UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDUARDO MUNOZ-CAMARENA,
Defendant-Appellant.
Decided January 28, 2011 Ninth Circuit Court of Appeals.
Issue: Whether the District Court correctly assessed the offense level by increasing it by eight points for past aggravated felonies.
Holding: No, the District Court was mistaken when it increased the offense level by eight points and did not begin its sentencing assessment with the correct offense level and a mistake in calculating the recommended Guidelines sentencing range is a significant procedural error.
Facts: Eduardo Munoz-Camarena appeals his 65-month sentence for attempted illegal re-entry after deportation in violation of 8 U.S.C. § 1326(a) & (b). While his appeal was pending, the Supreme Court issued its decision in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), which casts doubt on the district court’s calculation of the recommended Guidelines sentence in this case. The district court treated MunozCamarena’s three previous California convictions for simple possession, Cal. Health & Safety Code § 11350(a), as being equivalent to a conviction for federal recidivist possession, 21 U.S.C. § 844(a). Recidivist possession is an aggravated felony.
Legal Analysis and Discussion:
The U.S. Sentencing Guidelines Manual instructs a district court to increase the base offense level for illegal re-entry by eight points if the defendant was previously convicted of an aggravated felony and then deported, U.S.S.G. § 2L1.2(b)(1)(C), or four points if the defendant was previously convicted of a felony and then deported, U.S.S.G. §2L1.2(b)(1)(D).
The district court treated Munoz Camarena’s three previous California convictions for simple possession. Recidivist possession is an aggravated felony. Accordingly, the district court applied an eight-level Guidelines enhancement.
We now know that a second or subsequent conviction for simple possession does not qualify as an aggravated felony ‘”when, as in this case, the state conviction is not based
on the fact of a prior conviction.” Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) at 2579. Because the Defendant’s prior convictions do not qualify as aggravated felonies, but do qualify as felonies, the district court should have applied a four-level enhancement.
A mistake in calculating the recommended Guidelines sentencing range is a significant procedural error that requires us to remand for resentencing See United States v. Brooks, 610 F.3d 1186, 1198-99 (9th Cir. 2010); United States v. Coronado, 603 F.3d 706, 712 (9th Cir. 2010) (citing United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc)).
The Supreme Court has made clear that the district court must correctly calculate the recommended Guidelines sentence and use that recommendation as the ‘” ‘starting point and the initial benchmark.’ ” Kimbrough v. United States, 552 U.S. 85, 108 (2007) (quoting Gall v. United States, 552 U.S. 38, 49 (2007)); see also Gall, 552 U.S. at 51 (holding that improperly calculating the Guidelines range constitutes ‘”significant procedural error”); Carty, 520 F.3d at 991. The Supreme Court also has emphasized that the recommended Guidelines range must ‘”be kept in mind throughout the process.” Carty, 520 F.3d at 991; see also Gall, 552 U.S. at 50 n.6 (‘”[D]istrict courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.”).
A district court must start with the recommended Guidelines sentence, adjust upward or downward from that point, and justify the extent of the departure from the Guidelines sentence. Carty, 520 F.3d at 991-92. If it makes a mistake, harmless error review applies. United States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010).
In this case, we cannot say that the district court’s incorrect application of the eight-level enhancement was harmless. On review of the record, we conclude that, had the district court started with the correct Guidelines range of 24 to 30 months, rather than 33 to 41 months, it may have arrived at a different sentence. A district court’s mere statement that
it would impose the same above-Guidelines sentence no matter what the correct calculation cannot, without more, insulate the sentence from remand, because the court’s analysis did not flow from an initial determination of the correct Guidelines range. The court must explain, among other things, the reason for the extent of a variance. Carty, 520 F.3d at 991-92.
The extent necessarily is different when the range is different, so a one-size-fits-all explanation ordinarily does not suffice.
SENTENCE VACATED, REMANDED