### FO R PUB L ICAT IO N UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, : No. 12-10628 : Plaintiff-Appellee , : D.C. No. 5:10-cr-00729-EKD-1 : v. : OPINION : STEVEN LEE VARGEM : : Defendant-Appellant. : Appeal f rom the United States District Court f or the Northen District of Calif ornia E dward J. Davila, Presiding Argued and Subm itted February 11, 2014 San Francisco, Calif

o rnia Bef ore: REINHARDT and THOMAS, Circuit Judges, and SESSIONS, District Judge. * SESSIONS, District Judge: Steven Lee Vargem

was convicted of

possessing an unregistered m achine gun and sentenced to 30 m onths in prison. 1 On appeal, the governm ent concedes that the district court m i scalculated Vargem ’s base of f ense level under the United States Sentencing Guidelines (“Guidelines”). W e hold that the district court also erred in apply i ng a sixlevel enhancem ent on the basis of other weapons f

ound at Vargem ’s hom e. W e theref ore 

# FIL ED

MAR 28 2014

M OLLY C. DW Y E R, CLERK U. S. CO URT O F APPEALS

* T he Honorable W illiam K. Sessions III, District Judge f or the U.S. District Court f or the District of

Verm o nt, sitting by

designation.

1 Vargem appealed both his conviction and sentence. In a separate unpublished m em orandum

disposition f

iled concurrently

with this opinion, we af

f irm the conviction.vacate and rem and f or resentencing. BACKGROUND On June 19, 2010, San Jose police responded to a dom estic assault call at the Vargem residence. W h en the of

f icers arrived, Vargem ’s wif e Ly n da reported that her husband had phy sically

assaulted her. Vargem

was no longer at the house. The police subsequently

contacted a Santa Clara County judicial of

f i cer and obtained an em ergency protective order (“EPRO”) on Ly nda’s behalf

. The EPRO, valid through June 25, 2010, stated that Vargem

m ust not “contact, m olest, harass, attack, strike, [ or] threaten” his wif e, and ordered him

to stay at least 300 y ards away

f rom his residence. The EPRO f urther stated that persons subject to a restraining order are prohibited f r om owning, possessing, purchasing, receiving, or attem pting to purchase or receive a f irearm

. San Jose police of

f i cer Duane Tuell was assigned to investigate the incident. Of f icer Tuell reviewed a law enf orcem ent database and discovered that Vargem had twelve f irearm s registered in his nam e . On June 24, 2010, Of f icer Tuell contacted Ly

nda about the f

irearm s , and learned that they were in saf

e s to which she did not have access. Ly nda also told Of

f icer Tuell that she had seen her husband put a pistol into a gun saf e approxim a tely

two m onths prior to the assault. In a subsequent conversation that sam e day , Ly nda described f

or Of f icer Tuell the vehicles to which her husband m ight have access, including a white van registered to his business. Of f icer Tuell then telephoned Vargem to ask about the f

i rearm s. He identif

ied him self as a police of

f icer, and told Vargem

that pursuant to the EPRO all f irearm s m ust 2be surrendered. Vargem acknowledged that he was aware of the EPRO, and stated that he did not know what weapons were in the house. W hen Of f icer Tuell asked f

or consent to search three saf

es in the house, Vargem

replied that he wished to discuss the request with his lawy er. Of

f i cer Tuell inf

orm ed Vargem

that absent consent he would obtain a search warrant, at which point Vargem asked if he could call right back. Of f icer Tuell agreed, but Vargem

did not call back. Af ter not hearing f

r om Vargem , Of

f icer Tuell sent a patrol unit to the Vargem residence. W hen the of

f icers arrived, they

saw a white van registered to Vargem parked in the driveway , and Vargem loading unknown item s into the van. They waited f or him to drive away

f rom the residence and conducted a vehicle stop a f ew blocks away . The of f icers arrested Vargem

f or violating the EPRO, searched the van, and discovered an unloaded pistol. Of f icer Tuell then obtained a warrant to search the hom e. The search revealed 28 f irearm s. 2 One of

the f irearm s was an unregistered m achine gun. Vargem later adm itted that he owned the gun, and that he had converted it f rom a sem i-autom atic pistol to a

m achine gun. He was ultim ately indicted f

or unlawf ul possession of

a m achine gun in violation of 18 U.S.C. §§ 922(o) and 924(a)(2), and unlawf ul possession of

