                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 22 2010

                                                                        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. 10-50175

               Plaintiff - Appellee,             D.C. No. 3:09-cr-02938-GT

  v.
                                                 MEMORANDUM *
JUAN OLIBAS-VALENZUELA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                    Gordon Thompson, District Judge, Presiding

                           Submitted November 16, 2010 **

Before:        TASHIMA, BERZON, and CLIFTON, Circuit Judges.

       Juan Olibas-Valenzuela appeals from the 12-month sentence imposed upon

revocation of supervised release. 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. App. P. 34(a)(2).
      Olibas-Valenzuela contends that the supervised release revocation

procedures set forth in 18 U.S.C. § 3583(e)(3) violate Apprendi v. New Jersey, 530

U.S. 466 (2000) and United States v. Booker, 543 U.S. 220 (2005). As Olibas-

Valenzuela concedes, this contention is foreclosed by United States v. Santana,

526 F.3d 1257, 1262 (9th Cir. 2008), and United States v. Huerta-Pimental, 445

F.3d 1220, 1225 (9th Cir. 2006).

      Olibas-Valenzuela further argues that the district court procedurally erred by

failing to calculate and consider the applicable advisory Guidelines range. The

record reveals that the district court committed a significant procedural error

because it did not calculate the advisory Guidelines range, and neither the parties

nor the probation office identified the applicable range. See Gall v. United States,

552 U.S. 38, 51 (2007); United States v. Denton, 611 F.3d 646, 651 (9th Cir.

2010). The Government has not met its burden of showing that the error was

harmless; therefore, we vacate the sentence and remand for resentencing. United

States v. Grissom, 525 F.3d 691, 696 (9th Cir. 2008) (stating that this court “will

remand non-harmless procedural errors”).




                                           2                                      10-50175
      Because the district court’s failure to calculate the advisory Guidelines range

requires remand for resentencing, it is unnecessary to address Olibas-Valenzuela’s

remaining claims of procedural error at sentencing.

      VACATED and REMANDED for resentencing.




                                          3                                   10-50175
