FILED
NOT FOR PUBLICATION
FEB 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50275
Plaintiff - Appellee, D.C. No. 2:03-cr-01200-CBM-1
v.
MEMORANDUM*
DAVID LAZO-ROMERO,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted February 5, 2016
Pasadena, California
Before: REINHARDT, PAEZ, and M. SMITH, Circuit Judges.
David Lazo-Romero (Lazo) violated the conditions of his supervised release
and was sentenced to 18 months in prison. This sentence was based in part on a
criminal-history category of V. At Lazo’s original sentencing, however, the district
court determined that category IV better represented his criminal history. Lazo argues
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
that on revocation, he was entitled to be sentenced based on the same determination.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we remand
for resentencing.
Lazo was convicted in 2005 of illegal reentry into the United States. The United
States Probation Office prepared a Pre-Sentencing Report (PSR), in which it
determined that Lazo’s criminal history placed him in category V on the Sentencing
Table. At sentencing, Lazo argued that his criminal-history category should be IV,
for two reasons: first, because he was not actually on parole or probation when he
committed the offense that led to the original sentencing proceeding, and second,
because in any case a criminal-history category of V overstated his true criminal
history. The district court declined to decide the first argument. Instead, it concluded
that even if the government were correct that Lazo had been under a criminal
sentence, Lazo had the better of the second argument. It therefore determined, under
United States Sentencing Guidelines (“USSG” or “Guidelines”) § 4A1.3, that Lazo
deserved a criminal-history category of IV.
Lazo violated the terms of his supervised release and was returned to district
court for revocation and sentencing. The district court assumed that the criminal-
history category of V contained in the 2005 PSR was the criminal-history category
2
“applicable at the time [Lazo] originally was sentenced to a term of supervision,”
§ 7B1.4 n.*, and sentenced Lazo to 18 months in prison.
Lazo failed to object at revocation sentencing to the use of criminal-history
category V. Ordinarily, therefore, our review would be for plain error. United States
v. Joseph, 716 F.3d 1273, 1276 (9th Cir. 2013). However, when an “‘appeal presents
a pure question of law and there is no prejudice to the opposing party’ that resulted
from a defendant’s failure to object,” we may apply de novo review. Id. n.4 (quoting
United States v. Gonzalez-Aparicio, 663 F.3d 419, 426 (9th Cir. 2011)). Here, the sole
question is the interpretation of the Guidelines, and “the government is not prejudiced
by our requirement that the district court correctly calculate the Guidelines sentencing
range before it imposes a sentence.” United States v. Evans-Martinez, 611 F.3d 635,
642 (9th Cir. 2010).
We hold that when the original sentencing court finds under USSG § 4A1.3 that
the criminal-history category proposed by the PSR is overstated without making a
determination under §§ 4A1.1-4A1.2, the § 4A1.3 category is “the category applicable
at the time the defendant originally was sentenced to a term of supervision.” USSG
§ 7B1.4 n.*. This is so because the § 4A1.3 category is the only criminal-history
category that was “determined at the time the defendant originally was sentenced.” Id.
cmt. n.1. Our holding today does not determine which criminal-history category
3
should be used on revocation sentencing when the original sentencing court made an
initial determination under §§ 4A1.1-4A1.2 but then departed under § 4A1.3. That
question remains open in this Circuit. Cf. United States v. McKinney, 520 F.3d 425,
430 (5th Cir. 2008); United States v. Hendershot, 469 F.3d 703, 705 (8th Cir. 2006).
Here, the original sentencing court expressly refused to determine a criminal-
history category under §§ 4A1.1-4A1.2. The judge stated: “I’m not able to determine
whether summary probation was given for some certain period of time or it ended
once he finished serving the sentence. I just don’t know. Can’t determine from that.”1
Instead, the court held that regardless of the outcome under §§ 4A1.1-4A1.2,
“[category] 5 overstates the criminal history and it should be a 4.” Thus, only one
criminal-history category was ever “determined at the time the defendant originally
was sentenced”: criminal-history category IV. See USSG § 7B1.4 cmt. n.1. That is
therefore the criminal-history category that should have been used at revocation
sentencing. Id. Because Lazo would in all likelihood have been released this month
absent the error in sentencing, the mandate shall issue forthwith and the case is
remanded to the district court for immediate resentencing.
VACATED and REMANDED. MANDATE TO BE ISSUED FORTHWITH.
1
Although a district court typically must rule on any disputed portion of a
presentencing report, it need not if it concludes that “the matter will not affect
sentencing.” Fed. R. Crim. P. 32(i)(3)(B).
4