an unregistered f

irearm in violation of

26 U.S.C. §§ 5841, 5861(d), and 5871. Both counts

2 This fig ure includes the g un found in the van, as it was listed on the search warrant return. B e cause the parties consistently refer to each of the 28 firearms as having been found at the home, and since the distinction between the van and the house is of no import to our analy sis, the Court will do the same. 3were predicated upon the sam e weapon, and no charges were brought with respect to any

of the rem aining guns. Vargem waived his right to a jury trial and agreed to a stipulated-testim ony bench trial. The district court convicted him of the two charged counts. At sentencing, and based upon the recom m e ndations set f orth in the Pre-Sentence Investigation Report (“PSR”), the court f

ound a base of

f ense level of

20 f or possession of

a m a chine gun by

a prohibited person. U.S.S.G. § 2D2.1(a)(4)(B). The court also applied a six-level enhancem ent f

or m u ltiple f irearm s, based upon the 28 f irearm s f ound in Vargem ’s hom e, under § 2K2.1(b)(1)(C). W ith a crim inal history category II, the resulting Guideline range was 70 to 87 m onths. Def ense counsel argued f

or a 21-m onth sentence, the governm ent f

or 77 m onths. The court considered sentencing f actors under 18 U.S.C. § 3553 and im

posed a 30-m onth sentence. According to Vargem ’s current counsel, Vargem ’s projected release date is August 12, 2014. DISCUSSION I. The District Court’s Calculation of Vargem ’s Base Offense Level Constituted Plain Error The district court applied a base of f ense level of

20 pursuant to U.S.S.G. § 2K2.1(a)(4). Because Vargem did not contest his base of f e n se level at sentencing, the Court reviews the district court’s determ ination f or plain error. S

ee United States v. Guzman–Mata , 579 F.3d 1065, 1068 (9th Cir. 2009). Section 2K2.1(a)(4)(B) pertains, in relevant part, to persons convicted of

4possessing a m achine gun or other f irearm who were also prohibited persons under 18 U.S.C. § 922(g)(8). 3 See U.S.S.G. § 2K2.1, Application Note 3. Section 922(g)(8)(A) covers persons subject to restraining orders, but only when such orders were issued af ter notice and a hearing. See 18 U.S.C. § 922(g)(8)(A). Here, it is undisputed that the EPRO was issued without either notice or a hearing. Accordingly , the governm ent properly concedes that Section 922(g)(8) did not apply , that Vargem was not a prohibited person under § 2K2.1, and the base of f ense level should have been 18 pursuant to § 2K2.1(a)(5). The governm ent does not concede, however, that resentencing is required. Because Vargem received a sentence well below his calculated Guidelines range, the governm ent contends that a two-point correction in the base of f ense level would not af f ect his substantial rights. Under the plain error standard, relief is warranted where the district court comm itted (1) error that (2) is plain; (3) “af f ected substantial rights;” and (4) “seriously af f e cted the f

airness, integrity , or public reputation of judicial proceedings.” United States v. Teague , 722 F.3d 1187, 1190 (9th Cir. 2013). The governm ent concedes only the f irst two elem ents. To show an error af

f ecting substantial rights, Vargem m ust “dem onstrate ‘a

3 The Guidelines state that “[ t]he court shall use the Guidelines Manual in ef f ect on the date that the def

endant is sentenced,” § 1B1.11(a), unless use of that Manual “would violate the ex post f acto clause of the United States Constitution,” § 1B1.11(b)(1). Because there is no ex post f acto issue in this case, we use the 2012 edition of the Guidelines Manual, which was in ef f ect on Decem

b er 3, 2012, at the tim e of Vargem ’s sentencing.

