FILED
NOT FOR PUBLICATION MAY 20 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30175
Plaintiff - Appellee, D.C. No. 1:12-cr-00061-SEH
v.
MEMORANDUM*
FABIO NOEL-RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted May 13, 2014**
Before: CLIFTON, BEA, and WATFORD, Circuit Judges.
Fabio Noel-Rodriguez appeals from the district court’s judgment and
challenges the 148-month sentence imposed following his guilty-plea conviction
for possession with intent to distribute methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
remand for resentencing.
Noel-Rodriguez contends that the district court incorrectly calculated the
advisory Guidelines range and imposed an unreasonable sentence. The
government contends that this appeal should be dismissed based on a sentencing
appeal waiver. We review de novo whether Noel-Rodriguez has waived his right
to appeal. See United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009).
Because the district court made no reference to the sentencing appeal waiver at the
plea hearing, we cannot enforce the waiver. See United States v. Arellano-
Gallegos, 387 F.3d 794, 797 (9th Cir. 2004).
Because Noel-Rodriguez did not raise any objection to the Guidelines
calculation before the district court, we review for plain error. See United States v.
Bonilla-Guizar, 729 F.3d 1179, 1187 (9th Cir. 2013). Although the district court
determined that Noel-Rodriguez was a minor participant in the offense and
properly applied a three-level reduction to the base offense level under U.S.S.G.
§ 2D1.1(a)(5), the court failed to apply the two-level role reduction under U.S.S.G.
§ 3B1.2(b). Incorrect calculation of a defendant’s Guidelines range is a significant
procedural error, and “when a sentencing judge incorrectly calculates the
Guidelines range, potentially resulting in the imposition of a greater sentence, the
error affects the defendant’s substantial rights and ‘the fairness of the judicial
2 13-30175
proceedings.’” Bonilla-Guizar, 729 F.3d at 1188 (quoting United States v.
Castillo-Marin, 684 F.3d 914, 927 (9th Cir. 2012)). Accordingly, we vacate Noel-
Rodriguez’s sentence and remand for resentencing. See id. at 1189.
In light of this disposition, we decline to reach Noel-Rodriguez’s remaining
contentions.
VACATED and REMANDED for resentencing.
3 13-30175