                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 02 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30300

               Plaintiff - Appellee,             D.C. No. 4:09-cr-00032-SEH

  v.
                                                 MEMORANDUM *
ANNA REA YELLOW OWL,

               Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                              Submitted July 19, 2010 **

Before:        B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

       Anna Rea Yellow Owl appeals from the 50-month within-Guidelines

sentence imposed following her guilty-plea conviction for distribution of cocaine

in a public housing facility, in violation of 21 U.S.C. §§ 841(a)(1) and 860. We

have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

          *
             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).
      Although Yellow Owl challenges only the substantive reasonableness of her

sentence on appeal, we “must review sentencing decisions for procedural

error, even where no claim of procedural error is raised.” United States v. Ressam,

593 F.3d 1095, 1116 (9th Cir. 2010).

      A district court procedurally errs when it fails to calculate or calculates

incorrectly the Guidelines range. United States v. Carty, 520 F.3d 984, 993 (9th

Cir. 2008) (en banc). Here, the record indicates that the district court stated at

sentencing that the Guidelines range was 41 to 52 months, when the correct

Guidelines range was 41 to 51 months. Although the government contends that

this was a mere misstatement, because we cannot tell from the record whether the

district court relied on this incorrect range in selecting the 50-month sentence, we

vacate for resentencing. See United States v. Hammons, 558 F.3d 1100, 1105-06

(9th Cir. 2009).

      Because we remand to the district court based on procedural error, we do not

address the substantive reasonableness of the district court’s sentence. However,

we note that, on remand, the district court should directly address Yellow Owl’s

mitigating arguments, including that her mother died of alcohol abuse when she

was a young child and that she was removed from her aunt’s care due to abuse, and

that she persevered in obtaining an education and providing for her children. See


                                           2                                     09-30300
Carty, 520 F.3d at 992-93 (“[W]hen a party raises a specific, nonfrivolous

argument tethered to a relevant § 3553(a) factor in support of a requested sentence,

then the judge should normally explain why he accepts or rejects the party’s

position.”).

      VACATED AND REMANDED.




                                          3                                    09-30300
