
    UNITED STATES of America, Plaintiff—Appellant, v. John DANIEL, Defendant—Appellee.
    No. 03-50195.
    D.C. No. CR-02-00680-RMT.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Sept. 15, 2004.
    Decided Sept. 20, 2004.
    Ronald L. Cheng, Office of the U.S. Attorney, Los Angeles, CA, for Plaintiff-Appellant.
    James H. Locklin, Federal Public Defender, Federal Public Defender’s Office, Los Angeles, CA, for Defendant-Appellee.
    Before THOMPSON, SILVERMAN, and WARDLAW, Circuit Judges.
   ORDER

John Daniel pleaded guilty to one count of being a felon in possession of a firearm and received a sentence of thirty-four months. In imposing this sentence, the district court granted a twelve-month downward departure based on its finding that Daniel had attempted to rid himself of the firearm before being apprehended by police.

On the record as it stands, Daniel’s conduct does not amount to the atypical case necessary to take him outside the heartland of the guidelines for felon in possession cases. The record does reflect that the district court failed to give the parties advanced notice of its intent to depart on this basis, see Fed.R.Crim.P. 32(h); accordingly, Daniel cannot be faulted for having failed to present evidence to warrant the departure. We vacated the sentence and remand for resentencing.

On resentencing, the district court shall not be bound by 18 U.S.C. § 3742(g)(2) because Daniel’s original sentence was imposed prior to the effective date of the PROTECT Act, 18 U.S.C. 3742, and the requirement that the district court include a written statement of reasons now mandated by 18 U.S.C. § 3553(c).

VACATED and REMANDED for re-sentencing. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     