FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50614
Plaintiff-Appellee,
v. D.C. No.
3:09-cr-02650-W-1
IVAN ALEJANDRO GARCIA-GUERRERO,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted
December 9, 2010—Pasadena, California
Filed February 18, 2011
Before: Harry Pregerson and Richard R. Clifton,
Circuit Judges, and H. Russel Holland,*
Senior District Judge.
Opinion by Judge Holland
*The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
2709
UNITED STATES v. GARCIA-GUERRERO 2711
COUNSEL
Sherri Walker Hobson, Assistant U.S. Attorney, San Diego,
California, argued the cause for the plaintiff-appellee; Laura
A. Duffy, United States Attorney, and Bruce Castetter, Assis-
tant U.S. Attorney, Chief, Appellate Section, Criminal Divi-
sion, San Diego, California, were on the briefs.
Martin G. Molina, San Diego, California, for the appellant-
defendant.
2712 UNITED STATES v. GARCIA-GUERRERO
OPINION
HOLLAND, Senior District Judge:
Appellant Ivan Alejandro Garcia-Guerrero challenges his
46-month sentence for smuggling ten gallons of hypophos-
phorous acid into the United States in violation of 18 U.S.C.
§ 545. Garcia-Guerrero contends that the district court erred
in calculating his base offense level under U.S.S.G. § 2D1.11,
via the cross-reference provision of U.S.S.G. § 2T3.1. We
have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291, and we vacate Garcia-Guerrero’s sentence and
remand for resentencing.
I. Background
On June 12, 2009, Garcia-Guerrero drove a van which con-
tained two five-gallon water bottles across the border from
Mexico into the United States. Garcia-Guerrero had been paid
$500 to drive the vehicle across the border and had been
instructed to leave the containers in a gas station parking lot.
In a post-arrest interview, Garcia-Guerrero stated that he did
not know exactly what was in the containers although he
knew that it was some kind of chemical. He said he thought
that maybe it was battery acid. Garcia-Guerrero told the inter-
viewing officers that he knew that he was not carrying drugs
although he knew that what he was carrying was illegal. The
water bottles in fact contained hypophosphorous acid, a list I
chemical which is a precursor ingredient used to make
methamphetamine.
Garcia-Guerrero was charged by information on July 9,
2009. The one-count information alleged that Garcia-
Guerrero had violated 18 U.S.C. § 545 when he entered the
United States without declaring the hypophosphorous acid to
U.S. Customs authorities. On August 31, 2009, Garcia-
Guerrero, without a plea agreement, pleaded guilty, admitting
UNITED STATES v. GARCIA-GUERRERO 2713
that he had failed to declare imported merchandise in viola-
tion of 18 U.S.C. § 545.
At sentencing, the parties disagreed over which provision
of U.S.S.G. § 2T3.1, which governs offenses involving tax
losses resulting from smuggling, applied to Garcia-Guerrero’s
conviction. Garcia-Guerrero argued that § 2T3.1(a)(3) applied
to his conviction because the tax loss from his failure to
declare the hypophosphorous acid was less than $100. Appli-
cation of § 2T3.1(a)(3) would have resulted in a base offense
level of four. The government argued that the § 2T3.1 cross
reference applied and thus Garcia-Guerrero’s base offense
level should be calculated pursuant to U.S.S.G. § 2D1.11,
which governs offenses involving the distribution, importa-
tion, exportation, or possession of listed precursor chemicals.
The district court agreed with the government and rejected
Garcia-Guerrero’s argument that in order for § 2D1.11 to
apply he had to know that the acid which he imported was
going to be used to manufacture a controlled substance.
Application of § 2D1.11 resulted in a base offense level of
thirty. After the applicable downward departures were calcu-
lated, Garcia-Guerrero’s adjusted offense level was twenty-
three, which resulted in a guideline range of 46 to 57 months.
