                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 26 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-35807

               Plaintiff - Appellee,             D.C. Nos.    6:09-cr-00025-CCL
                                                              6:12-cv-00103-CCL
 v.
                                                 MEMORANDUM*
GLENN STEVEN SCOTT,

               Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                    Charles C. Lovell, District Judge, Presiding

                            Submitted January 20, 2016**

Before:        CANBY, TASHIMA, and NGUYEN, Circuit Judges.

      Federal prisoner Glenn Steven Scott appeals pro se from the district court’s

order denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his

sentence. We have jurisdiction under 28 U.S.C. § 2253. We review de novo the



          *
             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).
district court’s denial of a section 2255 motion, see United States v. Aguirre-

Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010), and we vacate and remand.

      Scott contends that his counsel rendered ineffective assistance by failing to

follow his instructions to file a notice of appeal. The government concedes, and

we agree, that the district court erred when it declined to hold an evidentiary

hearing on the issue. See United States v. Sandoval-Lopez, 409 F.3d 1193, 1198

(9th Cir. 2005) (stating that an evidentiary hearing is required when a defendant

alleges that his attorney refused to file a notice of appeal when ordered to do so).

We therefore remand to the district court for an evidentiary hearing to determine

whether Scott instructed his attorney to file a notice of appeal. See id.

Alternatively, if the government does not object, the district court may vacate and

reenter the judgment in Scott’s criminal proceedings, allowing Scott to file a timely

notice of appeal. See id.

      VACATED and REMANDED.




                                           2                                      14-35807
