FILED
NOT FOR PUBLICATION FEB 23 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30150
Plaintiff - Appellee, D.C. No. 4:09-cr-00118-SEH
v.
MEMORANDUM *
KEVIN FALCON,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Kevin Falcon appeals from the 110-month sentence imposed following his
guilty-plea conviction for being a felon in possession of a firearm, in violation of 8
U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, and we vacate
and remand for resentencing.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Falcon contends that the district court procedurally erred by applying a four-
level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6) when calculating the
Guidelines range. The government concedes that the district court should have
relied upon U.S.S.G. § 2K2.1(b)(6) application note 14(A) when determining
whether to apply the enhancement, rather than analogizing the circumstances of the
instant case to burglary and relying on U.S.S.G. § 2K2.1(b)(6) application note
14(B). The government further concedes that the factual record was insufficient to
support the enhancement. We remand to the district court to determine whether the
four-level enhancement is appropriate in light of the relevant application note and
this circuit’s precedent. See Gall v. United States, 552 U.S. 38, 51 (2007) (holding
that improperly calculating the Guidelines range constitutes “significant procedural
error”); see also United States v. Routon, 25 F.3d 815, 819 (9th Cir. 1994) (“[T]o
the extent that the government relies upon physical possession, it must show that
the firearm was possessed in a manner that permits an inference that it facilitated or
potentially facilitated – i.e., had some potential emboldening role in – a
defendant’s felonious conduct.”).
We decline to limit the district court to the existing record when
resentencing. See United States v. Matthews, 278 F.3d 880, 889 (9th Cir. 2002)
(en banc) (“[T]here is no reason to limit the district court’s authority to explore
2 10-30150
fully a factual issue at resentencing simply because it failed to do so during the first
proceeding as a result of an erroneous legal ruling.”).
Because we are remanding on the basis of an error in the Guidelines
calculations, we need not reach Falcon’s other arguments.
Sentence VACATED and REMANDED for resentencing.
3 10-30150