                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 04 2011

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


                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 10-10268

               Plaintiff - Appellee,              D.C. No. 1:08-cr-00384-OWW

  v.
                                                  MEMORANDUM *
KAREN JEAN FREYLING,

               Defendant - Appellant.



                     Appeal from the United States District Court
                         for the Eastern District of California
                     Oliver W. Wanger, District Judge, Presiding

                           Submitted September 27, 2011 **

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

       Karen Jean Freyling appeals from the 121-month sentence imposed following

her jury-trial conviction for conspiracy, fraud, smuggling, and various other offenses

related to the operation of a business that sold unauthorized DVDs over the Internet,

as well as for Social Security fraud. 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).
      Freyling contends that when the district court modified her advisory

Sentencing Guidelines range at the sentencing hearing of her co-defendant, she was

denied: (1) her right under Fed. R. Crim. P. 43 to be present at sentencing, and (2)

her Sixth Amendment right to counsel. We agree and conclude that remand is

necessary. See United States v. Berger, 473 F.3d 1080, 1094 (9th Cir. 2007); United

States v. Hamilton, 391 F.3d 1066, 1070 (9th Cir. 2004).

      The government does not oppose a remand but requests that we limit its scope

to allow the district court merely to clarify which Guidelines range it relied upon in

choosing the 121-month term of imprisonment. We reject such a limitation;

however, remand shall be limited to consideration of the issues raised in this appeal.

      Our resolution of these issues renders it unnecessary to resolve Freyling’s

remaining contentions.

      VACATED AND REMANDED.




                                           2                                   10-10268
