                                                                             FILED
                            NOT FOR PUBLICATION                                OCT 4 2011

                                                                         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. 10-10096

               Plaintiff - Appellee,              D.C. No. 2:08-cr-00462-GEB

  v.
                                                  MEMORANDUM *
STEPHEN MCKESSON,

               Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Eastern District of California
                   Garland E. Burrell, Jr., District Judge, Presiding

                           Submitted September 27, 2011 **

Before:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       Stephen McKesson appeals from the restitution order imposed following his

guilty-plea conviction for sex trafficking of children by force, fraud, or coercion, in

violation of 18 U.S.C. § 1591(a)(1). We have jurisdiction under 28 U.S.C.

§ 1291, and we vacate the restitution order 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).
      The government contends that McKesson waived his right to appeal the

restitution order. We reject the government’s contention and address the merits of

McKesson’s claims. See United States v. Tsosie, 639 F.3d 1213, 1218 (9th Cir.

2011) (“Because the plea agreement did not set forth the amount of restitution

Tsosie would be ordered to pay, or a reasonable and fairly accurate estimate

thereof, Tsosie lacked sufficient notice to waive his right to appeal the restitution

award.”) (internal quotation marks omitted).

      McKesson contends that the district court erred by failing to explain its

reasons for imposing the $20,000 restitution award, because the amount is not

supported by the evidence in the record. We agree that the district court failed to

adequately explain how it determined the award amount, and that the evidence in

the record is insufficient to support the ordered amount by a preponderance of the

evidence. See id. at 1222 (noting that 18 U.S.C. § 3664 “requires both that a

district court set forth its reasons in resolving a dispute over restitution and that a

restitution award . . . be adequately supported by evidence in the record.”).

Accordingly, we vacate the restitution order, and remand to allow the district court

to reassess and explain the amount of restitution. See id. at 1223.

      RESTITUTION ORDER VACATED and REMANDED.




                                            2                                      10-10096
