Carey

MEMORANDUM *

The United States appeals the district court’s sentence and fine imposed on Peter Bernard Carey, Jr., following his guilty plea conviction for possession with intent to distribute marijuana. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We vacate and remand the sentence.

The district court erred as a matter of law by failing to make the appropriate factual findings to support a downward departure for aberrant behavior under U.S.S.G. § 5K2.20. We recently have held that prior to departing downward, a sentencing court must make separate determinations that the case is extraordinary and that the behavior was aberrant. United States v. Guerrero, 333 F.3d 1078, 1082 (9th Cir.2003). Although it appears that the factual circumstances of this case warrant a downward departure for aberrant behavior, the district court’s failure to separately determine both that the case is extraordinary and the behavior aberrant requires us to vacate the sentence and remand for resentencing.

The district court also erred in ordering that the fine imposed on Carey be distributed to the Missoula County School District rather than the Crime Victims Fund. See 42 U.S.C. § 10601 (b)(1)…