5reasonable probability that [ he] would have received a dif f erent sentence’ if

the district court had not erred.” United States v. Tapia , 665 F.3d 1059, 1061 (9th Cir. 2011) (quoting United States v. W aknine , 543 F.3d 546, 554 (9th Cir. 2008)). “A ‘reasonable probability ’ is, of course, less than a certainty , or even a likelihood.” Id. (citing United States v. Dominguez Benitez , 542 U.S. 74, 86 (2004) (Scalia, J., concurring in the judgm ent) (observing that the “reasonable probability ” standard is m ore “def endant-f riendly ” than the “m ore likely than not” standard)). Further, the plain error standard does not require “direct evidence of what sentence would have been im posed if not f or the district court’s error.” Id. Here, the district court calculated a Guidelines range of 70 to 87 m onths. A twolevel reduction would have rendered a range of 57 to 71 m onths. The district court im p osed a sentence below the latter range, but higher than the prison term sought by def ense counsel. In the course of the sentencing hearing, the district court considered a host of f actors pursuant to 18 U.S.C. § 3553(a), including Vargem ’s lim ited crim inal history , his success as a businessm an, and his role as a provider f o r his f am ily . The court restated the incorrect Guidelines range im m e diately prior to announcing Vargem ’s sentence, and declared that it would im pose a discretionary

downward variance. At any sentencing, “the Guidelines are the starting point and the initial benchm ark, and are to be kept in m ind throughout the process.” United States v. Carty , 520 F.3d 984, 991 (9th Cir. 2008) (internal citations and quotation m arks om i tted). Accordingly , the district court’s “f

a ilure accurately

to state the [ correct] Guidelines range” in this case

6“derailed the sentencing proceeding bef ore it even began.” United States v. Doe , 705 F.3d 1134, 1154 (9th Cir. 2013). The Suprem e Court has held that “im properly calculating[ ] the Guidelines range” constitutes a “signif i cant procedural error,” Gall v. United States , 552 U.S. 38, 51 (2007), and this Court has sim ilarly concluded that “[ a]

m istake in calculating the recom m ended Guidelines sentencing range is a signif i cant procedural error that requires us to rem and f or resentencing.” United States v. Munoz–Camarena , 631 F.3d 1028, 1030 (9th Cir. 2011). W h ile in Vargem ’s case it is “dif f icult to discern the district court’s intentions,” we f ind that a proper Guidelines calculation “could easily have . . . led the district court to im p ose” a lesser sentence. United States v. Hammons , 558 F.3d 1100, 1106 (9th Cir. 2009). The district court noted Vargem ’ s lif e accom plishm ents as well as his f ailures, and chose to depart signif icantly f rom the erroneously -calculated range. Had the district court started with the correct Guidelines range, there is a reasonable probability that it would have im

posed a dif

f erent sentence. See, e.g., United States v. Bonilla-Guizar , 729 F.3d 1179, 1188-89 (9th Cir. 2013) (holding that a two-level error in the base of f ense level calculation was plain error even though the def endant’s “sentence chanced to f all within the proper sentencing range”); Hammons , 558 F.3d at 1106 (f inding plain error where the district court’s application of an incorrect Crim inal History Category m ay have led to “an additional one m onth of im prisonm ent”). “W e have held that when a sentencing judge incorrectly calculates the Guidelines range, potentially resulting in the im p osition of

a greater sentence, the error af f ects the

7def

endant’s substantial rights and ‘the f airness of the judicial proceedings.’ As this is precisely what happened in this case, the third and f ourth prongs of the plain-error test are satisf i ed.” B onilla-Guizar , 729 F.3d at 1188 (quoting United States v. Castillo–Marin , 684 F.3d 914, 927 (9th Cir. 2012)). Indeed, this Court has “regularly deem ed the f ourth prong of the plain error standard to have been satisf ied where, as here, the sentencing court com m itted a legal error that m ay have increased the length of a def endant’s sentence.” Tapia , 665 F.3d at 1063 (listing cases). It is easy to see why

prejudicial sentencing errors [ satisf y the f ourth elem e nt]: such errors im

p ose a longer sentence than m ight have been im p osed had the court not plainly erred. Def

e ndants . . . m ay

be kept in jail f or a num ber of y ears on account of a plain error by

a court, rather than because their wrongf

ul conduct warranted that period of incarceration. Moreover, there is little reason not to correct plain sentencing errors when doing so is so sim

ple a task. . . . Reversing a sentence does not require that a def endant be released or retried, but sim ply allows a district court to exercise properly its authority to im pose a legally appropriate sentence. Id. (quoting United States v. Castillo-Casiano , 198 F.3d 787, 792 (9 t h Cir. 1999)). Accordingly , we f

ind that the district court comm itted plain error in its m iscalculation of Vargem ’s base of

f ense level. 4 II. The District Court’s Application of a Six -Level Enhancem ent for Ow n ership of Additional Firearm s Constituted Plain Error The district court also applied a six-level, m ultiple-gun enhancem ent under