After reviewing the 18 U.S.C. § 3553(a) factors, the district
court determined that the low end of that range would be a
sufficient sentence and sentenced Garcia-Guerrero to 46
months. Garcia-Guerrero appeals from this sentence.
II. Standard of Review
“We review the legality of a sentence de novo.” United
States v. Reyes-Pacheco, 248 F.3d 942, 945 (9th Cir. 2001).
“The district court’s interpretation of the Sentencing Guide-
lines is also reviewed de novo, while its application of the
Sentencing Guidelines to the facts of a particular case is
reviewed for an abuse of discretion[.]” Id. (internal citations
omitted).
2714 UNITED STATES v. GARCIA-GUERRERO
III. Analysis
[1] “The first and most important step [in calculating an
appropriate sentence] is determining the applicable offense
guideline section.” United States v. Crawford, 185 F.3d 1024,
1026 (9th Cir. 1999). “The Statutory Index in Appendix A
‘provides a listing to assist in this determination.’ ” Id. (quot-
ing U.S.S.G. § 1B1.1(a) (footnote omitted)). For a § 545
offense, Appendix A lists three possible guideline sections,
§§ 2B1.5, 2Q2.1 and 2T3.1. Section 2D1.11 is not among the
guidelines listed in Appendix A for a § 545 conviction. Of the
listed guidelines, only § 2T3.1 could have application here.
Section § 2B1.5 covers crimes involving “Cultural Heritage
Resources” and § 2Q2.1 covers crimes involving fish, wild-
life, and plants.
[2] The introductory comments to § 2T3.1 explain that this
guideline “deals with violations of 18 U.S.C. §§ . . . 541-545
. . . and is designed to address violations involving revenue
collection or trade regulation.” U.S. Sentencing Guidelines
Manual § 2T3.1 introductory cmt. (2009). The introductory
commentary further explains that § 2T3.1 is
intended to deal with some types of contraband, such
as certain uncertified diamonds, but is not intended
to deal with the importation of other types of contra-
band, such as drugs, or other items such as obscene
material, firearms or pelts of endangered species, the
importation of which is prohibited or restricted for
non-economic reasons. Other, more specific criminal
statutes apply to most of these offenses. Importation
of contraband or stolen goods not specifically cov-
ered by this Subpart would be a reason for referring
to another, more specific guideline, if applicable, or
for departing upward if there is not another more
specific applicable guideline.
Id. Section 2T3.1 contains a cross reference which provides
that “[i]f the offense involves a contraband item covered by
UNITED STATES v. GARCIA-GUERRERO 2715
another offense guideline, apply that offense guideline if the
resulting offense level is greater than that determined above.”
U.S.S.G. § 2T3.1(c)(1).
[3] The district court determined that the cross reference
directed the court to apply § 2D1.11 because that guideline
expressly addresses the importation of hypophosphorous acid.
However, Garcia-Guerrero pleaded guilty to the failure to
declare merchandise, specifically hypophosphorous acid, in
violation of 18 U.S.C. § 545. He did not plead guilty to the
importation of hypophosphorous acid in violation of 21
U.S.C. §§ 960(d)(1) or (3), which prohibit the knowing or
intentional importation of a listed chemical with the intent,
knowledge, or reason to believe that the chemical will be used
to manufacture a controlled substance. By pleading guilty to
the information, Garcia-Guerrero admitted that he imported
merchandise that he was required to declare, but he did not
admit that he imported a listed precursor chemical or that he
knew or had any reason to believe that the hypophosphorous
acid would be used to manufacture methamphetamine. In
other words, he did not admit all the elements required to con-
vict him of a § 960 importation offense. U.S.S.G. § 1B1.2
requires that the offense guideline section be determined
based on “the offense conduct charged in the . . . information
of which the defendant was convicted.” Because Garcia-
Guerrero was convicted of a § 545 offense, it was inappropri-
ate to calculate his base offense level as if he had been con-
victed of a § 960 importation offense, an offense that carries
a much more serious penalty under the Guidelines.
