FILED
NOT FOR PUBLICATION OCT 20 2014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. 13-10085
Plaintiff - Appellee, D.C. No. 4:12-cr-01661-JGZ
v.
MEMORANDUM*
NIDIA BERENICE FIGUEROA-
ZENDEJAS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
John A. Jarvey, District Judge, Presiding**
Submitted October 14, 2014***
Before: LEAVY, GOULD, and BERZON, Circuit Judges.
Nidia Berenice Figueroa-Zendejas appeals from the district court’s judgment
and challenges the 36-month sentence imposed following her guilty-plea
conviction for possession with intent to distribute methamphetamine, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii). We have jurisdiction under 28 U.S.C.
§ 1291, and we vacate the sentence and remand for resentencing.
Figueroa-Zendejas contends that the district court committed reversible error
by miscalculating the advisory Guidelines range. We review for plain error. See
United States v. Vargem, 747 F.3d 724, 727 (9th Cir. 2014). The government
concedes the Guidelines calculation error, but contends that Figueroa-Zendejas has
not shown that the district court’s error was prejudicial. We disagree. Because the
district court may have imposed a different sentence had it started its analysis with
the correct Guidelines range, we conclude that the court’s error affected Figueroa-
Zendejas’s substantial rights. See id. at 728-29. Accordingly, we vacate the
sentence and remand for resentencing.
In light of our disposition, we do not reach Figueroa-Zendejas’s other
allegations of sentencing error.
VACATED and REMANDED for resentencing.
2 13-10085
United States v. Figueroa-Zendejas, No. 13-10085
LEAVY, Circuit Judge, dissenting:
I respectfully dissent because the error is not one that “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc) (internal quotation and
citation omitted).
3 13-10085