                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 23 2011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. 10-30150

               Plaintiff - Appellee,              D.C. No. 4:09-cr-00118-SEH

  v.
                                                  MEMORANDUM *
KEVIN FALCON,

               Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                            Submitted February 15, 2011 **

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

       Kevin Falcon appeals from the 110-month sentence imposed following his

guilty-plea conviction for being a felon in possession of a firearm, in violation of 8

U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, and we vacate

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).
      Falcon contends that the district court procedurally erred by applying a four-

level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6) when calculating the

Guidelines range. The government concedes that the district court should have

relied upon U.S.S.G. § 2K2.1(b)(6) application note 14(A) when determining

whether to apply the enhancement, rather than analogizing the circumstances of the

instant case to burglary and relying on U.S.S.G. § 2K2.1(b)(6) application note

14(B). The government further concedes that the factual record was insufficient to

support the enhancement. We remand to the district court to determine whether the

four-level enhancement is appropriate in light of the relevant application note and

this circuit’s precedent. See Gall v. United States, 552 U.S. 38, 51 (2007) (holding

that improperly calculating the Guidelines range constitutes “significant procedural

error”); see also United States v. Routon, 25 F.3d 815, 819 (9th Cir. 1994) (“[T]o

the extent that the government relies upon physical possession, it must show that

the firearm was possessed in a manner that permits an inference that it facilitated or

potentially facilitated – i.e., had some potential emboldening role in – a

defendant’s felonious conduct.”).

      We decline to limit the district court to the existing record when

resentencing. See United States v. Matthews, 278 F.3d 880, 889 (9th Cir. 2002)

(en banc) (“[T]here is no reason to limit the district court’s authority to explore

                                           2                                     10-30150
fully a factual issue at resentencing simply because it failed to do so during the first

proceeding as a result of an erroneous legal ruling.”).

      Because we are remanding on the basis of an error in the Guidelines

calculations, we need not reach Falcon’s other arguments.

      Sentence VACATED and REMANDED for resentencing.




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