FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10480
Plaintiff-Appellee, D.C. No.
v. 1:08-CR-00177-
OWW-1
URIEL RIVERA-GOMEZ,
Defendant-Appellant. ORDER
AMENDING
OPINION AND
AMENDED
OPINION
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted
February 8, 2010—San Francisco, California
Filed December 6, 2010
Amended February 2, 2011
Before: Alfred T. Goodwin, Marsha S. Berzon and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta;
Concurrence by Judge Goodwin
2051
UNITED STATES v. RIVERA-GOMEZ 2053
COUNSEL
Daniel J. Broderick, Federal Defender, and Douglas J.
Beevers, Assistant Federal Defender, Fresno, California, for
the defendant-appellant Rivera-Gomez.
2054 UNITED STATES v. RIVERA-GOMEZ
Lawrence G. Brown, United States Attorney, and Ian L. Gar-
riques, Assistant United States Attorney, Fresno, California,
for plaintiff-appellee the United States.
ORDER
The opinion filed on December 6, 2010 and published at
626 F.3d 1129, is amended as follows.
The text in footnote 9 appearing on page 1136 should be
deleted and replaced with the following language:
Though the concurrence observes that the district
court’s error may have been harmless, the district
court has not made findings regarding Rivera-
Gomez’s intent or calculated potential upward
adjustments relating to victim, role, and obstruction
of justice. See United States v. Lococo, 514 F.3d
860, 865-66 (9th Cir. 2008). Moreover, there is noth-
ing in the record to suggest that the district court
would reach an equivalent or more severe sentence
on remand. See United States v. Ankeny, 502 F.3d
829, 841 (9th Cir. 2007). Because we cannot say
with any degree of confidence that the district
court’s error was harmless, we remand for resentenc-
ing. Having remanded on this basis, we need not
reach Rivera-Gomez’s arguments regarding other
alleged sentencing errors.
Additionally, the concurrence appearing on pages 1136-37
is deleted and replaced by the concurrence attached to this
order.
As the deadline for petitions for rehearing and rehearing en
banc has passed, no petitions for rehearing or rehearing en
banc will be entertained.
UNITED STATES v. RIVERA-GOMEZ 2055
IT IS SO ORDERED.
OPINION
IKUTA, Circuit Judge:
In calculating the defendant’s sentencing range under the
U.S. Sentencing Guidelines, the district court counted the
defendant’s prior state resisting arrest conviction as part of his
criminal history, see § 4A1.1, rather than as part of the
offense level for his crime of conviction, see § 2L1.2.1
Because a district court should account for a prior state con-
viction as part of the offense level calculation where that con-
viction was for conduct that occurred in the course of the
defendant’s attempt “to avoid detection or responsibility” for
the crime of conviction, § 1B1.3(a)(1)(A), we vacate the
defendant’s sentence and remand for resentencing.
I
Uriel Rivera-Gomez, a Mexican citizen, gained legal status
in the United States through an amnesty program in the late
1980s. He was subsequently convicted of attempted murder in
1992. In July 2000, he was convicted for driving under the
influence of alcohol. As a result of these convictions, he lost
his legal status and was deported in January 2001. Sometime
thereafter, Rivera-Gomez returned illegally to the United
States, and in July 2003, he was convicted of misdemeanors
for making a threat with intent to terrorize and for battery.
1
The Guidelines state that “[t]he court shall use the Guidelines Manual
in effect on the date that the defendant is sentenced,” § 1B1.11(a), unless
use of that Manual “would violate the ex post facto clause of the United
States Constitution,” § 1B1.11(b)(1). Because there is no ex post facto
issue in this case, we use the 2007 edition of the Guidelines Manual,
which was in effect on October 27, 2008, at the time of Rivera-Gomez’s
sentencing.
2056 UNITED STATES v. RIVERA-GOMEZ
In March 2005, Visalia police officers were investigating
reports of drug use by individuals in front of a certain resi-
dence when they noticed a modified shotgun inside a vehicle.
