                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 20 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-50427

              Plaintiff-Appellee,                D.C. No.
                                                 3:14-cr-00277-GPC-3
 v.

JOHN GORDON BADEN, AKA John                      MEMORANDUM*
Gordon Baden,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Gonzalo P. Curiel, District Judge, Presiding

                     Argued and Submitted December 5, 2016
                              Pasadena, California

Before: REINHARDT, W. FLETCHER, and PAEZ, Circuit Judges.

      John Gordon Baden appeals his sentence of 108 months’ imprisonment

following his conviction of computer hacking in violation of 18 U.S.C.

§§ 1030(a)(4) and (c)(3)(A), wire fraud in violation of 18 U.S.C. § 1343, and

conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. We have


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Reviewing for plain

error, we vacate Baden’s sentence and remand for resentencing.

       1.     To establish plain error, Baden must demonstrate (1) there was “an

error[,]” (2) the error was “plain[,]” and (3) “the error . . . affected the defendant’s

substantial rights, which in the ordinary case means that he or she must show a

reasonable probability that, but for the error, the outcome of the proceeding would

have been different.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343

(2016) (citations and internal quotation marks omitted). “Once these three

conditions have been met, the court of appeals should exercise its discretion to

correct the forfeited error if [(4)] the error seriously affects the fairness, integrity or

public reputation of judicial proceedings.” Id. (internal quotation marks omitted).

       2.     The government concedes that the first two prongs are satisfied

because the district court plainly erred in applying the two-level sentencing

enhancement for “theft from the person of another” under § 2B1.1(b)(3) of the

United States Sentencing Guidelines (the “Guidelines”).

       3.     As to the third prong, “in the ordinary case a defendant will satisfy his

burden to show prejudice by pointing to the application of an incorrect, higher

Guidelines range and the sentence he received thereunder.” Id. at 1347. This is an

“ordinary” case, and Baden makes such a showing. Indeed, the district court relied


                                             2
on the erroneous Guidelines calculation in fashioning Baden’s sentence and did not

base his sentence solely on “factors independent of the Guidelines.” See id.

Because the record is “silent as to what the district court might have done had it

considered the correct Guidelines range,” the error affected Baden’s substantial

rights. Id.

      4.      Baden satisfies the fourth prong by demonstrating that the error

“seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Joseph, 716 F.3d 1273, 1281 (9th Cir. 2013)

(internal quotation marks omitted). “We have regularly deemed the fourth prong

of the plain error standard to have been satisfied where, as here, the sentencing

court committed a legal error that may have increased the length of a defendant’s

sentence.” Id. (quoting United States v. Tapia, 665 F.3d 1059, 1063 (9th Cir.

2011)). Accordingly, we vacate Baden’s sentence and remand for resentencing.

      VACATED and REMANDED.




                                            3
