                                                                             FILED
                             NOT FOR PUBLICATION                              APR 22 2010

                                                                         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. 09-10215

               Plaintiff - Appellee,              D.C. No. 1:08-CR-00276-OWW

  v.
                                                  MEMORANDUM *
MICHAEL EUGENE HOLLIS,

               Defendant - Appellant.



                     Appeal from the United States District Court
                         for the Eastern District of California
                     Oliver W. Wanger, District Judge, Presiding

                               Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       Michael Eugene Hollis appeals from the 210-month sentence imposed

following his guilty-plea conviction for receipt or distribution of material involving

the sexual exploitation of a minor, in violation of 18 U.S.C. § 2252(a)(2). We have

          *
             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).
jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate Hollis’ sentence and

remand for resentencing.

      Hollis contends that the district court clearly erred when it applied a five-

level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(3)(B), for distributing

pornographic images “for the receipt, or expectation of receipt, of a thing of

value,” because there was no evidence in the record to support its finding that he

shared files in order to obtain any benefit. We agree that the record fails to

establish that Hollis distributed pornographic material in order to obtain faster

access to other pornographic images or any other benefit. See U.S.S.G.

§ 2G2.2(b)(3)(B) & cmt. n. 1; see also United States v. Carty, 520 F.3d 984, 993

(9th Cir. 2008) (en banc) (explaining that it would be procedural error for a district

court to choose a sentence based on clearly erroneous facts). Accordingly, we

vacate Hollis’ sentence and remand for further findings consistent with this

opinion.

      VACATED and REMANDED.




                                           2                                     09-10215
