                                                                           FILED
                            NOT FOR PUBLICATION                              JUL 13 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10450

              Plaintiff - Appellant,             D.C. No. 2:13-cr-00215-LKK-1

 v.
                                                 MEMORANDUM*
JOSEPH AARON MCCLENDON,

              Defendant - Appellee.


                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                              Submitted July 8, 2015**
                              San Francisco, California

Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.

      Joseph Aaron McClendon pled guilty to possession of child pornography, in

violation of 18 U.S.C. § 2252(a)(4)(B). The United States appeals the 83-day

“time served” sentence imposed by the district court, 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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
committed procedural error by failing to explain the substantial downward

variance. The United States also argues that McClendon’s sentence, which

amounted to a downward variance of ninety-seven (97) percent from the low-end

of the applicable Guidelines range, was substantively unreasonable. We have

jurisdiction under 28 U.S.C. § 1291.

      Because the government failed to object to McClendon’s sentence, the plain-

error standard governs our review of whether the district court committed

procedural error. United States v. Evans-Martinez, 530 F.3d 1164, 1167 (9th Cir.

2008). We review the substantive reasonableness of the sentence for abuse of

discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009). We

conclude that the district court committed plain procedural error, and we vacate

and remand for resentencing.

      A district court must “adequately explain the chosen sentence to allow for

meaningful appellate review and to promote the perception of fair sentencing.”

Gall v. United States, 552 U.S. 38, 50 (2007). When the district court decides that

an outside-Guidelines sentence is warranted, the court must consider and explain

“the extent of the deviation and ensure that the justification is sufficiently

compelling to support the degree of the variance.” Id. Here, the district court

imposed a “time served” sentence of 83 days, well below the applicable Guidelines


                                            2
range of 97 to 121 months. However, the district court failed to provide any

reasoning for the substantial downward variance. Instead, the district court

summarily concluded that “nobody in [their] right mind would consider [the

applicable Guidelines range] an appropriate sentence under the circumstances.”

The district court erred by failing to explain “the circumstances” warranting the

downward variance, and the error was plain. See 18 U.S.C. § 3553(a) (listing

factors that “shall” be considered when a district court imposes sentence); United

States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (a district court “must explain

why he imposes a sentence outside the Guidelines”).

      The error affected the government’s substantial rights. Ordinarily, an error

affects an appellant’s substantial rights if it “affect[s] the outcome of the district

court proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting

United States v. Olano, 507 U.S. 725, 734 (1993)) (internal quotation marks

omitted). After noting its disagreement with the applicable Guidelines range, the

district court stated, “I’m leaving. That’s the end of it.” By doing so, the district

court deprived the government of an opportunity to argue against the imposition of

an 83-day sentence. Had the government been given this opportunity, it could

have persuaded the district court to impose a sentence that was closer to the

Guidelines range. See United States v. Tapia, 665 F.3d 1059, 1061 (9th Cir. 2011);


                                            3
see also United States v. Joseph, 716 F.3d 1273, 1280 (9th Cir. 2013) (if error

“may have led” to even a one-month deviation in sentencing, the error “affects

substantial rights” (internal quotation marks omitted))..

      The district court exercised its sentencing authority in a seemingly arbitrary

manner, which “seriously affected the fairness, integrity or public reputation of

judicial proceedings.”1 See Carty, 520 F.3d at 992.

      VACATED and REMANDED for resentencing.




      1
        Because we conclude that the district court committed procedural error, we
do not reach the government’s argument that McClendon’s 83-day sentence was
substantively unreasonable.

                                          4
