                                                                              FILED
                            NOT FOR PUBLICATION                                MAR 21 2013

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




                             FOR THE NINTH CIRCUIT


                                                   No. 12-50054
UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                D.C. No. 2:11-cr-00025-GHK-1

       v.
                                                   MEMORANDUM          *

JOSEPH FORD PROCTOR,

              Defendant - Appellant.


                     Appeal from the United States District Court
                        for the Central District of California
                      George H. King, District Judge, Presiding

                        Argued and Submitted March 7, 2013
                               Pasadena, California


Before: HURWITZ, THOMAS, Circuit Judges, and BEISTLINE,** Chief District
Judge.

      Joseph Proctor appeals a sentence on convictions for two counts of

subscribing to a false tax return, 26 U.S.C. § 7206(1), arguing that the district court

       *
        This disposition is not appropriate for publication and is not precedent
       except as provided by 9th Cir. R. 36-3.

       **
         The Honorable Ralph R. Beistline, Chief United States District Judge for
       the District of Alaska, sitting by designation.
                                            1
miscalculated the Sentencing Guidelines’ advisory range of incarceration before

imposing a sixty-month sentence. Adopting the tax-loss determination suggested

by the probation office, the court found that the tax loss caused by Proctor’s

offenses exceeded $400,000.00. Despite not objecting at trial, Proctor now argues

that the record does not support a tax-loss finding of more than $400,000.00, and

the correct advisory range should have been forty-one to fifty-one months.

       The parties now agree that Proctor’s domicile was in California during the

2002 and 2003 tax years. Because the parties disagree concerning the impact the

domicile determination should have on Proctor’s sentence, this matter is

VACATED and REMANDED for resentencing so that the district court may

consider this issue in the first instance.

       Additionally, Proctor’s Motion to Take Judicial Notice filed July 30,2012, is

hereby GRANTED.




                                             2
