                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 28 2011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. 10-10091

               Plaintiff - Appellee,             D.C. No. 2:08-cr-00329-JCM

  v.
                                                 MEMORANDUM *
INGREAT NORRIS SWIFT, a.k.a. Norris
Ingreat Swift,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                            Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Ingreat Norris Swift appeals from the conviction and 92-month sentence

imposed following his guilty-plea to interstate transportation with intent to engage

in criminal sexual activity (prostitution), in violation of 18 U.S.C. § 2421. We


          *
             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).
have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, vacate in part, and

remand for resentencing.

      Swift correctly asserts that the district court procedurally erred by

incorrectly calculating the applicable Guidelines range. See United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc); see also United States v. Takahashi,

205 F.3d 1161, 1167 (9th Cir. 2000); U.S.S.G. § 1B1.2, cmt., n.1. (2009). The

most appropriate offense guideline for the conviction at issue is U.S.S.G. § 2G1.1;

therefore it was error for the district court to rely on § 2G1.3 in calculating Swift’s

base offense level. We vacate Swift’s sentence and remand for resentencing

consistent with this opinion.

      Swift also contends that the district court erred by refusing to consider his

motion to withdraw his guilty plea, and by denying his motion to continue the

sentencing hearing to allow him to brief the issue. The district court did not abuse

its discretion by ruling that Swift’s unsupported claim of innocence was not a fair

and just reason to withdraw his guilty plea. See United States v. Turner, 898 F.2d

705, 713 (9th Cir. 1990). Accordingly, the conviction is affirmed. In light of the

foregoing disposition, the district court’s denial of a continuance is moot.

      AFFIRMED in part; VACATED in part; and REMANDED for

RESENTENCING.


                                           2                                     10-10091
