FILED

NOT FOR PUBLICATION FEB 26 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 13-30111

Plaintiff - Appellee, D.C. No. 1:12-cr-00069-RFC v.

MEMORANDUM* ELROY JAY WEASELBEAR, Sr.,

Defendant - Appellant.

Appeal from the United States District Court

for the District of Montana

Richard F. Cebull, District Judge, Presiding

Submitted February 18, 2014** Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.

Elroy Jay Weaselbear, Sr., appeals from the district court’s judgment and challenges the ten-year term of supervised release imposed following his guilty- plea conviction for incest, in violation of 18 U.S.C. § 1153(b) and Montana Code

*

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). Annotated § 45-5-507(1). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

Weaselbear contends, and the government concedes, that the ten-year term of supervised release exceeds the statutory maximum. The maximum authorized term of supervised release for a Class A felony is five years. See 18 U.S.C. § 3583(b)(1). Accordingly, we vacate the term of supervised release and remand to the district court for the limited purpose of setting a new term within the statutorily permitted range. See United States v. Guzman-Bruno, 27 F.3d 420, 423 (9th Cir. 1994).

VACATED and REMANDED.

2 13-30111