                                                                              FILED
                             NOT FOR PUBLICATION                               JAN 04 2012

                     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. 10-10003

               Plaintiff - Appellee,
                                                   D.C. No. 1:07-cr-00293-AWI
  v.

JAMES ERIC SCHEIDT,                                MEMORANDUM *
               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Eastern District of California
                     Anthony W. Ishii, Chief Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       James Eric Scheidt appeals from the 324-month sentence imposed following

his guilty-plea conviction for receipt or distribution of material involving the

sexual exploitation of minors, in violation of 18 U.S.C. § 2252(a)(2). We have

jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

       Scheidt contends that the district court plainly erred by including, in its

calculation of his advisory Sentencing Guidelines range, four points related to

          *
             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).
distribution of child pornography under U.S.S.G. §§ 2G2.2(b)(1) and

2G2.2(b)(3)(F). We have not yet resolved the issue of whether the use of a file-

sharing program, without more, can support the award of distribution points under

section 2G2.2(b). Accordingly, any error on the district court’s part cannot be

deemed to have been plain. See United States v. Olano, 507 U.S. 725, 734 (1993)

(no plain error unless error is clear under “current law”); United States v.

Thompson, 82 F.3d 849, 856 (9th Cir. 1996) (“Because of the circuit split, the lack

of controlling authority, and the fact that there is at least some room for doubt

about the outcome of this issue, we cannot brand the court’s failure to exclude the

evidence ‘plain error.’”). Nonetheless, the government concedes that there was

error and that it would have conceded the distribution issue had counsel objected at

sentencing. Accordingly, the better course is for us to remand for consideration of

this issue in the first instance.

       Scheidt also contends that the district court’s restitution order should be

vacated, as there was no evidence that his crime proximately caused quantifiable

losses, or indeed any losses, to the named victims. After the entry of judgment

below, we decided United States v. Kennedy, 643 F.3d 1251 (9th Cir. 2011), which

set forth a framework for analyzing mandatory restitution orders under




                                           2                                     10-10003
18 U.S.C. § 2259. On remand, the district court shall revisit its restitution order in

light of the framework set forth in Kennedy.

      In view of the remand, it is unnecessary to reach Scheidt’s remaining

contentions.

      VACATED and REMANDED.




                                           3                                    10-10003
