U.S. v. Munoz–camarena

• Decision Date: 28 January 2011
• Docket Number: No. 09–50088.,09–50088.
• Citation: 631 F.3d 1028
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Eduardo MUNOZ–CAMARENA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

631 F.3d 1028
11 Cal. Daily Op. Serv. 1309
2011 Daily Journal D.A.R. 1670

UNITED STATES of America, Plaintiff–Appellee,
v.
Eduardo MUNOZ–CAMARENA, Defendant–Appellant.

No. 09–50088.

United States Court of Appeals, Ninth Circuit.

Argued Feb. 5, 2010.Submitted Sept. 3, 2010.Filed Jan. 28, 2011.

[631 F.3d 1029]

Caroline Han, Mark R. Rehe, Office of the U.S. Attorney, San Diego, CA, for the plaintiff-appellee.Erica Kristine Zunkel, Steven Francis Hubachek, Kristi A. Hughes, Federal Public Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. D.C. No. CR–02701–LAB–1.Before: BETTY B. FLETCHER, HARRY PREGERSON, and SUSAN P. GRABER, Circuit Judges.

ORDER

The Opinion filed September 3, 2010, slip op. 13455, and appearing at 621 F.3d 967 (9th Cir.2010), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.

The petition for panel rehearing is granted in part. A new opinion is being filed concurrently with this order.

The parties may file new petitions for rehearing or petitions for rehearing en banc.

OPINION PER CURIAM:

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, ––– U.S. ––––, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010), which casts doubt on the district court's calculation of the recommended Guidelines sentence in this case. We vacate the Appellant's sentence and remand for re-sentencing.

The U.S. Sentencing Guidelines Manual ¹ 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, 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.² 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, 130 S.Ct. at 2579. Because the Defendant's

[631 F.3d 1030]

prior convictions do not qualify as aggravated felonies, but do qualify as felonies,³ 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 Government argues that a remand is unnecessary because the district court's error was harmless. The district court stated that it was going to sentence Munoz–Camarena to 65 months regardless of whether the four- or eight-level enhancement applied and also stated that it would apply the same sentence if the Ninth Circuit were to order resentencing.⁴

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, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (quoting Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)); see also Gall, 552 U.S. at 51, 128 S.Ct. 586 (holding that improperly...