NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 4 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10025
Plaintiff-Appellee, D.C. No.
1:17-cr-00304-LJO-SKO-1
v.
JOSE JESUS CARBAJAL, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted July 30, 2021**
San Francisco, California
Before: McKEOWN and NGUYEN, Circuit Judges, and LAMBERTH,*** District
Judge.
Jose Jesus Carbajal appeals his convictions and sentence for violating 18
U.S.C. §§ 924(c) and 1951. We have jurisdiction under 28 U.S.C. § 1291, and we
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Royce C. Lamberth, United States District Judge for
the District of Columbia, sitting by designation.
affirm the convictions, vacate the sentence, and remand for resentencing.
We review unpreserved arguments for plain error. Fed. R. Crim. P. 52(b).
On plain error review, a defendant “must show that (1) there is an error; (2) the
error is clear or obvious, rather than subject to reasonable dispute; (3) the error
affected his substantial rights, which in the ordinary case means it affected the
outcome of the district-court proceedings; and (4) the error seriously affected the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Walls, 784 F.3d 543, 546 (9th Cir. 2015).
1. The parties agree that the district court clearly erred when it sentenced
Carbajal on the § 924(c) conviction and also adopted a Guidelines range for the
§ 1951 conviction that included a five-level enhancement under the U.S.
Sentencing Guidelines Manual (“U.S.S.G.”) § 2B3.1(b)(2)(C) based on the same
conduct—brandishing a firearm during a December 4, 2016 robbery. See U.S.S.G.
§ 2K2.4 cmt. n.4 (“If a sentence under this guideline[, which applies to § 924(c),]
is imposed in conjunction with a sentence for an underlying offense, do not apply
any specific offense characteristic for possession, brandishing, use, or discharge of
an explosive or firearm when determining the sentence for the underlying
offense.”).
The sentencing error affected Carbajal’s substantial rights and seriously
affected the fairness, integrity, or public reputation of the proceedings because the
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court sentenced Carbajal under an incorrect Guidelines range. “When a defendant
is sentenced under an incorrect Guidelines range—whether or not the defendant’s
ultimate sentence falls within the correct range—the error itself can, and most
often will, be sufficient to show a reasonable probability of a different outcome
absent the error.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016).
Contrary to the government’s argument, the record does not establish that the
district court would have imposed the same sentence had it applied the correct
Guidelines range. While the district court discussed some of the unfavorable facts
of the case at sentencing, the court did not connect those facts to its decision to
impose a 240-month sentence. Indeed, the government concedes that the court was
guided by the presentence investigation report’s (“PSR”) recommendations, which
impermissibly double-counted the fact that Carbajal brandished a firearm during
the December 4, 2016 robbery. Cf. id. at 1346–47 (explaining that a reasonable
probability of prejudice does not exist if it is “clear that the judge based the
sentence . . . on factors independent of the Guidelines”); see also United States v.
Joseph, 716 F.3d 1273, 1281 (9th Cir. 2013) (explaining that we regularly deem
“the fourth prong of the plain error standard to have been satisfied where . . . the
sentencing court committed a legal error that may have increased the length of a
defendant’s sentence” (quoting United States v. Tapia, 665 F.3d 1059, 1063 (9th
Cir. 2011))). Carbajal therefore establishes that the district court plainly erred in
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its Guidelines range calculation for the § 1951 conviction.
2. The district court did not plainly err by denying Carbajal an
acceptance of responsibility adjustment under U.S.S.G. § 3E1.1. Carbajal’s
argument that the court denied this adjustment because he went to trial is purely
speculative, and no record evidence supports this theory. The district court never
discussed Carbajal’s entitlement to the adjustment, the PSR did not recommend it,
and Carbajal did not challenge that aspect of the PSR.
3. Carbajal’s remaining arguments fail. We are bound by United States
v. Dominguez, which held that Hobbs Act robbery is a crime of violence, 954 F.3d
1251, 1260–61 (9th Cir. 2020), and by Taylor v. United States, which held that
Congress has authority under the Commerce Clause to regulate intrastate drug
theft, 136 S. Ct. 2074, 2077 (2016).
We therefore AFFIRM Carbajal’s convictions, but VACATE his sentence
and REMAND for resentencing.
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