When officers approached Rivera-Gomez, who was among
those standing in front of the house, Rivera-Gomez pushed
one of them aside and fled into the residence. Officers fol-
lowed in pursuit, but Rivera-Gomez was able to escape after
attempting to strike them. Two weeks later, officers located
Rivera-Gomez at his home. Again, Rivera-Gomez attempted
to escape, this time by kicking a hole through the drywall and
hanging from the ceiling rafters, but officers were eventually
able to restrain and arrest him after deploying tear gas and a
Taser.
Rivera-Gomez was convicted in state court of the state fel-
ony of resisting arrest, for which he served three years in state
prison. Directly before his release, in May 2008, the federal
government charged Rivera-Gomez with being a deported
alien found in the United States after illegal reentry, in viola-
tion of 8 U.S.C. § 1326(a) and (b)(2).2 Rivera-Gomez pleaded
2
8 U.S.C. § 1326 states in relevant part:
(a) In general
Subject to subsection (b) of this section, any alien who—
(1) has been denied admission, excluded, deported, or
removed or has departed the United States while an order of
exclusion, deportation, or removal is outstanding, and there-
after
(2) enters, attempts to enter, or is at any time found in, the
United States, . . .
shall be fined under Title 18, or imprisoned not more than 2
years, or both.
(b) Criminal penalties for reentry of certain removed aliens
Notwithstanding subsection (a) of this section, in the case of any
alien described in such subsection—
...
(2) whose removal was subsequent to a conviction for com-
mission of an aggravated felony, such alien shall be fined
under such title, imprisoned not more than 20 years, or both
....
UNITED STATES v. RIVERA-GOMEZ 2057
guilty to the charge but objected to the district court’s applica-
tion of the Guidelines, because the court had included his
prior state sentence for resisting arrest as part of the criminal
history calculation. The district court denied his objection,
and Rivera-Gomez timely appealed.
II
[1] To assist in explaining Rivera-Gomez’s objection to
the district court’s sentencing calculation, we set forth a brief
overview of the procedure that a district court must apply to
determine the Guidelines’ range for a § 1326 conviction.
When sentencing a defendant for a § 1326 conviction, a dis-
trict court must calculate both the number of points associated
with the defendant’s offense level and the number of points
associated with the defendant’s criminal history. Section
1B1.1 provides step-by-step instructions for this process. The
district court must first determine the correct offense guide-
line section applicable to the offense of conviction, which in
this case is § 2L1.2 (Unlawfully Entering or Remaining in the
United States).3 See § 1B1.1(a).
3
Section 2L1.2, Unlawfully Entering or Remaining in the United States,
states the following:
(a) Base Offense Level: 8
(b) Specific Offense Characteristic
(1) Apply the Greatest:
If the defendant previously was deported, or unlawfully
remained in the United States, after—
(A) a conviction for a felony that is (i) a drug trafficking
offense for which the sentence imposed exceeded 13 months;
(ii) a crime of violence; (iii) a firearms offense; (iv) a child
pornography offense; (v) a national security or terrorism
offense; (vi) a human trafficking offense; or (vii) an alien
smuggling offense, increase by 16 levels;
(B) a conviction for a felony drug trafficking offense for
which the sentence imposed was 13 months or less, increase
by 12 levels;
2058 UNITED STATES v. RIVERA-GOMEZ
The Guidelines next direct the court to “[d]etermine the
base offense level and apply any appropriate specific offense
characteristics, cross references, and special instructions con-
tained in the particular guideline in Chapter Two in the order
listed.” § 1B1.1(b). In this case, the § 2L1.2(a) guideline pro-
vides a single base offense level of eight points for violations
of § 1326, and sets forth “Specific Offense Characteristics”
that require the district court to increase the offense level if
the defendant was previously deported or unlawfully
remained in the United States after being convicted of speci-
fied felonies.4 Section 1B1.3 (Relevant Conduct) explains that
the district court is to determine the specific offense charac-
teristics on the basis of whether they are “acts and omissions
committed, aided, abetted, counseled, commanded, induced,
procured or willfully caused by the defendant . . . that
occurred during the commission of the offense of conviction,
in preparation for that offense, or in the course of attempting
to avoid detection or responsibility for that offense.”
