           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 12, 2008
                                     No. 07-30736
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

BRUCE H. PERRIN,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                               No. 3:05-CR-16-ALL




Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*


       Bruce Perrin pleaded guilty to two counts of receipt of child pornography


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 07-30736

and one count of possession of child pornography. United States v. Perrin, 478
F. 3d 672, 674 (5th Cir. 2007). The district court determined that Perrin’s guide-
line sentence range was 108-35 months of imprisonment with a statutory mini-
mum of 60 months. Id. at 674-75. The court sentenced Perrin to the statutory
minimum, stating four reasons for imposing a sentence below the recommended
range. Id. at 675. On direct appeal, this court vacated the sentence, finding that
“each of the four reasons given for the departure was improper” and that “no jus-
tification remains for the significant departure from the guideline range.” Id. at
679.
       At resentencing, the district court stated that the decision from this court
on direct appeal had held that a sentence within the guideline range must be im-
posed. The court then imposed a sentence of 108 months, the bottom of the
range.
       In Gall v. United States, 128 S. Ct. 586, 595 (2007), the Court rejected the
notion that a district court needs extraordinary circumstances to justify a devia-
tion from the guideline range. In making its sentencing decision, a court should
use the range as “the starting point and the initial benchmark” but should con-
sider all the sentencing factors in 18 U.S.C. § 3553(a). Gall, 128 S. Ct. at 596.
In reviewing a sentence, we first determine whether the decision was procedur-
ally sound. See Gall, 128 S. Ct. at 597.
       The government has requested that the sentence be vacated and remanded
for resentencing because the district court’s statement that this court’s decision
on direct appeal mandated a sentence within the guideline range is a procedural
error under Gall. The government notes that this reasoning holds even if the
district court misinterpreted this court’s mandate.
       We agree. The sentence is VACATED and REMANDED for resentencing
in accordance with Gall. We note that the district court did not have the benefit
of Gall when it imposed the sentence on remand.



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