FILED
NOT FOR PUBLICATION MAR 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50090
Plaintiff - Appellee, D.C. No. 2:08-cr-00688-AHM-4
v.
MEMORANDUM *
JOSE LEON, AKA Nene,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Argued and Submitted October 11, 2012
Pasadena, California
Before: EBEL **, WARDLAW, and NGUYEN, Circuit Judges.
Jose Leon appeals the sentence imposed by the district court following his
guilty plea to one count of RICO conspiracy, in violation of 18 U.S.C. § 1962(d),
and one count of conspiracy to distribute cocaine base, in violation of 21 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David M. Ebel, Senior Circuit Judge for the Tenth
Circuit, sitting by designation.
§ 846. Because the district court procedurally erred by incorrectly calculating the
guideline range, see Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc), we vacate Leon’s sentence and
remand to the district court for resentencing.
The district court counted a 2003 conviction in Leon’s criminal history score
under Application Note 4 to U.S.S.G. § 2E1.1, which instructs courts to count
certain RICO predicate acts in calculating the criminal history score. Based on an
offense level of 31 and a criminal history category of III, the district court arrived
at an advisory sentencing range of 135 to 168 months. The court imposed a
sentence of 105 months imprisonment for each count, to be served concurrently,
reducing the 144-month sentence it otherwise would have pronounced by the 39
months that Leon had already served in a related state case.
The district court committed procedural error by incorrectly calculating the
guideline range for the drug conspiracy count. See Gall, 552 U.S. at 51; Carty, 520
F.3d at 993. The 2003 conviction should not have been included in the criminal
history score for the drug conspiracy count under the generally applicable rule,
U.S.S.G. § 4A1.2(a)(1), because the conduct underlying the conviction was
charged and pleaded to as part of the drug conspiracy count. Because calculating a
single guideline range that is correct as to both counts is impossible in Leon’s case,
2
the district court should have independently calculated the applicable guideline
range for each separate count of conviction, in accordance with Application Note 4
to U.S.S.G. § 2E1.1 and U.S.S.G. § 4A1.2(a)(1), respectively. For each of the
counts of conviction, Leon’s offense level remains the same, at 31, as stipulated by
the parties in the plea agreement. For the RICO conspiracy count, the correct
criminal history category is III, resulting in guideline range of 135 to 168 months.
See U.S.S.G. Ch. 5, Pt. A. For the drug conspiracy count, the correct criminal
history category is II, resulting in a guideline range of 121 to 151 months. See id.
In this case, we cannot conclude that the district court’s incorrect calculation
of the guideline range for the drug conspiracy count was harmless. See United
States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir. 2011) (per curiam)
(error is not harmless where the district court may have imposed a different
sentence had it started with the correct guideline range); see also United States v.
Hammons, 558 F.3d 1100, 1106 (9th Cir. 2009); United States v. Zalapa, 509 F.3d
1060, 1064-65 (9th Cir. 2007). After separately calculating the guideline ranges
for each count of conviction, the district court may impose concurrent sentences,
taking into account the 18 U.S.C. § 3553(a) sentencing factors in arriving at each
sentence. In this particular case, the sentence previously selected by the district
3
court falls easily within the applicable guideline range for each count of
conviction.
VACATED and REMANDED.
4
FILED
U.S. v. Leon, No. 11-50090 MAR 15 2013
MOLLY C. DWYER, CLERK
NGUYEN, Circuit Judge, dissenting: U .S. C O U R T OF APPE ALS
Leon’s guilty plea to RICO conspiracy requires the district court to count his
2003 conviction as a “prior sentence” for purposes of calculating his criminal
history. U.S. Sentencing Guidelines Manual § 2E1.1, cmt. n.4 (2011). The
majority instructs the district court to calculate a separate criminal history score
with respect to Leon’s drug distribution conspiracy conviction, excluding his 2003
conviction from the calculation. This approach results in two distinct criminal
history categories and two separate guidelines ranges for the same defendant.
Because the majority’s decision contravenes the plain language and basic structure
of the sentencing guidelines, I respectfully dissent.
U.S.S.G. § 4A1.2 provides general definitions and instructions for
computing a defendant’s criminal history. Generally, only a sentence imposed for
conduct that is not part of the instant offense may be counted as a “prior sentence.”
Id. § 4A1.2(a)(1). However, RICO charges are treated differently. Application
Note 4 to section 2E1.1 plainly requires that conduct charged as part of a “pattern
of racketeering activity” in a RICO conviction be “treat[ed] as a prior sentence
under § 4A1.2(a)(1) and not part of the instant [RICO] offense[,]” even if the
defendant has been previously sentenced for that same conduct. Id. § 2E1.1, cmt.
Page 1 of 4
n.4. The plain language of this provision—and its specific reference to
§ 4A1.2(a)(1)—make clear the Sentencing Commission’s intent to carve out an
exception in cases involving a RICO conviction.1
Further, allowing the RICO conviction to drive the computation of Leon’s
criminal history score, despite the fact of his second conviction for drug
distribution conspiracy, is consistent with the basic structure of the guidelines. The
guidelines not only provide a detailed mechanism for grouping multiple counts into
a single offense level, see id., Ch. 3, pt. D, but also provide a specific methodology
for grouping all criminal conduct into a single criminal history category, see id.,
Ch. 4, pt. A. This methodology calls for the computation of a defendant’s total
criminal history points based on the seriousness of his prior criminal behavior. See
id. § 4A1.1(a)–(e). Under the sentencing guidelines’ structure, once the court
calculates a single offense level and a single criminal history category, it would use
the sentencing table to arrive at a single advisory guidelines range.
The district court correctly calculated the guidelines range for Leon.
Applying Application Note 4, the district court assessed 3 points for Leon’s 2003
conviction because the conduct that led to that conviction was charged as a
1
Application Note 4 acknowledges that an over-count of a defendant’s
criminal history, that is, an “anomalous result in a particular case,” may occur. If
so, “a guideline departure may be warranted.” Id.
Page 2 of 4
predicate act in his RICO conspiracy. The fact that Leon was also convicted of a
non-RICO count should not make any difference in the criminal history calculus,
because Leon can only have one criminal history. The more specific provision of
the guidelines—Application Note 4—trumps the more general language in Section
4A1.2(a)(1). See Bloate v. United States, 130 S. Ct. 1345, 1354 (2010) (stating
that a “specific provision . . . ‘controls one of more general application’”). Further,
where two provisions “are capable of co-existence,” the court must give effect to
both. Morton v. Mancari, 417 U.S. 535, 551 (1974). Construing Application Note
4 as an exception to § 4A1.2(a)(1) is the only way to achieve a single criminal
history category in Leon’s case without nullifying Note 4.
The majority instructs the district court to calculate two separate guidelines
ranges, 135 to 168 months for the RICO conspiracy count, and 121 to 151 months
for the non-RICO conspiracy count. Maj. Op. 3. The majority then states that “the
district court may impose concurrent sentences[.]” Id. (emphasis added.) But does
this mean that the district court also may impose consecutive sentences if
warranted? The majority doesn’t say. Certainly, nothing in the guidelines or
elsewhere supports vesting the district court with such discretion. This lack of
clarity highlights the error of the majority’s analysis.
For these reasons, I would affirm the district court’s calculation of Leon’s
Page 3 of 4
criminal history.
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