§ 1B1.3(a)(1)(A) (emphasis added).
Once the base offense level and special offense characteris-
tics are determined, the district court must calculate applica-
ble upward adjustments, including those relating to victim,
role, and obstruction of justice. See § 1B1.1(c). Potentially
relevant here, a court may impose an upward adjustment if the
victim was a government officer, see § 3A1.2(a), if the defen-
dant assaulted a law enforcement officer “in a manner creat-
(C) a conviction for an aggravated felony, increase by 8
levels;
(D) a conviction for any other felony, increase by 4 levels;
or
(E) three or more convictions for misdemeanors that are
crimes of violence or drug trafficking offenses, increase by
4 levels.
4
Section 2L1.2 does not set forth any cross references or any applicable
special instructions.
UNITED STATES v. RIVERA-GOMEZ 2059
ing a substantial risk of serious bodily injury,” see
§ 3A1.2(c)(1), or if the defendant “recklessly created a sub-
stantial risk of death or serious bodily injury to another person
in the course of fleeing from a law enforcement officer,” see
§ 3C1.2. Finally, the district court must calculate any applica-
ble downward adjustment for the defendant’s acceptance of
responsibility. See § 1B1.1(e).
After the district court has calculated the offense level, it
must determine the defendant’s criminal history category pur-
suant to Chapter 4(A). See § 1B1.1(f). The court makes this
calculation by adding points for each qualifying prior sen-
tence according to the instructions in § 4A1.1.5 The term
5
Section 4A1.1, Criminal History Category, provides:
The total points from items (a) through (f) determine the criminal
history category in the Sentencing Table in Chapter Five, Part A.
(a) Add 3 points for each prior sentence of imprisonment exceed-
ing one year and one month.
(b) Add 2 points for each prior sentence of imprisonment of at
least sixty days not counted in (a).
(c) Add 1 point for each prior sentence not counted in (a) or (b),
up to a total of 4 points for this item.
(d) Add 2 points if the defendant committed the instant offense
while under any criminal justice sentence, including probation,
parole, supervised release, imprisonment, work release, or escape
status.
(e) Add 2 points if the defendant committed the instant offense
less than two years after release from imprisonment on a sentence
counted under (a) or (b) or while in imprisonment or escape sta-
tus on such a sentence. If 2 points are added for item (d), add
only 1 point for this item.
(f) Add 1 point for each prior sentence resulting from a convic-
tion of a crime of violence that did not receive any points under
(a), (b), or (c) above because such sentence was counted as a sin-
gle sentence, up to a total of 3 points for this item.
The Guidelines allow adjustments to be made if a defendant is a career
offender, see § 4B1.1, but no such adjustments are applicable in this case.
2060 UNITED STATES v. RIVERA-GOMEZ
“prior sentence” is defined in § 4A1.2(a) to mean “any sen-
tence previously imposed upon adjudication of guilt, whether
by guilty plea, trial, or plea of nolo contendere, for conduct
not part of the instant offense.” § 4A1.2(a) (second emphasis
added). The commentary to this section of the Guidelines
defines “conduct that is part of the instant offense” to mean
“conduct that is relevant conduct to the instant offense under
the provisions of § 1B1.3 (Relevant Conduct).” § 4A1.2 cmt.
n.1.
[2] In sum, when a defendant has received a prior sen-
tence, the district court must determine whether to take the
prior sentence into account in either the base offense level cal-
culation or the criminal history calculation. To do so, the dis-
trict court must determine whether the conduct underlying
that prior sentence is relevant to the crime of conviction, as
defined in § 1B1.3(a)(1)(A). If the conduct underlying the
prior sentence constitutes relevant conduct to the crime of
conviction, then it must be included in the offense level calcu-
lation (i.e., it is accounted for as part of the specific offense
characteristics), and cannot be included in the criminal history
calculation even if the conduct resulted in a criminal conviction.6
See § 4A1.2 cmt. n.1. On the other hand, if the conduct under-
lying the prior sentence is not relevant to the crime of convic-
tion, then the prior sentence must be included as part of the
defendant’s criminal history score. See § 4A1.1. The inter-
locking definitions of relevant conduct and prior sentence
ensure “that a defendant’s criminal history is not overstated”
by counting the same conduct in the offense level calculation
and again in the criminal history calculation. United States v.