4 Our conclusion is bolstered by the additional error, discussed below, with respect to the m ultiple-gun enhancem ent under U.S.S.G. § 2K2.1(b)(1). See Doe , 705 F.3d at 1156 (holding “that the cum ulative ef f ect of ” p rocedural violations am ounted to plain error). 8U.S.S.G. § 2K2.1(b)(1) based upon the 28 f irearm s. That enhancem ent was predicated upon the PSR’s conclusions that the guns were seized “[ d]uring the course of the of f ense,” and that Vargem

“was prohibited f

rom possessing any

f irearm .” The PSR, and subsequently

the district court, did not explicitly consider whether each of the weapons constituted “relevant conduct” under the Guidelines. See United States v. Santoro , 159 F.3d 318, 321 (7th Cir. 1998) (noting that “[ w]hen a court determ ines the num ber of f irearm s involved in an of f ense under U.S.S.G. § 2K2.1(b)(1), it looks to the relevant conduct section of

the guidelines . . . .”). Because we conclude that possession of the

rem aining f

irearm s was not “relevant conduct” in relation to Vargem ’s of f ense of conviction—ownership of an unregistered m achine gun—we f ind that the six-level enhancem ent was erroneous. A. Sentencing Proceedings and Standard of Review The Probation Of

f icer’s analy s is with respect to the m ultiple-gun enhancem ent was as f ollows: Specific Offense Characteristics: According to USSG §2K2.1(b)(1)(C), if the of f ense involved 25 to 99 f

irearm s, increase by

6-levels. During the course of the of f ense, law enf

orcem ent seized 28 f

irearm s f r om the def endant’s residence. The def e ndant was prohibited f

rom possessing any f irearm . Theref

ore, a 6-level increase is warranted. Def ense counsel’s sentencing m em orandum did not contest the six-level enhancem ent. Counsel did argue, however, that the court should consider Vargem ’s otherwise-lawf ul

9possession of f irearm s as f

avoring a downward departure under 18 U.S.C. § 3553(a)(1). 5 At the sentencing hearing, def ense counsel again objected to a f u ll six-level enhancem ent, urging the district court to consider m itigating f a ctors such as: Vargem ’s lawf ul purchases of

the f irearm s in question; that the f irearm s had never been used f or any purpose other than collection; that m any of the f irearm s were still in their original packaging; and that the f

irearm s were secured in saf es. The district court overruled def ense counsel’s objection. Since def ense counsel did not directly contest the applicability

of the six-level enhancem ent, and instead argued f or a departure under 18 U.S.C. § 3553(a)(1), we again review f or plain error. See Guzman–Mata , 579 F.3d at 1068. B. Relevant Conduct Our analy sis begins with the m ultiple-gun enhancem ent provision itself . Guideline § 2K2.1(b), entitled “Specif ic Of f ense Characteristics,” provides f or of f e nse level increases under certain circum stances, including “[ i]f the of f ense involved three or m o re f irearm s.” U.S.S.G. § 2K2.1(b)(1). W hen “the of f ense” involved between three and seven f irearm s, a two-level increase is warranted. Id. § 2K2.1(b)(1)(A). For an “of f ense” involving between eight and 24 f i rearm s, the Guidelines call f or a f our-level increase. Id. § 2K2.1(b)(1)(B). In this case, the district court adopted the PSR’s recom m endation of a

5 Section 3553(a)(1) allows the sentencing court to consider “the nature and circum stances of

the of f ense and the history

and characteristics of

the def endant.” 18 U.S.C. § 3553(a)(1). 10six-level increase under § 2K2.1(b)(1)(C), which applies to “of f enses” involving between 25 and 99 f

i rearm s. The Guidelines def

ine “of f ense” as “the of

f ense of conviction and all relevant conduct under § 1B1.3.” Id. § 1B1.1, Application Note 1(H). Relevant conduct includes “all acts and om issions comm itted, aided, abetted, counseled, com m a nded, induced, procured, or willf

ully caused by

the def endant . . . that occurred during the com m ission of the of f ense of conviction, in preparation f or that of f ense, or in the course of attem pting to avoid detection or responsibility f or that of f ense.” Id. § 1B1.3(a)(1). Relevant conduct

m ay also include uncharged of f enses that would be grouped under § 3D1.2(d), and that were “part of the sam e course of conduct or com m on schem e or plan as the of f e nse of conviction.” Id. § 1B1.3(a)(2). Grouping occurs under § 3D1.2(d) “[ w]hen the of f ense level is determ ined largely on the basis of

the total am ount of

harm or loss, the quantity

of a substance involved, or som e other m easure of aggregate harm , or if

the of f ense behavior is ongoing or continuous in nature . . . .” Id. § 3D1.2(d). Echoing the language of

