                                                                               FILED
                             NOT FOR PUBLICATION
                                                                               NOV 24 2017
                    UNITED STATES COURT OF APPEALS                          MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              )      No. 16-30182
                                       )
      Plaintiff-Appellee,              )      D.C. No. 1:15-cr-00139-SPW-1
                                       )
      v.                               )      MEMORANDUM*
                                       )
NATHEN JEROME ADAMS,                   )
                                       )
      Defendant-Appellant.             )
                                       )

                    Appeal from the United States District Court
                            for the District of Montana
                     Susan P. Watters, District Judge, Presiding

                            Submitted November 7, 2017**
                                 Portland, Oregon

Before: FERNANDEZ, W. FLETCHER, and MELLOY,*** Circuit Judges.

      Nathen Jerome Adams appeals his sentence for conspiracy to distribute

explosives without a license. See 18 U.S.C. § 844(a), (n); see also id. §


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
      ***
        The Honorable Michael J. Melloy, United States Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
842(a)(3)(B). We vacate the sentence and remand.

      Adams asserts that the district court committed procedural error1 when it

calculated his U.S. Sentencing Guidelines range by adding four levels to his base

offense level2 on the basis that he had “transferred [an] explosive material with

knowledge, intent, or reason to believe that it would be used or possessed in

connection with another felony offense.”3 We agree. When the district court

determined that Adams had transferred an explosive (a stick of dynamite) to

another person (an undercover agent for the Bureau of Alcohol, Tobacco, Firearms

and Explosives) with the requisite mental state at the time he made the transfer and

was paid therefor, it clearly erred4 because there was not sufficient evidence to

support that determination.5 There was evidence that after the dynamite had been

delivered to the buyer and paid for (that is, after the transfer itself had been

completed), the agent stated that he would use it for the felonious purpose of

      1
          See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
      2
       See USSG §2K1.3(b)(3). Unless otherwise indicated all references to the
United States Sentencing Guidelines are to the November 1, 2015, version thereof.
      3
          Id.
      4
        See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en
banc); United States v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010); see also United
States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc).
      5
          See United States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005).

                                            2
blowing up another person’s car, and Adams replied: “That’ll do it.” However,

that exchange did not indicate that Adams knew or had reason to believe that the

dynamite would be used in that manner at the time the transfer was completed.

Nor did any other evidence suggest that he had that mental state.

      Therefore, we VACATE the sentence and REMAND for resentencing.




                                         3