Cruz-Gramajo, 570 F.3d 1162, 1170 (9th Cir. 2009).
6
There are exceptions to this principle. For example, prior convictions
may be considered in determining the special offense characteristics under
§ 2L1.2, and still be counted as part of criminal history. See § 2L1.2 cmt.
n.6.
UNITED STATES v. RIVERA-GOMEZ 2061
III
We now apply the framework described above to this case.
We have jurisdiction pursuant to 18 U.S.C. § 3742. We
review the district court’s interpretation of the Guidelines de
novo, its findings of fact for clear error, and its application of
the Guidelines to the facts of this case for abuse of discretion.
Cruz-Gramajo, 570 F.3d at 1167. In considering a district
court’s application of the Guidelines to undisputed facts, we
review the district court deferentially, acknowledging that
“the district court is in a better position than the appellate
court to decide whether a particular set of individual circum-
stances” meets the Guidelines’ criteria, Buford v. United
States, 532 U.S. 59, 64 (2001), and understanding “the limited
value of uniform court of appeals precedent” regarding such
“fact-bound” legal issues, id. at 66.
In sentencing Rivera-Gomez, the district court assigned
eight points for Rivera-Gomez’s base offense level. See
§ 2L1.2(a). After considering “special offense characteris-
tics,” the district court increased the offense level by sixteen
points because Rivera-Gomez reentered the country after
being convicted of attempted murder, which is a crime of vio-
lence. See § 2L1.2(b)(1)(A)(ii). The district court did not
make any upward adjustments for victim, role, or obstruction
of justice, see § 1B1.1(c), but reduced Rivera-Gomez’s
offense level two points by applying a downward adjustment
for acceptance of responsibility. See § 3E1.1(a).
With respect to the criminal history calculation, the district
court determined that Rivera-Gomez had a total of twelve
criminal history points, including three points for his state
resisting-arrest conviction.
As noted above, Rivera-Gomez argued that the state
resisting-arrest conviction could not be included in the crimi-
nal history calculation, because he resisted arrest with the
intent of avoiding detection for his crime of illegal reentry.
2062 UNITED STATES v. RIVERA-GOMEZ
The district court rejected this argument, holding that the
resisting-arrest conduct must be considered separately from
the illegal reentry offense because resisting arrest “creates an
exceedingly dangerous situation that really compounds and
aggravates the nature of the crimes that were initially under
investigation.” Relying on a Fifth Circuit case, United States
v. Vargas-Garcia, 434 F.3d 345 (5th Cir. 2005), the district
court concluded that the state resisting-arrest offense was
properly included as part of Rivera-Gomez’s criminal history,
and that Rivera-Gomez’s intent in resisting arrest was irrele-
vant.
[3] We disagree with the district court’s reasoning. Under
the plain language of the Guidelines, United States v. Valenz-
uela, 495 F.3d 1127, 1133 (9th Cir. 2009), conduct that
occurred “in the course of attempting to avoid detection or
responsibility” for the crime of conviction constitutes relevant
conduct, and it should therefore be included in the specific
offense characteristics. § 1B1.3(a)(1)(A). Moreover, if the
conduct underlying the state conviction constitutes relevant
conduct, then it cannot be considered a “prior sentence” for
purposes of calculating criminal history points. § 4A1.2 cmt.
n.1. Although Rivera-Gomez’s resisting-arrest conduct
occurred long after the reentry offense took place, nothing in
the Guidelines establishes that conduct ceases to be relevant
after a specified period of time. Therefore, if Rivera-Gomez
resisted arrest in order to “avoid detection or responsibility”
for the illegal reentry offense (as he now claims), and there is
no other basis for holding that the resisting-arrest offense is
not relevant conduct to the crime of conviction, the district
court erred in accounting for the conduct as a prior sentence,
rather than as part of the offense level.