§ 1B1.3(a)(2), the governm ent asserts that all 28 weapons were part of

a com m on schem e or plan and the sam e course of conduct. Specif ically , the governm ent subm its that when Of f icer Tuell asked to access Vargem ’s f irearm s, Vargem

lied in an ef

f o rt to conceal his collection, and in doing so treated all of his weapons the sam e. This course of conduct, the governm e nt contends, constituted a

comm on schem e . W h ile this argum ent m ay have surf ace appeal, it obscures the crux of the relevant conduct analy sis, which is the relationship to the of f ense of conviction. See 11United States v. Pinnick , 47 F.3d 434, 439 (D.C. Cir. 1995) (when of f ering collateral conduct f or a court’s consideration under § 1B1.3(a)(2) , the governm ent m ust “dem onstrate a connection between [ that conduct] and the o ffense of conviction ”); cf. United States v. Farah , 991 F.2d 1065, 1070 (2d Cir. 1993) (“The central f ocus of the of f ense-level com

ponent of a Guidelines calculation is the nature of the def endant’s conduct in connection with the of f ense of conviction.”). The Application Note to § 1B1.3 def ines “com m o n schem e or plan” as f ollows: (A) Comm on schem e or plan. For two or m o re of f enses to constitute part of a com m on schem e or plan, they m ust be substantially

connected to each other by at least one com m on f

actor, such as com m o n victim s, comm o n accom plices, comm on purpose, or sim ilar m odus operandi. For exam ple, the conduct of

f i ve def endants who together def rauded a group of

investors by com puter m anipulations that unlawf ully transf erred f unds over an eighteen-m onth period would qualif y as a com m on schem e or plan on the basis of any of the above listed f

actors; i.e., the com m onality of victim s (the sam e investors were def

rauded on an ongoing basis), com m onality of of f enders (the conduct constituted an ongoing conspiracy ) , comm onality of purpose (to def

raud the group of

investors), or sim ilarity

of m odus operandi (the sam e or sim i lar com

puter m anipulations were used to execute the schem e). U.S.S.G. § 1B1.3, Application Note 9(A). This Court has long held that “the essential

com ponents of

the section 1B1.3(a)(2) analy sis are sim i larity , regularity , and tem poral proxim ity .” United States v. Hahn , 960 F.2d 903, 910 (9th Cir. 1992); see also U.S.S.G. § 1B1.3, Application Note 9(B) (def ining “[ s ]am e course of

conduct”). Vargem was convicted of possessing an unlawf ul, unregistered m achine gun. The conduct giving rise to that of f e nse was his active m o dif ication of a legal weapon into a weapon that was prohibited under 18 U.S.C. § 922(o). In contrast, other weapons

12discovered at his hom e were legally -purchased, unm o dif ied, and in som e instances, still in their original packaging. W hen those otherwise-lawf ul weapons were rendered suddenly unlawf u l by the EPRO, there was no com m on schem e or plan to possess all 28 weapons unlawf

ully

. Indeed, apply ing the def

inition of a com m on schem e or plan set f orth in the Application Note, there were no com m on victim s or accom plices with respect to the 28 f irearm s in question. See U.S.S.G. § 1B1.3, Application Note 9(A). Nor was there a

comm on purpose or m odus operandi

. Id. Sim i larly , Vargem ’s possession of other weapons was not part of the sam e course of conduct, as there was no “single episode, spree, or ongoing series of of f enses.” Id. , Application Note 9(B). Instead, num erous weapons were rendered tem p orarily unlawf ul by an alleged assault that bore no relationship in tim e, purpose, or m ode to the m achine gun of f ense. Relevant conduct in f

irearm s cases generally

arises under one of

two scenarios. The f irst is where the f

i rearm s are otherwise legal but the def endant, usually

due to crim inal history or prohibited status under f e deral law, is not able to legally possess them

