                                                                           FILED
                            NOT FOR PUBLICATION                            APR 22 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10412

               Plaintiff - Appellee,             D.C. No. 1:07-cr-00049-AWI

  v.
                                                 MEMORANDUM*
KENNETH HENRY McDONALD, Jr.,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Anthony W. Ishii, District Judge, Presiding

                             Submitted April 16, 2013**

Before:        CANBY, IKUTA, and WATFORD, Circuit Judges.

       Kenneth Henry McDonald, Jr. appeals from the district court’s revocation of

supervised release and the nine-month sentence imposed upon revocation. We

have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.



          *
             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).
      McDonald contends, and the government agrees, that the district court

improperly delegated judicial authority by construing Standard Condition 3 to

permit the probation officer to prohibit McDonald from possessing certain types of

cell phones and images of minors. A district court may only “delegate to the

probation officer the details of where and when the condition will be satisfied.”

United States v. Stephens, 424 F.3d 876, 880 (9th Cir. 2005). Here, construing

Standard Condition 3 to allow the probation officer to impose new substantive

conditions was an improper delegation regarding the “primary decision” of what

supervised release conditions should be imposed. See id. at 882. Accordingly, we

vacate the judgment and remand for resentencing solely on the basis of

McDonald’s violation of Special Condition 8.

      VACATED and REMANDED.




                                          2                                    12-10412
