requirement does not apply to searches of parolees’ cell phones. The court also allowed into evidence at trial, over objection, testimony from Jonas regarding McAlpine’s statement to Sergeant Plantinga that the gun must have belonged to Johnson. Additionally, the court denied Johnson’s motion to exclude expert testimony from SFPD’s ballistics expert, Mark Proia. After a five-day trial, the jury returned a guilty verdict.
Johnson was sentenced on April 4, 2016. When calculating Johnson’s base offense level, the district court declined to classify Johnson’s prior armed robbery conviction under CPC § 211(a) as a crime of violence for purposes of the career-offender enhancement. See U.S.S.G. § 2K.1(a)(2). The court therefore assumed Johnson had only one prior conviction for a crime of violence, a 1994 conviction for assault with a firearm, and calculated the base offense level as 20. See U.S.S.G. § 2K.1(a)(4)(A). The court applied a two-level enhancement for the attempted obstruction of justice. See U.S.S.G. § 3C1.1. With a criminal history category of V, the court calculated the Guidelines range as 77 to 96 months, and imposed a sentence of 96 months in prison. The district court entered final judgment, and Johnson timely appealed. The government cross-appealed the district court’s sentencing determination. We have jurisdiction under 28 U.S.C. § 1291.
III
Johnson first argues that the warrantless searches of his
cell phone violated his Fourth Amendment rights. He asks
us to find that
Riley v. California
,
The government responds that Riley and Lara do not apply in the parolee search context because the balance of privacy interests and factual circumstances in this context are different. Alternatively, the government argues that, even if the Constitution normally requires warrants for searches of parolees’ cell phones, no constitutional violation occurred here, because: (1) Johnson consented to a search of his phone; (2) any constitutional error was cured by the later-obtained federal warrant; and (3) the searching officers’ conduct falls under the good-faith exception to the exclusionary rule given the state of the law at the time of the trial. Because Johnson’s status as a parolee significantly diminishes his privacy interests compared to the defendants in Riley and Lara , we affirm the district court’s ruling. [3]
A
We review the denial of Johnson’s suppression motion
de novo
, and “the district court’s factual findings for clear
error.”
United States v. Sullivan
,
*9
the other, the degree to which [the search] is needed for the
promotion of legitimate governmental interests.”
Lara
,
815 F.3d at 610 (alterations in original) (quoting
United
States v. Knights
,
We have repeatedly recognized that status as a parolee
[4]
significantly diminishes one’s privacy interests as compared
to the average citizen.
See Samson v. California
, 547 U.S.
843, 850 (2006). “[P]arole is an established variation on
imprisonment of convicted criminals” and granted only “on
the condition that the prisoner abide by certain rules during
the balance of the sentence.”
Id.
(quoting
Morrissey v.
Brewer
,
“[R]estrictions on a parolee’s
liberty are not
unqualified,” however, and parolees still enjoy limited
[4]
Although Johnson was classified as being under “mandatory
supervision” by a parole officer under CPC § 1170(h)(5)(B), we have
previously held that “the State’s interest in supervising offenders placed
on mandatory supervision is comparable to its interest in supervising
parolees.”
See United States v. Cervantes
,
[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.
Id.
at 2489.
Riley
’s emphasis on the almost
sui generis
nature of cell phones weighed heavily in
Lara
. In that case,
despite the defendant’s status as a probationer, and even
For example, California courts have held that parole searches
violate the Fourth Amendment if they are “arbitrary, capricious, or
harassing.”
People v. Reyes
,
As previously noted, however, the government’s interest
in supervising parolees is “substantial.”
Samson
, 547 U.S.
at 853. Those interests include combating recidivism,
promoting reintegration, and effectively detecting parole
violations.
Id.
at 853–54. Requiring officers to obtain a
warrant before searching a parolee’s cell phone would often
undermine the state’s ability to supervise effectively
thousands of parolees and prevent concealment of criminal
conduct as in the case here.
See id.
at 854.
Lara
held that
these governmental interests were ultimately insufficient to
overcome a probationer’s substantial privacy interest in his
cell phone, although the government’s interests were
reduced when the suspected probation violation (missing an
appointment with the probation officer) was not a serious or
violent crime.
