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-
LAB-1
EDUARDO MUNOZ-CAMARENA,
Defendant-Appellant. ORDER AND
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 January 28, 2011
Before: Betty B. Fletcher, Harry Pregerson, and
Susan P. Graber, Circuit Judges.
Per Curiam Opinion
1761
UNITED STATES v. MUNOZ-CAMARENA 1763
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.
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appearing at 621 F.3d 967 (9th Cir. 2010), is withdrawn.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 dis-
trict court of the Ninth Circuit.
1764 UNITED STATES v. MUNOZ-CAMARENA
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, 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 Appellant’s sentence and
remand for re-sentencing.
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
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-
UNITED STATES v. MUNOZ-CAMARENA 1765
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
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, 610
F.3d 1186, 1198-99 (9th Cir. 2010); United States v. Coro-
nado, 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
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).
1766 UNITED STATES v. MUNOZ-CAMARENA
enhancement applied and also stated that it would apply the
same sentence if the Ninth Circuit were to order resentencing.4
[2] 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 “sig-
nificant 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 pro-
cess.” 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 sen-
tencing process.”).
[3] 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 Guide-
lines sentence. Carty, 520 F.3d at 991-92. If it makes a mis-
take, harmless error review applies. United States v. Ali, 620
F.3d 1062, 1074 (9th Cir. 2010).5
4
In United States v. Menyweather, 447 F.3d 625 (9th Cir. 2006), we
applied harmless error analysis to the district court’s reasons for departing
downward from a Guidelines range. There was no dispute on appeal about
the Guidelines calculation or its correctness, id. at 630, but only about
whether the district gave a proper and adequate explanation for the signifi-
cant downward departure. Therefore, Menyweather did not decide any-
thing about whether harmless error review is available in the context of an
incorrect Guidelines calculation. It is distinguishable. Regardless of later
developments in the law, we need not revisit Menyweather, to overrule it
or otherwise.
5
For example, harmless error may result if the district court: (1)
acknowledges that the correct Guidelines range is in dispute and performs
his sentencing analysis twice, beginning with both the correct and incor-
rect range; (2) chooses a within-Guidelines sentence that falls within both
UNITED STATES v. MUNOZ-CAMARENA 1767
[4] 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 mat-
ter 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 Guide-
lines 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.
[5] We find the district court’s explanation here insuffi-
cient to explain the extent of the variance from the correct
Guidelines range. We are not convinced that the district court
would impose the same sentence if the correct Guidelines
range was “kept in mind throughout the process,” Carty, 520
F.3d at 991, and a remand for resentencing is therefore
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
the incorrect and the correct Guidelines range and explains the chosen sen-
tence adequately; (3) imposes a statutory minimum or maximum and ade-
quately explains why no additional or lesser term of imprisonment is
necessary; or (4) performs the sentencing analysis with respect to an incor-
rect Guidelines range that overlaps substantially with a correct Guidelines
range such that the explanation for the sentence imposed is sufficient even
as to the correct range. This list is not exhaustive, but is intended merely
to illustrate the general principle that harmless error is possible only where
the requirements of Gall and Carty are met.
1768 UNITED STATES v. MUNOZ-CAMARENA
took into account the fact that Munoz-Camarena had violated
the terms of his supervised release. See, e.g., United States v.
Forrester, 616 F.3d 929, 950 (9th Cir. 2010).
SENTENCE VACATED, REMANDED FOR RESEN-
TENCING.