                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 27 2012

                                                                        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. 11-30033

               Plaintiff - Appellee,             D.C. No. 2:00-cr-00272-JCC

  v.
                                                 MEMORANDUM *
JOSEPH JAMES,

               Defendant - Appellant.



                     Appeal from the United States District Court
                       for the Western District of Washington
                    John C. Coughenour, District Judge, Presiding

                            Submitted January 17, 2012 **

Before:        LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.

       Joseph James appeals from the 30-month sentence imposed upon revocation

of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we vacate

and remand based on intervening authority.




          *
             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).
      James contends that the district court procedurally erred by failing to

exercise its discretion in imposing the above-Guidelines sentence without

considering James’s individualized circumstances. The record does not support

this contention.

      However, after James’s sentencing, the Supreme Court issued Tapia v.

United States, 131 S. Ct 2382, 2389 (2011). In reliance on that decision, we then

held that “prison, whether as an initial sentence or on revocation of supervised

release, can be imposed and the duration selected only for purposes of retribution,

deterrence, and incapacitation, not rehabilitation.” United States v. Grant, No. 10-

10245, 2011 WL 6016182 at *5 (9th Cir. Dec. 5, 2011). Because we cannot

ascertain on the record before us whether the district court based its sentence in

part on James’s need for rehabilitation (and a longer sentence in order to qualify

him for intensive drug abuse treatment), and the district did not have the benefit of

Tapia and Grant, we vacate and remand for resentencing.

      VACATED AND REMANDED.




                                           2                                    11-30033