. See, e.g., U

nited States v. Brummett , 355 F.3d 343, 344-45 (5th Cir. 2003); U nited States v. Powell , 50 F.3d 94, 104 (1st Cir. 1995). The second is where the def endant is not a prohibited person per se , but the f irearm s he possessed were illegal f or him , or any one else, to own. This case does not f it within the f

irst scenario, as the governm ent concedes that Vargem

was not a prohibited person under f ederal law. The Court m

ust theref ore consider the second scenario, and based upon the current record, there is no evidence to 13support the conclusion that each of Vargem ’s other 27 f

irearm s was illegal. Accordingly , it was error f or the district court to have included all 28 f irearm s under § 2K2.1(b)(1). W e f urther f ind, f or substantially the sam e reasons set f orth above regarding m iscalculation of the base of

f ense level, that application of a f ull six-level enhancem ent violated Vargem ’s substantial rights. See, e.,g., Bonilla-Guizar , 729 F.3d at 1188. A s this error m ay well have resulted in a longer sentence, it also af f ected the f airness of the judicial proceedings. Tapia , 665 F.3d at 1063. W e theref ore vacate Vargem ’s sentence, and rem and to the district court f or f urther proceedings. III. The District Court’s Im position of a Fine Was Not Erroneous Vargem ’s f

inal argum ent is that the district court erred when it im posed a $12,500 f ine without considering the relevant statutory or Guidelines f actors. The court reviews the f ine determ ination f

or clear error, United States v. Brickey , 289 F.3d 1144, 1152 (9th Cir. 2002), overruled on other grounds by United States v. Contreras , 593 F.3d 1135, 1136 (9th Cir. 2010)) , a nd the burden is on Vargem t o show inability t o pay by a preponderance of

evidence. See United States v. Robinson , 20 F.3d 1030, 1033 (9th Cir. 1994). U.S.S.G. § 5E1.2(a) states that a court “shall im pose a f ine in all cases, except where the def

endant establishes that he is unable to pay and is not likely

to becom e able to pay a n y

f ine.” Here, Vargem

did not provide a f

inancial statem e nt. The PSR f ound that his business had several pieces of valuable m achinery , that his credit history showed

m inim al debt, that he was supporting him self on a savings account while in custody , and

14that he had retained counsel. The PSR theref ore concluded that a f

ine was appropriate, and recom m ended an am ount at the low end of the Guidelines range. Vargem objected to the im position of

a f i ne, arguing that his state and f ederal crim inal proceedings had resulted in substantial f

inancial losses, and that his im prisonm e nt deprived him of the ability to provide a f

inancial statem ent. Vargem now argues that the district court f ailed to f o llow § 5E1.2(d)(2), which requires a court to consider “any evidence presented as to the def endant’s ability

to pay the f ine (including the ability

to pay over a period of

tim e) in light of

his earning capacity and f inancial resources.” U.S.S.G. § 5E1.2(d)(2). The district court noted the lack of a f inancial statem ent, reviewed the f actual f indings set f

orth in the PSR, and heard Vargem ’s oral assertions at sentencing. Although the court did not cite specif i c f inancial resources when determ ining the f i ne, “[ a] district court need not articulate every f actor involved in sentencing.” U nited States v. Orlando , 553 F.3d 1235, 1240 (9th Cir. 2009). The district court’s im

position of a f

ine is af f irm ed. CONCLUSION For the reasons set f

orth above, we hold that the district court com m itted plain error in calculating Vargem ’ s of f ense level under the Guidelines. W e af f irm the im p osition of

a f ine, vacate the sentence, and rem and f or f urther proceedings.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

15

### C O UNSE L L IST ING

Ste v e n G. Ka la r, Fe de ra l Public De fe nde r, C a ndis M itc he l l (a

rgue d), Assista

nt Fe de ra l Public De fe nde r, and Ste ve n J. Koe ninge r, R e se arc h a nd Writing Attorne y , Sa n Franc isc o, C A, for de fe nda nt-a ppe lla n t. M e l inda Ha a g, Unite d Stat e s Attorne y , B arbara J. Va l lie re , C hie f, Appe lla te Division, a

nd Owe n P. M artika

n (argue d), Assista

nt Unite d Stat e s Attorne y , San Fra nc i sc o, C A, for pla intiff-a ppe lle e .

16