                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 21 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-10518

                Plaintiff-Appellee,             D.C. No.
                                                1:16-cr-00013-FMTG-1
 v.

KWON WOO SUNG,                                  MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                             for the District of Guam
               Frances Tydingco-Gatewood, Chief Judge, Presiding

                      Argued and Submitted August 8, 2017
                              Pasadena, California

Before: CALLAHAN and OWENS, Circuit Judges, and FABER,** District Judge.

      Defendant Kwon Woo Sung (“Sung”) appeals from the sentence imposed

following his guilty plea to one count of interference with flight crew members and

attendants in violation of 49 U.S.C. § 46504. As the parties are familiar with the

facts, we do not recount them here. We have jurisdiction under 18 U.S.C. § 3742


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable David A. Faber, United States District Judge for the
Southern District of West Virginia, sitting by designation.
and 28 U.S.C. § 1291. We vacate the sentence and remand for resentencing.

      “We review a district judge’s sentence for abuse of discretion.” United

States v. Blinkinsop, 606 F.3d 1110, 1114 (9th Cir. 2010). This “requires

determining: (1) whether there was procedural error in formulating the sentence,

and (2) whether the sentence is substantively reasonable.” Id.

      While now advisory, the Sentencing Guidelines “should be the starting point

and the initial benchmark” for sentencing determinations. Gall v. United States,

552 U.S. 38, 49 (2007). Reversible procedural error exists where a district court

“use[s] the statutory maximum rather than the guidelines range as the baseline for

sentencing.” United States v. Burgum, 633 F.3d 810, 813 (9th Cir. 2011).

      Although here the district court mentioned the zero to six month Guidelines

range several times during sentencing, the record indicates that it used 49 U.S.C.

§ 46504’s statutory maximum—and not the Guidelines—as the baseline for

sentencing. The district court repeatedly stated that its “initial thought was to

sentence the defendant to ten years’ imprisonment.” Further, it explained that it

had “thrown out the sentencing guidelines,” and was “sentencing [Sung] under the

statute.” Accordingly, because the district court did not use the Guidelines as the

baseline for sentencing, it committed reversible procedural error.

      Where reversible procedural error exists, we “remand for resentencing

pursuant to 18 U.S.C. § 3742(f), without reaching the question of whether the


                                           2
sentence as a whole is reasonable in light of [18 U.S.C.] § 3553(a).” United States

v. Cantrell, 433 F.3d 1269, 1280 (9th Cir. 2006). Accordingly, we do not reach the

sentence’s substantive reasonableness.1

      VACATED and REMANDED.




1
  We also do not reach Sung’s contention that the district court erred in finding him
ineligible for home confinement under U.S.S.G. § 5C1.1.

                                          3
