                                                                           FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES COURT OF APPEALS                      April 8, 2009
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT
                                                                      Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 08-3257
          v.                                              (D. Kansas)
 SILAS SWOPES,                                (D.C. No. 2:08-CR-20035-KHV-2)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Silas Swopes pleaded guilty to one count of possession with intent to

distribute 100 grams or more of heroin within 1000 feet of a school, in violation

of 21 U.S.C. §§ 841 and 860, and one count of distribution of heroin within 1000


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
feet of a school, also in violation of 21 U.S.C. §§ 841 and 860. The district court

sentenced Swopes to a term of imprisonment of 262 months, a sentence at the

bottom of the range set out in the advisory Sentencing Guidelines. On appeal,

Swopes argues, inter alia, that his sentence is procedurally unreasonable because

the district court applied a presumption of reasonableness to the advisory

Sentencing Guidelines and did not adequately consider the statutory sentencing

factors set out in 18 U.S.C. § 3553(a). In an exhibition of admirable candor, the

United States concedes the sentence imposed by the district court is procedurally

unreasonable and recognizes the district court’s procedural errors are not

harmless.

      Upon an independent review, we agree that the district court’s sentence is

procedurally unreasonable. See United States v. Resendiz-Patino, 420 F.3d 1177,

1182 (10th Cir. 2005) (noting this court is not bound by a party’s concession of

error). In particular, in a post-judgment document, the district court specifically

stated it had committed “clear error” by affording a presumption of correctness to

the advisory Guidelines range and by failing to adequately consider the

sentencing factors set out in § 3553. Gall v. United States, 128 S. Ct. 586, 596-97

(2007) (holding that while appellate courts are entitled to presume a within-

Guidelines sentence is reasonable, a district court may not presume the Guidelines

range is reasonable, but must instead “make an individualized assessment based

on the facts presented”); id. at 591 (describing the failure to consider the § 3553

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factors as a “significant procedural error”). Because the district court committed

procedural error, and because the government concedes that error is not

harmless, 1 we REMAND this matter to the district court to vacate Swopes’s

sentence and resentence him in a manner consistent with this opinion.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




      1
        United States v. Kaufman, 546 F.3d 1242, 1270 (10th Cir. 2008) (holding
that the “burden of proving harmlessness is on the beneficiary of the error”).

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