See
Despite these significant competing interests, we hold *11 that the warrantless searches of Johnson’s cell phone were constitutionally reasonable, given Johnson’s status as a parolee. Johnson’s parolee status may be of even greater concern here due to his lengthy and serious criminal history involving violent offenses. But most persons released on parole supervision are completing a sentence that involved incarceration for serious offenses. We do not think a workable rule can be fashioned for officers on the street based on an argument that police should first examine the severity of the parolee’s prior criminal record in determining whether or not they may conduct a warrantless search of a parolee or his cell phone when the parolee is subject to a search condition. [6]
While privacy interests in cell phones are significant,
Johnson’s parole status alone distinguishes our case from
Lara
and
Riley
. It is well established that parolees have
reduced privacy interests compared to probationers,
see, e.g.
,
Samson
,
Before commencing parole, the parolee is informed and must acknowledge in writing that he and his property are subject to the warrantless search condition under CPC § 3067(b)(3). Both McAlpine and Johnson admitted they were aware of this condition of Johnson’s mandatory parole supervision before police arrived at the Bayview apartment.
U NITED S TATES V . J OHNSON 15
The government’s interests in searching Johnson’s cell
phone were also weightier than the governmental interests at
stake in
Lara
, where the cell phone search occurred after the
defendant missed a probation meeting. Accordingly, we
held that this violation was “worlds away from the suspected
crimes”—such as arson and homicide—that had justified
warrantless searches of probationers’ homes in other cases.
Id.
at 612 (distinguishing
Knights
, 534 U.S. at 112, and
United States v. King
,
B
Independent of the warrantless searches of his cell phone, Johnson alleges that his Fourth Amendment rights were violated because the cell phone searches conducted on February 5, 2014, and February 2, 2015, unconstitutionally prolonged the seizure of his phone. “An unreasonable delay between the seizure of a package and obtaining a search warrant may violate [a] defendant’s Fourth Amendment rights.” Sullivan , 797 F.3d at 633. “The touchstone is reasonableness.” Id.
We hold the delays in searching Johnson’s phone were
not unreasonable. Johnson had reduced privacy interests in
his phone given his parolee status, and Johnson never sought
return of his phone while he was in continuous custody since
he was arrested on February 2, 2014.
See id.
at 633–34
(holding that a 21-day delay before the search of a parolee’s
laptop was reasonable). The government obtained the phone
*13
lawfully, and there is no evidence the delays were the result
of dilatory tactics by the state.
See United States v. Mulder
,
IV
Johnson next argues that the district court erred in finding (1) that McAlpine gave valid consent to the search of her apartment, or (2) in the alternative, that the responding officers conducted a lawful parole search. Accordingly, he argues that the handgun discovered during the search of McAlpine’s residence should have been suppressed. The factual findings of the district court resolve the issue. Despite the conflicting testimony of the witnesses reflected in the record, we hold that the district court did not clearly err in finding that McAlpine gave valid verbal consent for the search because the district court credited the officers’ testimony and not that of the defense witnesses.
We review a district court’s factual determination of
valid consent to a search for clear error.
United States v.
Washington
, 490 F.3d 765, 769 (9th Cir. 2007). The
government bears “the burden of proving that the consent
was, in fact, freely and voluntarily given.”
Bumper v. North
Carolina
,
(1) whether defendant was in custody; (2) whether the arresting officers have their guns drawn; (3) whether Miranda warnings have been given; (4) whether the defendant was told he has a right not to consent; and (5) whether defendant was told a search warrant could be obtained.
United States v. Russell
,
Here, it is undisputed that McAlpine was not in custody
when she was questioned, and officers did not have their
weapons drawn. No
Miranda
warnings were given, but “[i]t
would . . . make little sense to require that
Miranda
warnings
. . . be given by police before requesting consent.”
Russell
,
664 F.3d at 1281 (quoting
United States v. Vongxay
,
Johnson argues the record establishes that the search of McAlpine’s residence was conducted as a parole search, and the government has tried post hoc to justify the warrantless search as a consent search. He relies on McAlpine’s testimony that one of the officers told her they would conduct a parole search, and therefore she felt she “had no other choice” but to allow the officers entry. He also points to the testimony of Officers Vannuchi, Ortiz, Basurto, Plantinga, and Cader, who all testified they understood they were conducting a parole search. Johnson further asserts that McAlpine could not give valid consent because she felt pressured by the number of officers present, and she was threatened with having her public housing taken away. Johnson also contends that racial dynamics played a role.