In reaching this conclusion, we join the only other circuit
that has directly addressed this issue. See United States v.
White, 335 F.3d 1314, 1319-20 (11th Cir. 2003). In White, an
alien arrested on drug charges gave a false name and identifi-
cation to the state police. Id. at 1315-16. After the state dis-
UNITED STATES v. RIVERA-GOMEZ 2063
covered his true identity, the alien was convicted and
sentenced for giving false information to a police officer. Id.
at 1316. Immediately after the alien received his state sen-
tence, he was charged and subsequently pleaded guilty to a
§ 1326 offense for being found in the United States after his
1987 and 1991 deportations. Id.
In calculating the criminal history for the alien’s sentence,
the district court included two criminal history points for the
state false-information conviction, on the ground that the con-
duct underlying that conviction was not part of the § 1326
offense. Id. The Eleventh Circuit determined that the district
court had erred, noting that “in many circumstances,” an
alien’s false statement to the police “could constitute an
action taken to avoid detection” for the offense of being found
in the United States in violation of § 1326(a), the same
offense for which Rivera-Gomez was convicted. Id. at 1320.7
Because the record established that the alien gave a false
name to avoid detection or responsibility for his reentry
offense, the court vacated the alien’s sentence and remanded
for resentencing. Id. at 1320-21.
Neither our opinion in Cruz-Gramajo, 570 F.3d 1162,
relied on by the government, nor the Fifth Circuit’s reasoning
in Vargas-Garcia, 434 F.3d 345, the case on which the dis-
trict court relied, are contrary to our conclusion that a
resisting-arrest offense can be relevant conduct for a § 1326
reentry offense. Both of these cases addressed a different
issue: whether all crimes committed by an alien from the time
of the unlawful reentry to the time of arrest for committing a
§ 1326 reentry offense constitute relevant conduct, and there-
7
Both Rivera-Gomez and the alien in White were charged with “being
found” in the United States after a deportation order, in violation of
§ 1326(a). See 335 F.3d at 1316 n.1 (quoting § 1326(a)). Although White
observed that the government’s argument that the alien’s offenses were
unrelated and arose from two different courses of action “would be con-
vincing if the government had . . . indicted White of entering the U.S.,”
id. at 1320, that issue is not before us here.
2064 UNITED STATES v. RIVERA-GOMEZ
fore must be excluded from the criminal history calculation.8
As explained in Cruz-Gramajo, this theory was based on the
following syllogism: (1) a violation of § 1326 “is considered
a continuing offense that extends from the moment of illegal
reentry until discovery by immigration officials,” 570 F.3d at
1168 (citing United States v. Reyes-Pacheco, 248 F.3d 942,
946 (9th Cir. 2001)); (2) the explanation of relevant conduct
in § 1B1.3 includes any conduct “that occurred during the
commission of the offense of conviction,” id.(emphasis omit-
ted); (3) therefore, the defendants’ “intervening state offenses
occurred ‘during’ their § 1326 offenses as a temporal matter,
and this temporal relationship is sufficient to deem the state
offenses ‘relevant conduct,’ thereby precluding the district
court from considering the convictions as part of their crimi-
nal history calculation.” Id. at 1168-69 (footnote omitted). We
rejected this argument based in part on our conclusion that the
Guidelines did not contemplate that the defendants’ state con-
victions would be accounted for in the Guidelines’ calculation
of the offense level under § 2L1.2. See id. at 1172-74.
Accordingly, the district court’s decision to include the state
convictions in the criminal history calculations was consistent
with the Guidelines’ policy goals of avoiding either overstat-
ing or understating a defendant’s criminal history. Id.
