                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 12 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                           No. 16-10503

             Plaintiff-Appellee,                    D.C. No.
                                                    3:16-CR-003-MMD-WGC
v.

RICHARD E. TURNER,                                  MEMORANDUM*

             Defendant-Appellant.



                   Appeal from the United States District Court
                            for the District of Nevada
                    Miranda M. Du, District Judge, Presiding

                    Argued and Submitted November 16, 2017
                            San Francisco, California




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                          1
Before: GOULD, MURGUIA, Circuit Judges, and FREUDENTHAL,** Chief
District Judge

      Defendant Richard Turner appeals from the district court’s judgment and

challenges the 46-month sentence imposed following his guilty plea conviction for

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and §

924(a)(2). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

      On appeal, Turner first argues the district court improperly based his sentence

on the need for education and treatment in violation of Tapia v. United States, 564

U.S. 319 (2011). Turner failed to raise this claim with the district court. We review

for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th

Cir. 2010), and conclude there is none. The district court recognized Turner’s need

for educational training and treatment as a component of the sentencing factors in

18 U.S.C. § 3553(a)(2)(D). However, the record does not support Turner’s claim

that the district court imposed or lengthened Turner’s sentence to promote education

or treatment. See, Tapia, 564 U.S. at 330.

      Turner also challenges the district court’s finding that Nevada Revised Statute

(“NRS”) § 453.321 is categorically a controlled substance offense. Turner failed to

raise all of his current arguments before the district court, so we review for plain

error. Valencia-Barragan, 608 F.3d at 1108. The district court plainly erred by


      **
             The Honorable Nancy D. Freudenthal, Chief United States District
Judge for the District of Wyoming, sitting by designation.
                                         2
finding NRS § 453.321 is categorically a “controlled substance offense” under the

sentencing guidelines. Nevada Revised Statute § 453.321 covers substances not

contained in the federal Controlled Substances Act. “[I]t is undisputed that Nevada

law lists at least some substances that are not on the federal list, compare 21 U.S.C.

§ 802 with Nev. Admin. Code §§ 453.510–453.550 (listing Datura, hydrogen iodide

gas, human growth hormone, and Carisoprodol, as controlled substances).”

Madrigal-Barcenas v. Lynch, 797 F.3d 643, 645 (9th Cir. 2015) (discussing

Nevada’s possession of paraphernalia statute, which contains the same drug

schedules as NRS § 453.321). For these reasons, NRS § 453.321 is overbroad and

is not categorically a controlled substance offense. We remand this matter back to

the district court to determine in the first instance whether NRS § 453.321 is

divisible and, if necessary, to apply the modified categorical approach.

      Having held there was a procedural error, we do not reach Turner’s claim that

his sentence was substantively unreasonable. United States v. Carty, 520 F.3d 984,

993 (9th Cir. 2008) (“On appeal, we first consider whether the district court

committed significant procedural error, then we consider the substantive

reasonableness of the sentence.”) (citation omitted).

VACATED AND REMANDED.




                                          3
