                                                                           FILED
                            NOT FOR PUBLICATION                              OCT 5 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CALIX DAYS GREY,                                 No. 10-56489

               Petitioner - Appellant,           D.C. Nos.    2:10-cv-00607-SJO
                                                              2:07-cr-00938-SJO
  v.

UNITED STATES OF AMERICA,                        MEMORANDUM *

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                          Submitted September 27, 2011 **

Before:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       Federal prisoner Calix Days Grey appeals pro se from the district court’s

order denying her motion under 28 U.S.C. § 2255. We have jurisdiction under

28 U.S.C. § 2253, and we reverse 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).
      Grey contends that the sentencing court incorrectly applied the 2007 version

of the United States Sentencing Guidelines, rather than the version in effect at the

time of the offense, resulting in an increased sentencing range for her wire fraud

conviction. She further contends that her trial counsel’s failure to object to the

error constituted ineffective assistance of counsel.

      In denying Grey’s habeas motion, the district court did not address Grey’s

contention that she was sentenced using the incorrect version of the Guidelines.

Grey should have been sentenced under the Guidelines in effect at the time of her

offense. See United States v. Stevens, 462 F.3d 1169, 1170-71 (9th Cir. 2006). In

agreeing to use the base offense level from the 2007 version of the Guidelines,

counsel’s performance was deficient. See Strickland v. Washington, 466 U.S. 668,

687 (1984). Furthermore, counsel’s deficient performance was prejudicial

because there is a reasonable probability that Grey would have received a shorter

sentence had the correct version of the Guidelines been used. See id, 466 U.S. at

694; see also United States v. Munoz-Camerena, 631 F.3d 1028, 1031 (9th Cir.

2011). We therefore reverse the district court and remand for the district court to

resentence Grey using the correct version of the Guidelines.




                                           2                                    10-56489
      We construe Grey’s additional arguments as a motion to expand the

certificate of appealability. So construed, the motion is denied. See 9th Cir. R.

22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).

      REVERSED and REMANDED.




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