The Fifth Circuit reached a similar conclusion in Vargas-
Garcia, 434 F.3d 345. In that case, an alien was arrested and
convicted for a state resisting-arrest offense after he had ille-
gally reentered the country but before he had been arrested for
that § 1326 offense. Id. at 346. The alien argued at the sen-
8
Although one of the defendants in Cruz-Gramajo was convicted under
state law for evading a police officer during a traffic stop, 570 F.3d at
1166, an offense that is similar to Rivera-Gomez’s state resisting-arrest
offense, Cruz-Gramajo’s holding was focused solely on the question
whether a “district court [is precluded] from considering [state] convic-
tions as part of [a defendant’s] criminal history calculation” when the state
offenses were committed during a § 1326 offense,” id. at 1168-69. The
court in Cruz-Gramajo did not consider Rivera-Gomez’s argument that
the state offense was committed to avoid detection for the § 1326 offense.
UNITED STATES v. RIVERA-GOMEZ 2065
tencing stage for the § 1326 reentry conviction that his
resisting-arrest offense was relevant conduct for the illegal
reentry offense, “since his resisting arrest occurred during the
commission of or in the course of attempting to avoid detec-
tion or responsibility for his illegal reentry.” Id. at 347. The
court did not address the question whether resisting arrest “to
avoid detection or responsibility” for the crime of illegal reen-
try constitutes relevant conduct under § 1B1.3(a)(1)(A), but
rather focused solely on the alien’s continuing offense argu-
ment. In rejecting this argument, the court reasoned that
although illegal reentry is a continuing offense, “the con-
cealed and extended nature of this offense cannot shield mul-
tiple and ‘severable instances of unlawful conduct’ from their
appropriate consequences at sentencing.” Id. at 349 (quoting
United States v. Banashefski, 928 F.2d 349, 352 (10th Cir.
1991)). Further, the court concluded that the resisting-arrest
offense was separable from the illegal reentry offense because
the prior offense was “based on ‘different criminal conduct
that harmed different societal interests.’ ” Id. at 350 (quoting
United States v. Beddow, 957 F.2d 1330, 1339 (6th Cir.
1992)). Accordingly, the Fifth Circuit held that the district
court did not err in counting the alien’s resisting-arrest
offense as part of his criminal history. Id. at 352.
In this case, Rivera-Gomez does not raise the continuing
offense theory, and so Cruz-Gramajo and Vargas-Gomez are
not directly applicable. Nor is the concern expressed in Cruz-
Gramajo regarding the risk of undercounting a defendant’s
criminal conduct applicable here: treating the state-resisting
arrest conviction as relevant conduct rather than criminal his-
tory will not necessarily lead to an understatement in the
Guidelines’ calculation, because the conduct can be accounted
for in the offense level. For example, if the district court
determines that the conduct underlying Rivera-Gomez’s
resisting-arrest conviction was intended to avoid detection for
the reentry offense, the district court would have to recalcu-
late the offense level determination and, as noted above, could
consider imposing an upward adjustment under § 3A1.2(a)
2066 UNITED STATES v. RIVERA-GOMEZ
(victim was a government officer), § 3A1.2(c)(1) (defendant
assaulted a law enforcement officer “in a manner creating a
substantial risk of serious bodily injury”), or § 3C1.2 (defen-
dant “recklessly created a substantial risk of death or serious
bodily injury to another person in the course of fleeing from
a law enforcement officer”).
IV
[4] Because the district court erred in determining that
Rivera-Gomez’s state resisting-arrest conviction could not be
“relevant conduct” under § 1B1.3(a)(1)(A) as a matter of law,
even if Rivera-Gomez intended to “avoid detection or respon-
sibility” for his reentry offense, it did not make a factual find-
ing regarding Rivera-Gomez’s intent in resisting arrest. Nor is
his intent clear from the record. Consequently, we vacate
Rivera-Gomez’s sentence and remand to the district court for
proceedings consistent with this opinion.9
VACATED and REMANDED.
