
    UNITED STATES of America, Plaintiff—Appellee, v. Kelly J. MICHAEL, Defendant—Appellant.
    No. 11-10235.
    United States Court of Appeals, Ninth Circuit.
    Submitted Dec. 19, 2011.
    
    Filed Dec. 22, 2011.
    Jill M. Thomas, Assistant U.S., Matthew C. Stegman, Assistant U.S., United States Attorney’s Office, Sacramento, CA, for Plaintiff-Appellee.
    John Paul Balazs, Law Offices of John P. Balazs, Sacramento, CA, for Defendant-Appellant.
    
      Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. Appellant. P. 34(a)(2).
    
   MEMORANDUM

Kelly J. Michael appeals from his sentence of 12 months of probation imposed following his guilty-plea conviction for possession of a controlled substance, in violation of 21 U.S.C. § 844(a). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.

Michael contends that the district court erred by denying his request for pre-judgment probation under 18 U.S.C. § 3607(a) (allowing for a term of probation and dismissal of the proceedings “before the expiration of the term of probation, if the person has not violated a condition of his probation”). It is undisputed that Michael qualified for pre-judgment probation. The district court denied Michael pre-judgment probation based on the mistaken belief that Michael was required to make the request before sentencing. Accordingly, we vacate and remand for resentencing to determine whether pre-judgment probation should be imposed under section 3607(a). See United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.2009) (en banc) (“[A] district court abuses its discretion when it makes an error of law.”).

VACATED and REMANDED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     