FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50092
Plaintiff-Appellee,
D.C. No.
v.
2:07-cr-01326-DSF-
MANUEL DE JESUS CALDERON 1
ESPINOSA, aka Jesus Espinosa,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted December 12, 2008*
Pasadena, California
Filed June 24, 2009
Before: Harry Pregerson and Dorothy W. Nelson, Circuit
Judges, and James K. Singleton,** Senior District Judge.
Opinion by Judge Pregerson
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
7695
UNITED STATES v. CALDERON ESPINOSA 7697
COUNSEL
Jonathan D. Libby, Deputy Federal Public Defender, Los
Angeles, California, for the appellant.
Brock H. Lunsford, Special Assistant United States Attorney,
Domestic Security and Immigration Crimes Section, Los
Angeles, California, for the appellee.
OPINION
PREGERSON, Circuit Judge:
Manuel De Jesus Calderon-Espinosa (“Calderon”) appeals
the district court’s imposition of a twenty-four month prison
sentence after Calderon pleaded guilty to being an illegal
alien found in the United States following deportation in vio-
lation of 8 U.S.C. § 1326. Calderon contends that the district
court erroneously increased his criminal history score because
of his 2004 conviction for “Loitering for Drug Activities” in
violation of California Health and Safety Code section 11532,
and his 2007 conviction for being an unlicensed driver in vio-
lation of California Vehicle Code section 12500(a). We find
that the district court erred in assessing a criminal history
point based on Calderon’s 2004 loitering conviction. We need
not reach Calderon’s second argument regarding the criminal
history point assessed for his 2007 vehicle code conviction,
because the correction of any potential error would not further
reduce Calderon’s sentence. We vacate Calderon’s sentence
and remand to the district court for resentencing.
7698 UNITED STATES v. CALDERON ESPINOSA
I. Background
Calderon, a Mexican citizen, was lawfully removed from
the United States on May 27, 2004. On July 12, 2004, Calde-
ron reentered the United States without inspection. On Sep-
tember 13, 2007, over three years later, immigration
authorities found Calderon in Los Angeles County.
On December 10, 2007, pursuant to a binding plea agree-
ment, Calderon pleaded guilty to being an illegal alien found
in the United States following deportation in violation of 8
U.S.C. § 1326. In his plea agreement, Calderon stipulated that
he would “serve a sentence of imprisonment of duration equal
to the low end of the applicable guideline range determined
by a total offense level of 13 and [Calderon’s] calculated
criminal history category . . . . ”
The probation office prepared a Modified Presentence
Report (“PSR”) that calculated seven criminal history points
for Calderon based on three prior convictions, placing him in
Criminal History Category IV. Among the seven total points
assigned was one point for Calderon’s 2004 conviction for
“Loitering for Drug Activities” in violation of California
Health and Safety Code section 11532. The probation office
also assigned an additional history point to Calderon for being
an unlicensed driver in violation of California Vehicle Code
section 12500(a) on September 13, 2007, the date Calderon
was “found in” the United States as charged under 8 U.S.C.
§ 1326.
On March 3, 2008, based upon the binding plea agreement
and Calderon’s criminal history calculated in the PSR, the dis-
trict court sentenced Calderon to twenty-four months impris-
onment, to be followed by three years of supervised release.
During the sentencing hearing, Calderon objected to the
court’s Sentencing Guidelines assessment of one criminal his-
tory point for his prior conviction for “Loitering for Drug
Activities” in violation of California Health and Safety Code
UNITED STATES v. CALDERON ESPINOSA 7699
section 11532. Calderon also objected to the court’s assess-
ment of one criminal history point for his post-reentry convic-
tion for driving without a license in violation of California
Vehicle Code section 12500(a). Calderon did not contest the
five additional criminal history points assigned to him. The
district court rejected Calderon’s objections to the criminal
history calculation. Calderon appealed to this court.
II. Standard of Review
We review a district court’s interpretation and application
of the Sentencing Guidelines de novo. See United States v.
Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005). Because Cal-
deron objected to the district court’s calculation of his sen-
tence, he preserved the issue on appeal. See United States v.
Grissom, 525 F.3d 691, 694-95 (9th Cir. 2008).
III. Discussion
A. The District Court Erred in Assessing an Additional
Criminal History Point for “Loitering for Drug Activi-
ties”
Calderon argues that the district court erred in assessing an
additional criminal history point for his conviction under Cali-
fornia Health and Safety Code section 115321 for “Loitering
for Drug Activities,” because the court misinterpreted the
plain language of U.S.S.G. § 4A1.2(c)(2). We agree.
[1] In interpreting the Sentencing Guidelines, “[t]he plain
meaning of unambiguous language in a guideline provision
controls.” United States v. Valenzuela, 495 F.3d 1127, 1133
1
California Health and Safety Code section 11532, “Loitering for Drug
Activities,” states: “It is unlawful for any person to loiter in any public
place in a manner and under circumstances manifesting the purpose and
with the intent to commit an offense specified in Chapter 6 (commencing
with section 11350) and Chapter 6.5 (commencing with section 11400).”
These sections pertain to drug offenses.
7700 UNITED STATES v. CALDERON ESPINOSA
(9th Cir. 2007); see also Am. Tobacco Co. v. Patterson, 456
U.S. 63, 68 (1982) (“[A]bsent a clearly expressed legislative
intention to the contrary, [the plain language of a statute] must
ordinarily be regarded as conclusive.”). Section 4A1.2(c)(2)
of the Sentencing Guidelines states that:
Sentences for the following prior offenses and
offenses similar to them, by whatever name they are
known, are never counted [in a defendant’s criminal
history score]:
Fish and game violations
Hitchhiking
Juvenile status offenses and truancy
Local ordinance violations (except those violations
that are also violations under state criminal law)
Loitering
Minor traffic infractions (e.g., speeding)
Public intoxication
Vagrancy.
