                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                                NOV 13 2009

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

UNITED STATES OF AMERICA,                        No. 08-30479

             Plaintiff - Appellee,               D.C. No. 9:07-CR-00056-DWM-3

  v.
                                                 MEMORANDUM *
KENNETH J. BOWLAN,

             Defendant - Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                   Donald W. Molloy, District Judge, Presiding

                          Submitted November 3, 2009**
                                Portland, Oregon

Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.

       Kenneth Bowlan appeals from the 84-month sentence imposed following his

plea of guilty to possession of methamphetamine with intent to distribute, in

violation of 21 U.S.C. § 841(a)(1).


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      We review for abuse of discretion the district court’s determination that

hearsay testimony was sufficiently reliable to establish drug quantity for

sentencing purposes. See United States v. Berry, 258 F.3d 971, 976 (9th Cir.

2001). Because the hearsay statements regarding the quantity of drugs that Bowlan

possessed were neither inherently reliable nor corroborated by extrinsic evidence,

the district court abused its discretion by relying on them. See United States v.

Huckins, 53 F.3d 276, 279–80 (9th Cir. 1995). Accordingly, we vacate the

sentence and remand for resentencing on an open record pursuant to United States

v. Matthews, 278 F.3d 880, 889–90 (9th Cir. 2002) (en banc).

      The district court did not violate Bowlan’s Fifth or Sixth Amendment rights

by imposing a sentence based on a drug quantity that was neither proved to a jury

nor admitted. Because the district court properly treated the Guidelines as advisory

and sentenced Bowlan below the statutory maximum, there was no constitutional

violation. See United States v. Booker, 543 U.S. 220, 233 (2005).

      VACATED and REMANDED.