GOODWIN, Circuit Judge, concurring:
I concur in the result and concur in the opinion. I write only
to point out the folly of this appeal and the judicial ineffi-
9
Though the concurrence observes that the district court’s error may
have been harmless, the district court has not made findings regarding
Rivera-Gomez’s intent or calculated potential upward adjustments relating
to victim, role, and obstruction of justice. See United States v. Lococo, 514
F.3d 860, 865-66 (9th Cir. 2008). Moreover, there is nothing in the record
to suggest that the district court would reach an equivalent or more severe
sentence on remand. See United States v. Ankeny, 502 F.3d 829, 841 (9th
Cir. 2007). Because we cannot say with any degree of confidence that the
district court’s error was harmless, we remand for resentencing. Having
remanded on this basis, we need not reach Rivera-Gomez’s arguments
regarding other alleged sentencing errors.
UNITED STATES v. RIVERA-GOMEZ 2067
ciency now inherent in the review of some sentencing
appeals.
As an initial point, Rivera-Gomez’s original sentence is
supported by the Guidelines, even if his conviction for resist-
ing arrest is completely removed from the calculation. Drop-
ping the three criminal history points originally added for that
conviction, Rivera-Gomez’s total criminal history points
would be nine, which supports a criminal history category of
IV. See U.S.S.G., Ch. 5, Part A (Sentencing Table). In combi-
nation with the original offense level of twenty-two—which
reflected no upward adjustments for his conduct in resisting
arrest—these calculations support a custodial sentence
between sixty-three and seventy-eight months under the
Guidelines. Id. Accordingly, Rivera-Gomez’s original sen-
tence of seventy-seven months was within the Guidelines,
even with no adjustments made for his resisting-arrest convic-
tion.
It is possible the district court could sentence Rivera-
Gomez towards the low-end of this new Guidelines range—as
it did under its initial higher calculation—resulting in a new
sentence below seventy-seven months. It would seem more
likely, however, that on remand defendant will face a higher
Guidelines range, which could potentially result in a longer
sentence than the one first imposed. First, it seems fairly obvi-
ous that there will be at least a three-level upward adjustment
of the offense under § 3A1.2(a), as the victim of the resisting-
arrest conduct was a government officer. This adjusted
offense level of twenty-five would result in a Guidelines
range of 84 to 105 months. Two additional upward adjust-
ments are also possible. See §§ 3A1.2(c)(1) and 3C1.2. If all
three of these adjustments are made, Rivera-Gomez’s offense
level could reach thirty-three, resulting in a Guidelines range
of 188 to 235 months. Accordingly, the result of this “suc-
cessful appeal” could well be that Rivera-Gomez’s sentence
increases, potentially as much as tripling.
2068 UNITED STATES v. RIVERA-GOMEZ
Despite knowing all this, we are unable under current Ninth
Circuit precedent to affirm the sentence originally given by
the district court and to dispense with this case. In U.S. v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc), this Court
held remand was necessary for significant procedural error,
which includes any incorrect calculation of the sentencing
range.
The Supreme Court has instructed, however, that remand
for resentencing must pass a harmless error test. Williams v.
U.S., 593 U.S. 193, 202 (1992). “[R]emand is appropriate
unless the reviewing court concludes, on the record as a
whole, that the error was harmless, i.e., that the error did not
affect the district court’s selection of the sentence imposed.”
Id. Williams remains good law. See, e.g., U.S. v. Smith, 561
F.3d 934, 942 (9th Cir. 2009). Mandatory remand for even a
harmless mistake in calculating the Guidelines makes even
less sense now that the Guidelines are purely advisory. See
United States v. Booker, 543 U.S. 220, 244-45, 259-60
(2005).
As the government is not seeking a higher sentence, this
court could easily conclude that the error in determining the
sentencing range here was harmless. It would be sadly ironic
for Rivera-Gomez to win his appeal and then be given a lon-
ger sentence, possibly much longer. For the sake of judicial
efficiency and good common sense, it seems to me that the
procedural error trigger of Carty needs to be refashioned to
admit the harmless error standard of Williams.