FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50088
Plaintiff-Appellee, D.C. No.
v. 3:08-CR-02701-
EDUARDO MUNOZ-CAMARENA, LAB-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued February 5, 2010
Submitted September 3, 2010
Pasadena, California
Filed September 3, 2010
Before: Betty B. Fletcher, Harry Pregerson, and
Susan P. Graber, Circuit Judges.
Per Curiam Opinion
13455
UNITED STATES v. MUNOZ-CAMARENA 13457
COUNSEL
Caroline Han, Mark R. Rehe, Office of the U.S. Attorney, San
Diego, California, for the plaintiff-appellee.
Erica Kristine Zunkel, Steven Francis Hubachek, Kristi A.
Hughes, Federal Public Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.
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, 130 S. Ct. 2577 (2010), which casts doubt on the dis-
trict court’s calculation of the recommended Guidelines sen-
tence in this case. We vacate the Defendant’s sentence and
remand for re-sentencing.
13458 UNITED STATES v. MUNOZ-CAMARENA
The U.S. Sentencing Guidelines Manual1 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 previ-
ously 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 Guide-
lines enhancement.
[1] We now know that a second or subsequent conviction
for simple possession does not qualify as an aggravated fel-
ony “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 prior convictions do not
qualify as aggravated felonies, but do qualify as felonies,3 the
1
All references are to the 2008 version of the Guidelines Manual.
2
Simple possession by itself is not an aggravated felony. The statutory
list of aggravated felonies includes “any felony punishable under . . . the
Controlled Substances Act (§ 21 U.S.C. § 801 et seq.).” 18 U.S.C.
§ 924(c). A felony is a crime for which the “maximum term of imprison-
ment” authorized is “more than one year.” 18 U.S.C. § 3156(a)(3). Under
the Controlled Substances Act, first-time simple possession is a federal
misdemeanor because the maximum authorized sentence is less than one
year. 21 U.S.C. § 844(a). However, a conviction for simple possession
“after a prior conviction under this subchapter or . . . under the law of any
State” — recidivist simple possession — is a felony with a maximum two-
year sentence. Id.
3
Munoz-Camarena has three prior convictions for simple possession,
two convictions for illegal entry, 8 U.S.C. § 1325, and one for illegal re-
entry, 8 U.S.C. § 1326. The Sentencing Guidelines define a felony as “any
federal, state, or local offense punishable by imprisonment for a term
exceeding one year.” U.S.S.G. § 2L1.2 cmt. n.2. The maximum sentence
authorized by California law for simple possession is one year, Cal. Health
& Safety Code § 11350(b), but the maximum authorized sentence for ille-
gal entry and re-entry is greater than one year, 8 U.S.C. §§ 1325(a),
1326(a).
UNITED STATES v. MUNOZ-CAMARENA 13459
district court should have applied a four-level enhancement.
A mistake in calculating the recommended Guidelines sen-
tencing range is a significant procedural error that requires us
to remand for resentencing. See United States v. Brooks, No.
08-10301, 610 F.3d 1186 (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)).
[2] 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.
In United States v. Menyweather, 447 F.3d 625 (9th Cir.
2006), we held that it was not an abuse of discretion for the
district court to depart downwards from the Guidelines sen-
tence. Id. at 628. We further held that, even if the district
court erred, “any error was harmless . . . in view of our belief
that the court would impose the same sentence again, having
steadfastly maintained its position in the face of two opportu-
nities to revise its sentence.” Id.
[3] Since Menyweather was decided, the Supreme Court
has made clear that the district court must correctly calculate
the recommended Guidelines sentence and use that recom-
mendation as the “ ‘starting point and the initial bench-
mark.’ ” 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.”). Therefore, sub-
sequent Supreme Court authority has effectively overruled the
13460 UNITED STATES v. MUNOZ-CAMARENA
application of the harmless error analysis employed in Meny-
weather to the miscalculation of a Guidelines sentence. See
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
banc) (“[W]here intervening Supreme Court authority is
clearly irreconcilable with our prior circuit authority . . . a
three-judge panel of this court and district courts should con-
sider themselves bound by the intervening higher authority
and reject the prior opinion of this court as having been effec-
tively overruled.”).
[4] Because a district court must start with the recom-
mended 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, we cannot
say that the district court’s incorrect application of the eight-
level enhancement was harmless. 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 sen-
tence. A remand for resentencing is required.
Because we are remanding on the basis of an error in the
Guidelines calculations, we need not reach Munoz-
Camarena’s alternative arguments in support of a remand: that
the district court failed to consider all of the 18 U.S.C.
§ 3553(a) factors and that the 65-month sentence improperly
took into account the fact that Munoz-Camarena had violated
the terms of his supervised release. See, e.g., United States v.
Forrester, No. 09-50029, 2010 WL 2977722, at *17 (9th Cir.
July 30, 2010).
SENTENCE VACATED, REMANDED FOR RESEN-
TENCING.