[4] Moreover, there is no indication that the Sentencing
Commission intended § 2D1.11 to apply to § 545 convictions.
As set out above, Appendix A does not list § 2D1.11 as an
applicable guideline for a § 545 conviction. In addition, § 545
is not amongst the statutory provisions to which § 2D1.11 has
application, whereas it is listed in the statutory provisions of
§ 2T3.1. The statutory provisions listed for § 2D1.11 are 21
U.S.C. §§ 841(c)(1), (2), (f)(1); 865; and 960(d)(1), (2), (3),
2716 UNITED STATES v. GARCIA-GUERRERO
(4). “[T]he statutory provisions portion of an offense Guide-
line commentary lists statutes of conviction[.]” United States
v. Romero, 293 F.3d 1120, 1124 (9th Cir. 2002).
“[C]ommentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the Con-
stitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline[.]” Stinson v.
United States, 508 U.S. 36, 38 (1993). Thus, the fact that
§ 545 is not included in the statutory provisions list for
§ 2D1.11 is significant. See United States v. Lawton, 193 F.3d
1087, 1091-92 (9th Cir. 1999) (applying the doctrine of
expressio unius est exclusio alterius to the interpretation of
the Guidelines).
Further evidence that the Sentencing Commission did not
intend § 2D1.11 to apply to § 545 convictions can be found
in § 2D1.11(b)(2). Subsection (b)(2) provides that defendants
who are convicted under 21 U.S.C. § 960(d)(3) are entitled to
a three-level reduction if they did not know that what they
were smuggling would be used to manufacture a controlled
substance. U.S.S.G. § 2D1.11(b)(2). Under the plain language
of § 2D1.11, a defendant charged under Title 21 would be eli-
gible for a three-level reduction if he did not know or have
reason to believe that the chemicals he was importing would
be used to manufacture a controlled substance, but a defen-
dant charged under Title 18 who lacked the same knowledge
would not be entitled to the same three-level reduction. Even
though they are now advisory, “a central goal” of the Guide-
lines is still “to eliminate sentencing disparity.” United States
v. Daas, 198 F.3d 1167, 1181 (9th Cir. 1999).
In the instant case, because Garcia-Guerrero was charged
under 18 U.S.C. § 545, he could not have qualified for the
three-level departure if he did not know of the intended use
of the hypophosphorous acid. However, if he had been
charged under 21 U.S.C. § 960(d), he would have qualified
for the three-level departure. The Sentencing Commission
UNITED STATES v. GARCIA-GUERRERO 2717
could not have intended to introduce this kind of disparity into
the Guidelines.
[5] We conclude that § 2D1.11 was not intended to apply
to § 545 offenses. Thus, Garcia-Guerrero’s guideline range
was not calculated correctly. “A material error in the district
court’s calculation of the appropriate Guidelines range
requires a remand for resentencing, unless the error was harm-
less.” United States v. Calderon Espinosa, 569 F.3d 1005,
1008 (9th Cir. 2009). The error here was not harmless because
had the district court not applied § 2D1.11, Garcia-Guerrero’s
base offense level would have been four, as opposed to thirty,
which was the base offense level assigned by the district
court.
IV. Conclusion
We hold that the district court erred in calculating Garcia-
Guerrero’s base offense level under § 2D1.11 pursuant to the
cross-reference provision of § 2T3.1 because it resulted in
Garcia-Guerrero being punished for an offense of which he
was not convicted. In so holding, we recognize that this is a
case in which the Guidelines do not fit the underlying facts all
that well. The district court appeared to realize this as
reflected in the miscellaneous two-level downward departure
it made to Garcia-Guerrero’s offense level. But, that adjust-
ment was not sufficient to correct the error of sentencing
Garcia-Guerrero under § 2D1.11 when he had not admitted to
all of the elements of a § 960 offense. We remand this case
for resentencing.
VACATED and REMANDED for resentencing.