FILED
NOT FOR PUBLICATION OCT 04 2011
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10268
Plaintiff - Appellee, D.C. No. 1:08-cr-00384-OWW
v.
MEMORANDUM *
KAREN JEAN FREYLING,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Submitted September 27, 2011 **
Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.
Karen Jean Freyling appeals from the 121-month sentence imposed following
her jury-trial conviction for conspiracy, fraud, smuggling, and various other offenses
related to the operation of a business that sold unauthorized DVDs over the Internet,
as well as for Social Security fraud. We have jurisdiction under 28 U.S.C. § 1291,
and we vacate and remand.
*
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).
Freyling contends that when the district court modified her advisory
Sentencing Guidelines range at the sentencing hearing of her co-defendant, she was
denied: (1) her right under Fed. R. Crim. P. 43 to be present at sentencing, and (2)
her Sixth Amendment right to counsel. We agree and conclude that remand is
necessary. See United States v. Berger, 473 F.3d 1080, 1094 (9th Cir. 2007); United
States v. Hamilton, 391 F.3d 1066, 1070 (9th Cir. 2004).
The government does not oppose a remand but requests that we limit its scope
to allow the district court merely to clarify which Guidelines range it relied upon in
choosing the 121-month term of imprisonment. We reject such a limitation;
however, remand shall be limited to consideration of the issues raised in this appeal.
Our resolution of these issues renders it unnecessary to resolve Freyling’s
remaining contentions.
VACATED AND REMANDED.
2 10-10268