                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             APR 20 2017
                   UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.     15-30338

              Plaintiff-Appellee,                D.C. No.
                                                 2:15-cr-00016-DLC-1
 v.

ANTHONY DANE ROBERTY,                            MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                    Dana L. Christensen, Chief Judge, Presiding

                             Submitted April 4, 2017**
                               Seattle, Washington

Before:      KOZINSKI and W. FLETCHER, Circuit Judges, and
             TUNHEIM,*** Chief District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
                                                                                 page 2
      The government conceded that Amendment 801 to U.S. Sentencing

Guidelines § 2G2.2(b)(3)(F) was a retroactive, clarifying amendment. Thus, we

treat the amendment as retroactively applying to Roberty. See United States v.

Morgan, 376 F.3d 1002, 1010–11 (9th Cir. 2004).

      The government also conceded that the district court erred in calculating

Roberty’s guidelines range by applying the section and increasing his offense level

by two. The error was not harmless. “A mistake in calculating the recommended

Guidelines sentencing range is a significant procedural error that requires us to

remand for resentencing.” United States v. Munoz-Camarena, 631 F.3d 1028,

1030 (9th Cir. 2011) (citations omitted). Under the amended guidelines section,

Roberty does not qualify for the two-level increase in § 2G2.2(b)(3)(F). Roberty is

also potentially eligible for an additional two-level decrease. See U.S.S.G. §

2G2.2(b)(1). These changes would give Roberty a different guidelines range that

does not substantially overlap with the range the district court calculated.

Therefore, we must vacate Roberty’s sentence and remand to the district court for

resentencing.


      VACATED AND REMANDED.
