                                                                                      FILED
                               NOT FOR PUBLICATION                                     JUL 18 2012

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




                                FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                              No. 11-50240

                Plaintiff - Appellant,                  D.C. No. 2:10-cr-01094-R-1

   v.
                                                        MEMORANDUM *
 STEPHEN JAY BRINES,

                Defendant - Appellee.



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

                                 Submitted July 13, 2012 **
                                   Pasadena, California

Before: GILMAN ***, TALLMAN, and N.R. SMITH, Circuit Judges.

        Stephen Jay Brines pleaded guilty to the charge of knowingly receiving child

pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). Although the mandatory

        *
              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).
        ***
                 The Honorable Ronald Lee Gilman, Senior United States Circuit Judge for the Sixth
Circuit, sitting by designation.
minimum penalty for this crime is five years of imprisonment pursuant to 18 U.S.C.

§ 2252A(b)(1), the district court sentenced Brines to just two years of imprisonment,

to be followed by 10 years of supervised release.

      The government has appealed the sentence imposed by the district court,

contending that the sentence is unlawful under 18 U.S.C. § 2252A(b)(1). We have

jurisdiction under 28 U.S.C. § 1291, and we vacate Brines’s sentence.

      Section 2252A(b)(1) provides, inter alia, that a person who violates

§ 2252A(a)(2)(A) “shall be . . . imprisoned not less than 5 years . . . .” This minimum

sentence “is mandatory, not optional.” See United States v. Sykes, 658 F.3d 1140,

1146 (9th Cir. 2011) (internal quotation marks omitted). Because no exception to the

statutory minimum sentence applies in this case, the district court had no authority to

sentence Brines to less than five years of imprisonment.

      Brines also argues that, if this court remands, the district court should be

required to impose a sentence not greater than the minimum five-year prison term.

However, we have held that “as a general matter, if a district court errs in sentencing,

we will remand for resentencing on an open record -- that is, without limitation on the

evidence that the district court may consider.” United States v. Matthews, 278 F.3d

880, 885 (9th Cir. 2002) (en banc). We therefore VACATE Brines’s sentence and




                                           2
REMAND the case for a full resentencing without the constraints from any prior

sentencing, consistent with this Memorandum.

      VACATED and REMANDED.




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