                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 18 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50118

              Plaintiff - Appellant,             D.C. No. 2:12-cr-01206-R-1

 v.
                                                 MEMORANDUM*
THOMAS JEFFREY DAVIS,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                       Argued and Submitted April 4, 2016
                              Pasadena, California

Before: FARRIS, BEA, and M. SMITH, Circuit Judges.

      The United States appeals defendant Thomas Jeffery Davis’s 24-month

sentence imposed following his guilty-plea conviction for engaging in business as

a manufacturer and dealer in firearms without registration, in violation of 26

U.S.C. § 5861(a), and for possessing an unregistered firearm, in violation of 26

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 5861(d). We have jurisdiction under 28 U.S.C. § 1291, and we vacate

and remand for resentencing.

      The government argues that the district court’s substantial downward

departure from the applicable Guidelines range was procedural error because the

sentence was chosen on the basis of clearly erroneous facts. The district court

explained its decision by stating that it felt that Davis was not in the business of

guns and that the confidential informant used by the government was the sole

source of the guns and the allegations against Davis. These assertions are not

supported by the record, which shows that Davis was the source of all firearms

involved and that he sold those firearms for profit. A sentence based on clearly

erroneous facts cannot be sustained. United States v. Carty, 520 F.3d 984, 993 (9th

Cir. 2008) (en banc).



VACATED and REMANDED.




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