                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 22 2011

                                                                        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. 11-10235

               Plaintiff - Appellee,             D.C. No. 2:10-cr-00283-KJM

  v.
                                                 MEMORANDUM *
KELLY J. MICHAEL,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Kimberly J. Mueller, District Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       Kelly J. Michael appeals from his sentence of 12 months of probation

imposed following his guilty-plea conviction for possession of a controlled

substance, in violation of 21 U.S.C. § 844(a). We have jurisdiction under 28

U.S.C. § 1291, and we vacate and remand for resentencing.

          *
             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. Appellant. P. 34(a)(2).
      Michael contends that the district court erred by denying his request for pre-

judgment probation under 18 U.S.C. § 3607(a) (allowing for a term of probation

and dismissal of the proceedings “before the expiration of the term of probation, if

the person has not violated a condition of his probation”). It is undisputed that

Michael qualified for pre-judgment probation. The district court denied Michael

pre-judgment probation based on the mistaken belief that Michael was required to

make the request before sentencing. Accordingly, we vacate and remand for

resentencing to determine whether pre-judgment probation should be imposed

under section 3607(a). See United States v. Hinkson, 585 F.3d 1247, 1262 (9th

Cir. 2009) (en banc) (“[A] district court abuses its discretion when it makes an

error of law.”).

      VACATED and REMANDED.




                                          2                                    11-10235
