NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 23 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10186
Plaintiff - Appellee, D.C. No. 2:10-cr-00162-JAM
v.
MEMORANDUM*
ALEJANDRO CISNEROS ROMERO,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Alejandro Cisneros Romero appeals from the district court’s judgment and
challenges the 204-month sentence imposed following his guilty-plea conviction
for conspiracy to distribute and possess with intent to distribute methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1) and 846. We have jurisdiction under 28
*
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).
U.S.C. § 1291, and we vacate and remand for resentencing.
The parties agree that the district court procedurally erred at sentencing by
adopting a Guidelines range of 292-365 months, rather than the correctly
calculated range of 262-327 months. The parties disagree as to whether this error
affected Cisneros Romero’s substantial rights. See United States v. Dallman, 533
F.3d 755, 761 (9th Cir. 2008) (to warrant relief under plain error standard, error
must have affected substantial rights). The record reflects that the district court
considered imposing the 180-month sentence recommended by probation but
instead imposed the stipulated sentence of 204 months, in part because the
negotiated sentence reflected “a significant variance” from the low end of what the
court believed to be the Guidelines range. On this record, there is a reasonable
probability that the district court would have imposed a lower sentence had it
properly calculated the low end of the Guidelines range. See id. at 762; see also
United States v. Hammons, 558 F.3d 1100, 1105-06 (9th Cir. 2009) (district court’s
reliance on an improper Guidelines range constitutes plain error). Accordingly, we
vacate Cisneros Romero’s sentence and remand for resentencing.
VACATED and REMANDED for resentencing.
2 14-10186