                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 14 2012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. 11-30110

               Plaintiff - Appellee,             D.C. No. 4:09-cr-00118-SEH

  v.
                                                 MEMORANDUM *
KEVIN FALCON,

               Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                              Submitted March 6, 2012 **

Before:        B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.

       Kevin Falcon appeals from the 110-month sentence imposed on remand

following his guilty-plea conviction for being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291,

and we vacate and remand.



          *
             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).
      Falcon argues that his sentence is procedurally and substantively

unreasonable, in light of both his poor health and the relative seriousness of his

offense. A correctly-calculated advisory Sentencing Guidelines range is “the

starting point and the initial benchmark” for sentencing. See Gall v. United States,

552 U.S. 38, 49 (2007). As no basis appears in the record for the district court’s

selection of a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4), and as it

seems likely, instead, that Falcon’s base offense level should have been assessed as

14, under section 2K2.1(a)(6), we cannot conclude that the 110-month sentence

was either procedurally or substantively reasonable. Accordingly, we vacate the

sentence and remand for resentencing.

      We are in receipt of Falcon’s pro se motion to obtain new appellate counsel.

In view of our decision to remand, we deny that motion as moot. In his motion,

Falcon asserts that Judge Haddon is biased against him. We find no basis in the

record for Falcon’s assertion and, therefore, decline to reassign the case to another

judge on remand. This panel retains jurisdiction over any future appeal.

      VACATED and REMANDED.




                                           2                                    11-30110
