#### UNITED STATES of America, Plaintiff-Appellee, v. William Arthur STEHL, AKA William A. Stehl, Defendant-Appellant.

No. 15-50035

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 2017 Pasadena, California

Filed April 12, 2017

Stephen Anthony Cazares, Assistant U.S. Attorney, Bram Alden, Jean-Claude Andre, Assistant U.S. Attorney, DOJ—Of-fice of the U.S. Attorney, Los Angeles, CA, Steven David Clymer, Esquire, Assistant U.S. Attorney, United States Attorney’s Office, Syracuse, NY, for Plaintiff-Appellee

Ashwini Shrikrishna Mate, Assistant Federal Public Defender, FPDCA—Federal Public Defender’s Office (Los Angeles), Los Angeles, CA, for Defendant-Appellant

Before: PLACER,* BEA, and OWENS, Circuit Judges.

*

The Honorable S. Jay Plager, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation.

MEMORANDUM **

Defendant William Arthur Stehl appeals from his conviction entered following a guilty plea and from a 144-month sentence for conspiracy to commit mail fraud (18 U.S.C. §§ 1341, 1349), false statements to federal agents (18 U.S.C. § 1001), tax evasion (26 U.S.C. § 7201), and tax fraud (26 U.S.C. § 7206). As the parties are familiar with the facts, we do not recount them here. We affirm in part, vacate in part, and remand.

1. We reject Stehl’s contention that the district court violated Federal Rule of Criminal Procedure 32(e)(1) by deferring acceptance of his guilty plea, made pursuant to *North Carolina v. Alford,*400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), until after the court reviewed the presen-tence report (“PSR”). *See*Fed. R. Crim. P. 32(e)(1) (“Unless the defendant has consented in writing, the probation officer must not submit a presentence report to the court or disclose its contents to anyone until the defendant has pleaded guilty or nolo contendere, or has been found guilty.”). Despite the district court’s comments at the change-of-plea hearing, looking at the entire record, there is insufficient evidence that the court actually reviewed the PSR before accepting Stehl’s guilty plea. *See Gregg v. United States,*394 U.S. 489, 493, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969) (affirming a defendant’s conviction where “[t]he trial judge did not state that he read the pre-sentence . report before the jury verdict was delivered, nor is there any direct evidence in this record that he did”).

Moreover, Stehl failed to object to the alleged Rule 32 violation in the district court. Even if the district court did review the PSR prematurely, Stehl has not shown that he was prejudiced. As such, there was no plain error. *See United States v. Olano,*507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

2. The parties agree that a remand for resentencing is appropriate based on the *528district court’s statements that it chose Stehl’s sentence, in part, to provide him “with needed medical care or other correctional treatment in the most effective manner.” *See Tapia v. United States,*564 U.S. 319, 321, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011) (holding that federal courts are precluded “from imposing or lengthening a prison term in order to promote a criminal defendant’s rehabilitation”). We decline to grant the government’s request for a limited remand, and remand for the district court to resentence Stehl on an open record.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.