1 NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 16

- 10503

Plaintiff

- Appell ee , D.C. No. 3:16

- CR

- 003

- MMD

- WGC
v.
RICHARD E. TURNER , MEMORANDUM *

Defendant

- Appellant.

Appeal from the United States District Court for the District of Nevada Miranda M. Du , District Judge, Presiding Argued and Submitted November 16 , 2017 San Francisco, California

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

- 3. 

# FILED

DEC 12 2017
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Before: GOULD , MURGUIA, Circuit Judges, and FREUDENTHAL , * * Chief District Judge
Defendant Richard Turner appeals from the district court’ s judgment and challenges the 46

- month sentence imposed following his guilty plea conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). We have juri sd iction under 28 U.S.C. § 1291, and w e vacate and remand

. On appeal, Turner first argues the district court improperly based his sentence
on th e need for education and t reatment in violation of Tapia v. United States , 564 U.S. 319 (2011). Turner failed to raise this claim with the district court. We review for plain error, see United States v. Valencia

- Barragan , 608 F.3d 1103, 1108 (9th Cir. 2010), and conclude t here is none. The district court recognized Turner’s need
for educational training and treatment as a component of the sentencing factors in 18 U.S.C. § 3553(a) (2) (D) . However, the record does not support Turner’s claim
that th e district court imposed or lengthened Turner’s sentence to promote education

or treatment

. See, Tapia , 564 U.S. at 330

. Turner also challenges the district court’s finding that Nevada Revised Statute (“NRS”) § 453.321 is categorically a controlled substance offense. Turner failed to
raise all of his current arguments before the district court, so we review for plain

error. Valencia

- Barragan , 608 F.3d at 1108. T he district court plainly erred by

* * The Honorable Nancy D. Freudenthal, Chief United States District Judge for the District of Wyoming, sitting by designation.3

finding NRS § 453.321 is categorically a “controlled substance offense” under the sentencing guidelines

. Nevada Revised Statute § 453.321 covers substances not
contained in the federal Controlled Substances Act. “[I]t is undisputed that Nevada
law lists at least some substances that are not on the federal list, compare 21 U.S.C. § 802 with Nev. Admin. Code §§ 453.510

– 453.550 (listing Datura, hydrogen iodide gas, human growth hormone, and Carisoprodol, as controlled substances). ” Madrigal

- Barcenas v. Lynch , 797 F.3d 643, 645 (9t h Cir. 2015) (discussing Nevada’s possession of paraphernalia statute, which contains the same drug schedules as NRS § 453.321). For these reasons, NRS § 453.321 is overbroad and
is not categorically a controlled substance offense. We remand this matter back to
the district court to determine in the first instance whether NRS § 453.321 is
divisible and , if necessary , to apply the modified categorical approach

. Having held there was a procedural error, w e do not reach Turner’s claim that
his sen tence w as substantively unreasonable. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (“ On appeal, we first consider whether the district court committed significant procedural error, then we consider the substantive
reasonableness of the sentence. ”) (citation omitted).
VACATED AND REMANDED
.