                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        NOV 28 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10135

                Plaintiff-Appellee,             D.C. No.
                                                2:15-cr-00030-GMN-CWH-1
 v.

DUSTIN MCCASKILL,                               MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Gloria M. Navarro, Chief Judge, Presiding

                    Argued and Submitted November 16, 2018
                            San Francisco, California

Before: SCHROEDER and WATFORD, Circuit Judges, and KORMAN,** District
Judge.

      Dustin McCaskill appeals from his sentence imposed upon revocation of

supervised release. One of the violations supporting revocation was a

determination by the district court that McCaskill had committed an assault under



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
                                                                           Page 2 of 3

Nevada Revised Statutes § 200.471, which requires “[i]ntentionally placing

another person in reasonable apprehension of immediate bodily harm.” Nev. Rev.

Stat. § 200.471(1)(a)(2). This finding increased McCaskill’s Sentencing

Guidelines range from 3–9 months to 4–10 months, and the district court imposed

a custodial sentence of 10 months, with no supervised release to follow.

      The government did not submit evidence from which the “essential

elements” of Nevada assault could be found by a preponderance of the evidence.

United States v. King, 608 F.3d 1122, 1129 (9th Cir. 2010). The text of the statute

requires a showing that the victim reasonably apprehended “immediate bodily

harm.” Nev. Rev. Stat. § 200.471(1)(a)(2) (emphasis added). Nevada cases

confirm that “[m]ere menace is not enough.” Anstedt v. State, 509 P.2d 968, 969

(Nev. 1973); see, e.g., Rose v. State, 255 P.3d 291, 298 (Nev. 2011). Viewed in

the light most favorable to the government, the evidence in this case proves no

more than that McCaskill made harassing and threatening comments to his

probation officer over the phone and through email. On this record, it cannot be

said that the officer feared immediate bodily harm. In fact, the officer admitted he

did not face immediate bodily harm when he testified at the revocation hearing.

      Because the government introduced insufficient evidence to support a

finding that McCaskill committed assault as defined in Nevada Revised Statutes

§ 200.471, the district court should have sentenced him under a Sentencing
                                                                      Page 3 of 3

Guidelines range of 3–9 months. We vacate McCaskill’s sentence and remand for

resentencing under the correct Guidelines range. See United States v. Munoz-

Camarena, 631 F.3d 1028, 1030 & n.5 (9th Cir. 2011).

      SENTENCE VACATED; REMANDED FOR RESENTENCING.

      The mandate shall issue forthwith.
