                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 27 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-10394

             Plaintiff - Appellee,               D.C. No. 2:08-cr-114 LKK

  v.                                             MEMORANDUM *

STEFAN WILSON,

             Defendant-Appellant.



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

                    Argued and Submitted September 15, 2010
                            San Francisco, California

Before: WALLACE and THOMAS, Circuit Judges, and MILLS,** Senior District
Judge.

       Defendant Stefan Wilson appeals from the district court's sentence of 236

months for wire fraud and tax evasion. We have jurisdiction under 28 U.S.C. y

1291 and 18 U.S.C. y 3742. We review the 'district court's interpretation of the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
Sentencing Guidelines de novo, the district court's application of the Sentencing

Guidelines to the facts of this case for abuse of discretion, and the district court's

factual findings for clear error.' United States v. Kimbrew, 406 F.3d 1149, 1151

(9th Cir. 2005). We vacate the Defendant's sentence, and remand for resentencing.

      The district court did not specifically rule on the Defendant's objections to

three enhancements contained in the Presentence Investigation Report (PSR).

Furthermore, the district court did not rule on the Defendant's objection to the

Criminal History Category assigned in the PSR. The Court cannot properly review

the sentence on appeal without rulings by the district court on these objections.

See United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc); Kimbrew,

406 F.3d at 1151. Thus, we must vacate and remand. See United States v. Denton,

611 F.3d 646, 651 (9th Cir. 2010).

      The Defendant's remaining allegations of procedural error-that the district

court failed to inquire whether the Defendant had read the PSR and that the district

court did not adopt the PSR-can be resolved by the district court on remand.

      SENTENCE VACATED, REMANDED FOR RESENTENCING.




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                                                                                FILED
United States v. Wilson, No. 09-10394                                            DEC 27 2010

                                                                            MOLLY C. DWYER, CLERK
WALLACE, Circuit Judge, dissenting:                                           U.S . CO U RT OF AP PE A LS




         I dissent from the majority's disposition because it places a burden on

district court judges that is inconsistent with Federal Rule of Criminal

Procedure 32.

         The majority faults the district court for not 'specifically rul[ing] on

[Wilson's] objections to three enhancements contained in the Presentence

Investigation Report (PSR).' The disposition also states that the district court 'did

not rule on [Wilson's] objection to the Criminal History Category assigned in the

PSR.' The majority relies on United States v. Carty, 520 F.3d 984, 991 (9th Cir.

2008) (en banc), United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005),

and United States v. Denton, 611 F.3d 646, 651 (9th Cir. 2010) for the proposition

that we 'cannot properly review the sentence on appeal without rulings by the

district court on these objections.' None of these cases, however, require a district

court to maµe a specific ruling on legal objections to a sentencing enhancement or

to a defendant's criminal history category. By imposing the sentence that it did, it

is clear that the district court concluded that these legal objections were without

merit.

         Wilson's argument on appeal is premised on Rule 32(i)(3)(B). We have

construed Rule 32 as merely requiring that sentencing courts rule on disputes
pertaining to factual inconsistencies. United States v. Grajeda, 581 F.3d 1186,

1188 (9th Cir. 2009) (Where 'objections to the PSR [are] legal, not factual, the

district court was not required to maµe any factual determinations'); United States

v. Stoterau, 524 F.3d 988, 1011 (9th Cir. 2008) ('recommendations, opinions or

conclusions [that are] not factual in nature' do not require a ruling under Rule 32)

(emphasis added; quotation omitted).

      In this case, the three specific objections identified in Wilson's appeal are all

legal objections, or are of such nature that no specific ruling was necessary.

Therefore, I would affirm.




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