Although there is evidence to support Johnson’s contention that later-arriving officers believed they were conducting a parole search, the officers who first interviewed McAlpine—Wise and Cader—testified otherwise. They both said that they asked McAlpine if she would permit officers to check the apartment to make sure no one was hurt and to secure any weapon, and she agreed. Wise’s incident report reflects this account. Wise also testified that he did not hear any officer tell McAlpine that they were conducting a parole search. Sergeant Plantinga testified he thought it was both a parole search and a consent search. Regarding the alleged threat to McAlpine’s continued public housing eligibility, the district court credited evidence that McAlpine became upset about losing her housing after the gun was discovered, not before the search occurred. Prior to that development, officers testified that relations with McAlpine were cordial and polite when she gave consent.
Given this conflicting testimony and the district court’s conclusion that the officers testified more credibly, we hold that the district court did not clearly err in finding McAlpine gave valid verbal consent for the search. [7] The record does not compel the conclusion that McAlpine could not validly consent because the officers told her they were conducting a parole search. Even if later-arriving officers assumed they were conducting a parole search, the record supports the court’s factual finding that McAlpine first verbally consented to the search after Wise and Cader asked if they could enter the residence to ensure that everyone inside was safe.
The district court properly concluded that McAlpine’s written consent, provided after the search had already occurred, did not retroactively establish valid consent. United States v. Howard , 828 F.2d 552, 556 (9th Cir. 1987). It is, however, corroborative of the officers’ testimony that she had earlier consented orally to the search. *16 20 U NITED S TATES V . J OHNSON
V
Johnson also challenges the admission of testimony at trial from Sergeant Jonas about McAlpine’s out-of-court statements to Plantinga in a recorded interview. Jonas testified, “[McAlpine] said there was only one person [the gun] could belong to, and that was Valentino Johnson.” Johnson contends that Jonas’s testimony was hearsay and violated Johnson’s Confrontation Clause rights. But Johnson’s defense theory offered to the jury was that the gun belonged to his cousin, Jakieth Martin. Given the government’s need to rebut Johnson’s third-party culpability defense, we hold that McAlpine’s statements were not hearsay and did not violate his constitutional rights. See Tennessee v. Street , 471 U.S. 409, 414 (1985) (permitting evidence as nonhearsay when used to rebut the defense theory).
We review the interpretation of the rule against hearsay
de novo
,
United States v. Mitchell
,
Hearsay is an out-of-court statement offered for the truth
of the matter asserted. Fed. R. Evid. 801(c). The
Confrontation Clause forbids “admission of testimonial
statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had had a prior
opportunity
for cross-examination.”
Crawford v.
Washington
,
Here, McAlpine’s statements to Sergeant Plantinga were
clearly testimonial, because they were “[s]tatements taken
by [a] police officer[] in the course of interrogations.”
See
*17
Crawford
,
Courts must exercise caution to ensure that out-of-court
testimonial statements, ostensibly offered to explain the
course of a police investigation, are not used as an end-run
around
Crawford
and hearsay rules, particularly when those
statements directly inculpate the defendant.
See, e.g.
,
United
States v. Silva
, 380 F.3d 1018, 1020 (7th Cir. 2004)
(“Allowing agents
to narrate
the course of
their
investigations, and thus spread before juries damning
information that is not subject to cross-examination, would
go far toward abrogating the defendant’s rights under the
sixth amendment and the hearsay rule.”). We previously
have rejected the government’s proffered nonhearsay
rationale when, for example, explaining that the course of
the police investigation was not relevant to the government’s
case.
See, e.g.
,
United States v. Dean
,
To ensure further that McAlpine’s out-of-court statements would not be considered for their truth, the district court properly and contemporaneously instructed the jury that the statements were to be considered only for nonhearsay purposes. The jury was again reminded of this admonition in the final jury instructions. And the prosecution made no reference to McAlpine’s statements during closing arguments. Cf. Ocampo v. Vail , 649 F.3d 1098, 1112–13 (9th Cir. 2011) (finding that the prosecution’s reliance on out-of-court statements during *18 closing arguments indicated that the statements were intended for a hearsay purpose). The district court therefore did not abuse its discretion in admitting Jonas’s testimony for a legitimate nonhearsay purpose.
But even if Jonas’s testimony was inadmissible hearsay, we find that any error was harmless and did not affect Johnson’s substantial rights. See United States v. Blandin , 435 F.3d 1191, 1195 (9th Cir. 2006). Setting aside McAlpine’s statements, the government presented compelling additional evidence to link Johnson to the gun, including the text messages on Johnson’s phone, the evidence from the prior armed burglary, and ballistics evidence.