U.S.S.G. § 4A1.2(c)(2) (emphasis added). Here, the plain lan-
guage of the Guidelines is clear: “Loitering,” “by whatever
name [it is] known” is “never counted” in a defendant’s crimi-
nal history score. Id. Thus, the district court erred in assessing
a criminal history point to Calderon for his prior loitering
offense.
[2] The government argues that certain types of “loitering”
may be exempted from § 4A1.2(c)(2). But the plain language
of the statute tells us otherwise by its use of the clause, “by
UNITED STATES v. CALDERON ESPINOSA 7701
whatever name they are known.” Id. These words explicitly
tell us that all forms of loitering “by whatever name they are
known” are excluded when assessing a defendant’s criminal
history score. Id. Furthermore, “there is no explanatory note
to [§ 4A1.2(c)(2) in] the Sentencing Guidelines that indicates
that certain types of loitering are not to be exempted from the
Criminal History Category.” United States v. Lock, 466 F.3d
594, 600 (7th Cir. 2006) (quoting United States v. Paul, No.
97-1270, 1998 WL 398808, *1 (2d Cir. June 8, 1998)).
At Calderon’s sentencing hearing, the district court mis-
takenly relied on United States v. Martinez, 956 F.2d 891 (9th
Cir. 1992) when the court concluded that “Guidelines Section
4A1.2(c)(2) does not preclude this criminal conviction [for
‘Loitering for Drug Activities’] from being counted” in calcu-
lating Calderon’s criminal history score. In Martinez, we
found that the offense of “public intoxication” is never
counted in a defendant’s criminal history score under
§ 4A1.2(c)(2), because the offense was listed in the statute. Id.
at 893. But we held that the offense of being “under the influ-
ence of a controlled substance,” a violation of California
Health and Safety Code section 11550, “[is] not ‘similar’ to
public intoxication” under § 4A1.2(c)(2), and therefore is
counted in calculating a defendant’s criminal history score. Id.
The district court incorrectly compared Calderon’s convic-
tion for “Loitering for Drug Activities” to Martinez’s convic-
tion for being “under the influence of a controlled substance.”
Unlike the offense of being “under the influence of a con-
trolled substance” in Martinez, the offense of “loitering” is
specifically listed in § 4A1.2(c)(2), and thus is “never count-
ed” in a defendant’s criminal history score. Accordingly, the
district court mistakenly relied on Martinez.
[3] To date, only the Seventh Circuit has considered in a
published opinion the specific issue of whether to assess a
criminal history point for the conviction of “Loitering-Illegal
Drug Activity” under the Sentencing Guidelines. In Lock, 466
7702 UNITED STATES v. CALDERON ESPINOSA
F.3d at 602, the Seventh Circuit held that “the district court
erred in its application of the Sentencing Guidelines, and that
[the defendant’s] convictions for Loitering-Illegal Drug
Activity should be excluded from his criminal history score”
under U.S.S.G. § 4A1.2(c)(2). Here, we consider a similar
California statute and conclude, as did the Seventh Circuit,
that the district court should never have counted Calderon’s
loitering conviction in calculating his criminal history score
under the Sentencing Guidelines.
B. The District Court’s Error Was Prejudicial
[4] A material error in the district court’s calculation of the
appropriate Guidelines range requires a remand for resentenc-
ing, unless the error was harmless. See United States v. Can-
trell, 433 F.3d 1269, 1279-80 (9th Cir. 2006). Under the terms
of Calderon’s binding plea agreement, Calderon was to
receive the low end of the applicable guidelines range based
on a correctly calculated criminal history category. Had Cal-
deron not been assessed a criminal history point for the loiter-
ing offense, he would have been assigned only six criminal
history points, rather than seven, and his sentence would have
been calculated under criminal history Category III, rather
than Category IV. Thus, Calderon would have received a sen-
tence under his binding plea agreement of eighteen months
imprisonment, rather than the twenty-four month sentence he
received. Accordingly, we conclude that the district court’s
error in assessing an additional criminal history point for Cal-
deron’s loitering offense was prejudicial, not harmless, and
we remand for resentencing.
C. We Need Not Reach Calderon’s Second Argument
Calderon also argues that the district court should not have
assessed a criminal history point for his post-reentry convic-
tion in September 2007 for driving without a license in viola-
tion of California Vehicle Code section 12500(a). Because we
find that a criminal history point should not have been
UNITED STATES v. CALDERON ESPINOSA 7703
assessed for Calderon’s 2004 loitering offense, however, we
need not address Calderon’s second argument. Any error the
district court may have made by including a criminal history
point for Calderon’s 2007 conviction would not have affected
his sentence. As previously discussed, removing the single
criminal history point for Calderon’s 2004 loitering convic-
tion is enough to reduce Calderon’s criminal history category
from Category IV to Category III. Reducing Calderon’s crim-
inal history score by a second point would not further reduce
Calderon’s criminal history category. Thus, Calderon’s sen-
tence would not decrease any further from the eighteen
months incarceration specified by criminal history Category
III. Accordingly, we do not consider Calderon’s second argu-
ment.
IV. Conclusion
[5] We vacate Calderon’s sentence and remand to the dis-
trict court with instructions to resentence Calderon.
VACATED AND REMANDED FOR RESENTENCING.