USA v. Kevin Falcon, No. 10-30150 (9th Cir. 2011)
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FILED FEB 23 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 10-30150 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 fourlevel 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
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