VI
Finally, Johnson appeals the denial of his Daubert motion to exclude expert testimony from an SFPD firearms examiner, Mark Proia, as well as a written ballistics analysis produced by the SFPD firearms unit. [8] This evidence linked a test bullet fired from the PT-92 Taurus found at the San Francisco residence to a live round recovered from the scene of a burglary to which Johnson’s brother pled guilty in 2011. Proia’s testimony and the written report relied on the Association of Firearm and Toolmark Examiners (“AFTE”) methodology, which involves making feature-comparisons of bullet markings (“striations”) to determine if different bullets were fired from the same gun. [9] Johnson argues that Proia misapplied the AFTE methodology and that the methodology is inherently unreliable under the Daubert factors. [10] We review the district court’s admission of expert [8] The government initially planned to offer expert testimony through Tasha Smith, an SFPD firearms examiner trainee who authored the ballistics report under Proia’s supervision. Johnson’s Daubert motion thus focused on Smith’s planned testimony, even though Proia ultimately testified at trial.
[9]
Specifically, the AFTE methodology involves identifying three
types of toolmarks: (1) class characteristics, which are features shared
by many weapons of the same type; (2) individual characteristics, which
are unique to a particular weapon; and (3) subclass characteristics, which
may be common to a small group of firearms manufactured at the same
time.
United States v. Monteiro
,
(2) whether the method “has been subjected to peer review and
*19
24
U NITED S TATES V . J OHNSON testimony for abuse of discretion.
United States v. Cazares
,
First, Johnson contends that Proia misapplied the AFTE
methodology, because Proia testified that the test-fired bullet
matched a bullet recovered from the 2011 crime scene “to a
reasonable degree of ballistics certainty,” and because the
written report in no way qualified its conclusion that the two
bullets matched. He points out that the National Academy
of Sciences has sharply criticized the AFTE methodology for
failing to incorporate standardized protocols and for over-
reliance on the subjective judgments of examiners. Indeed,
in light of these flaws in the AFTE methodology, a number
of district courts have required that experts clarify that
bullets can be matched only to a “reasonable degree of
ballistics certainty”—disallowing experts from presenting
their conclusions with absolute certainty.
See, e.g.
,
United
States v. Cerna
, No. CR 08-0730 WHA,
v. Casey
,
Here, although the written report did not qualify its test results, Proia’s testimony made clear he could conclude only that the test-fired bullet matched the bullet from the 2011 crime scene to a “reasonable degree of ballistics certainty.” Proia also clarified in his live testimony that the written report’s conclusions were not absolutely certain. Additionally, Johnson was allowed to cross-examine Proia on the more precise meaning of “reasonable degree of ballistics certainty,” and to present his own ballistics expert witness. The district court therefore provided adequate safeguards to allow the jury properly to evaluate the probative value of Proia’s opinion testimony and the written report.
Second, Johnson contends that the AFTE is inherently unreliable and fails to satisfy the Daubert factors. The district court cited a number of cases and scientific sources establishing that that the AFTE methodology satisfies Daubert . Conversely, Johnson has not cited a case in which AFTE ballistics testimony was excluded altogether. Because the district court has “broad latitude” to make admissibility determinations, Estate of Barabin , 740 F.3d at 463, we hold that the district court did not abuse its discretion in denying Johnson’s Daubert motion.
VII
The government cross-appeals the district court’s determination at sentencing that Johnson’s prior armed robbery conviction under CPC § 211(a) does not qualify as a “crime of violence” within the meaning of U.S.S.G. §§ 2K2.1 and 4B1.2. Because the district court held that Johnson’s prior armed robbery conviction was not a crime of violence, it adopted the base offense level assuming that Johnson had only one prior conviction for a crime of a violence rather than two. As a result, Johnson’s base offense level was 20 rather than 24. Compare U.S.S.G. § 2K2.1(a)(2), with U.S.S.G. § 2K2.1(a)(4)(A).
We recently addressed this issue in
United States v.
Barragan
, holding unequivocally that a prior California
robbery conviction is categorically a “crime of violence” for
*21
purposes of the career offender sentencing provision.
VIII
We AFFIRM the district court’s ruling on each of the issues raised in Johnson’s direct appeal; VACATE Johnson’s sentence; and REMAND for resentencing on a properly calculated total offense score.