                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 04 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-30369

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00165-WFN-001

  v.
                                                 MEMORANDUM*
MICHELLE ANN WING,

              Defendant - Appellant,


                 Appeal from the United States District Court
                    for the Eastern District of Washington
             Wm. Fremning Nielsen, Senior District Judge, Presiding

                       Argued and Submitted July 15, 2010
                              Seattle, Washington

Before: RYMER and N.R. SMITH, Circuit Judges, and CEBULL, Chief District
Judge.**

       Michelle Ann Wing appeals the 86-month sentence imposed upon her guilty

plea to six counts of bank fraud, in violation of 18 U.S.C. §§ 1342 & 1344, and

one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Richard F. Cebull, United States District Judge for the
District of Montana, sitting by designation.
We have jurisdiction under 28 U.S.C. § 1291. We reverse because the district

court failed to correctly calculate the guideline range. See United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc) (citing Gall v. United States, 552 U.S.

38, 51 (2007)).

                                          1.

      Wing first argues the district court erred by calling Wing’s supervising

probation officer to testify concerning the facts underlying the Presentence

Investigation Report’s U.S.S.G. § 3C1.1 obstruction of justice enhancement

recommendation. But so long as he remains impartial and disinterested, a

sentencing judge has authority to call and question witnesses. United States v.

Alfaro, 336 F.3d 876, 883 (9th Cir. 2003). Moreover, Wing objected to the

Presentence Investigation Report’s recommendation that the court impose a two-

level increase for obstruction of justice. Since the plea agreement prohibited the

United States from seeking an obstruction of justice enhancement, the district court

properly called and questioned the probation officer concerning facts within her

personal knowledge in order to rule on Wing’s objection to the report. Finally, the

district court’s questions did not evidence bias, but were precisely aimed at

clarifying information contained in the Presentence Investigation Report. Once the




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district court finished its questioning, both parties were allowed to question the

witness.

      We find no error here.

                                           2.

      Wing further argues that the district court erred in applying a two-level

enhancement for obstruction of justice. “We review the district court’s

interpretation of the Sentencing Guidelines de novo, the district court’s application

of the Guidelines to the facts for abuse of discretion, and the district court’s factual

findings for clear error.” United States v. Garro, 517 F.3d 1163, 1167 (9th Cir.

2008) (citing United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006)). A

review of the record reveals both factual and legal support under Application Note

1 to U.S.S.G. § 3C1.1 for the obstruction of justice enhancement.

                                           3.

      Finally, Wing is correct that the district court erred in applying a two-level

enhancement untethered to any provision in the United States Sentencing

Guidelines Manual. Although the guidelines are advisory, an incorrect guideline

calculation requires remand for resentencing even if the sentence imposed is

substantively reasonable. Carty, 520 F.3d at 993.




                                           3
      Here, the district court correctly calculated an offense level of 22 before it

added 2 more levels without citing a particular guideline provision. An

enhancement to the defendant’s guideline range must be tied to a particular

provision. A variance to the defendant’s guideline range is justified under the

§ 3553(a) factors. Under the precedent of this Court, procedural error cannot be

ignored.

      Therefore, because of this error, we vacate the sentence and remand for

resentencing.

      REVERSED AND REMANDED.




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