UNITED STATES of America, Plaintiff-Appellee, v. Anthony Dane ROBERTY, Defendant-Appellant, 689 F. App'x 492

MEMORANDUM The government conceded that Amendment 801 to U.S. Sentencing Guidelines § 2G2.2(b)(3)(

F) was a retroactive, clarifying amendment. Thus, we treat the amendment as retroactively applying to Roberty. See United States v. Morgan, 376 F.3d 1002, 1010-11 (9th Cir. 2004). The government also conceded that the district court erred in calculating Rober-tas guidelines range by applying the

section and increasing his offense level by two. The error was not harmless. “A mistake in calculating the recommended Guidelines sentencing range is a significant procedural error that requires us to remand for resentencing.” United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011) (citations omitted). Under the amended guidelines section, Roberty does not qualify for the two-level increase in § 2G2.2(b)(3)(F). Roberty is also potentially eligible for an additional two-level decrease. See U.S.S.G. § 2G2.2(b)(l).

These changes would give Roberty a different guidelines range that does not substantially overlap with the range the district court calculated. Therefore, we must vacate Ro-bertas sentence and remand to the district court for resentencing. VACATED AND REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.