UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4781
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTIN CARBAJAL-TAFOLLA, a/k/a Marcellino Carbajal-Vargas,
a/k/a Jabier Mendoza-Luna,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00077-TDS-1)
Submitted: May 27, 2014 Decided: June 12, 2014
Before KEENAN and WYNN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Mireille P. Clough,
Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Randall S. Galyon, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Martin Carbajal-
Tafolla pled guilty to possession of firearms by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012)
(Count One), unauthorized illegal reentry by an aggravated
felon, in violation of 8 U.S.C. § 1326(a), (b)(2) (2012) (Count
Three), and possession of counterfeit alien registration receipt
cards, in violation of 18 U.S.C. § 1546(a) (2012) (Count Four).
The district court sentenced Carbajal-Tafolla to forty-five
months in prison. Carbajal-Tafolla appeals, contending that the
district court committed procedural error in determining the
base offense level for his § 922(g) offense 1 and that his
sentence is substantively unreasonable. For the reasons that
follow, we vacate Carbajal-Tafolla’s sentence and remand for
resentencing.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). First, we examine the sentence for significant
procedural error, such as improperly calculating the Sentencing
1
For Guidelines calculation purposes, the district court
grouped Counts Three and Four (“Group One”) separately from the
§ 922(g) count. U.S. Sentencing Guidelines Manual §§ 3D1.1,
3D1.2 (2012). The court then used the adjusted offense level
for the § 922(g) count in calculating Carbajal-Tafolla’s
Guidelines range because it was higher than the adjusted offense
level for Group One. USSG § 3D1.4.
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Guidelines range, treating the Guidelines range as mandatory,
failing to consider the 18 U.S.C. § 3553(a) (2012) factors, and
failing to adequately explain the selected sentence. Id. If
the sentence is free from such procedural error, we consider
substantive reasonableness. Id.
Carbajal-Tafolla argues that the district court
committed procedural error by improperly assigning a base
offense level of twenty to his § 922(g) offense based on his
1999 drug conspiracy conviction. The Sentencing Guidelines
generally apply a base offense level of fourteen to § 922(g)
offenses. See USSG § 2K2.1(a)(6)(A) (providing base offense
level of fourteen where defendant “was a prohibited person at
the time [he] committed the instant offense”). If “the
defendant committed any part of the instant offense subsequent
to sustaining one felony conviction of either a crime of
violence or a controlled substance offense,” his base offense
level is twenty. USSG § 2K2.1(a)(4)(A). However, the
commentary specifies that only felony convictions that receive
criminal history points under USSG § 4A1.1(a), (b), or (c)
should be counted for purposes of establishing a base offense
level under USSG § 2K2.1(a)(4)(A). USSG § 2K2.1 cmt. n.10.
Because Carbajal-Tafolla received a sentence of less than one
year and one month for his 1999 drug conspiracy conviction, it
is countable under USSG § 4A1.1(b) only if that sentence “was
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imposed within ten years of the defendant’s commencement of the
instant offense.” USSG § 4A1.2(e)(2).
Pursuant to § 4A1.1(b), Carbajal-Tafolla’s 1999 drug
conspiracy conviction received two criminal history points.
Carbajal-Tafolla conceded that his 1999 drug conspiracy
conviction qualified for two criminal history points because the
sentence for that offense was imposed within ten years of the
commencement of one of his current offenses, namely the illegal
reentry conviction in Count Three. However, he argues that
counting the 1999 conviction for purposes of criminal history
points because the sentence was imposed within ten years of the
commencement of one of his current offenses does not make it
countable for purposes of establishing a base offense level
under § 2K2.1(a)(4) for his § 922(g) conviction because his
firearm offense was not grouped with the offense that qualified
the 1999 conviction for criminal history points. We agree.
Although Carbajal-Tafolla’s 1999 conviction qualified
for criminal history points, it did so for reasons completely
unrelated to his § 922(g) offense, namely because his 1999
sentence was imposed within ten years of commencement of his
Count Three offense, illegal reentry by an aggravated felon.
Carbajal-Tafolla’s § 922(g) offense occurred on or about January
10, 2013, nearly fourteen years after the imposition of the drug
conspiracy sentence. Carbajal-Tafolla did not commit any part
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of his § 922(g) offense within ten years of sustaining a
qualifying felony conviction for purposes of imposing a base
offense level of twenty pursuant to USSG § 2K2.1(a)(4)(A).
Accordingly, we conclude that the district court committed
procedural error in establishing the base offense level for
Count One. 2
For these reasons, we vacate Carbajal-Tafolla’s
sentence and remand for resentencing. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
VACATED AND REMANDED
2
Because we conclude that Carbajal-Tafolla’s sentence is
procedurally unreasonable and vacate the sentence on that basis,
we decline to address Carbajal-Tafolla’s challenge to the
substantive reasonableness of the sentence. Gall, 552 U.S. at
51.
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