FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10160
Plaintiff-Appellee, D.C. No.
v. 2:04-cr-00594-
MARCIAL AVILA-ANGUIANO, ROS-3
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted
April 15, 2010—San Francisco, California
Filed July 13, 2010
Before: Andrew J. Kleinfeld, A. Wallace Tashima and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thomas
10089
10092 UNITED STATES v. AVILA-ANGUIANO
COUNSEL
Dennis K. Burke, John R. Lopez IV, Joan G. Ruffennach,
United States Attorney’s Office, Phoenix, Arizona, for the
plaintiff-appellee.
Jon M. Sands and Saul M. Huerta, Jr., Federal Public
Defender, Tucson, Arizona, for the defendant-appellant.
OPINION
THOMAS, Circuit Judge:
This appeal presents the question, inter alia, as to whether
U.S.S.G. § 2K2.4(b) refers to the statute in effect at the time
the crime was committed or the one in effect at the time of
sentencing. Under the circumstances presented by this case,
we conclude that the statute in effect at the time that the crime
was committed is the proper one to apply. We affirm the judg-
ment of the district court.
I
On May 9, 2004, police officers in Phoenix were contacted
by the Las Vegas Metro Police Department and advised of a
hostage case in the Phoenix area. According to Las Vegas
police officers, a person reported that he had received a tele-
phone call several days earlier from an unknown male stating
that he was an alien smuggler in the Phoenix area and was
holding three of the subject’s relatives hostage. The smuggler
demanded immediate payment of six thousand dollars and
threatened to kill the hostages if payment was not received.
The person was instructed to call the smugglers back when he
obtained the money. Thereafter, several times a day, the
reporting party received phone calls demanding the money.
The reporting party indicated he had talked to the three vic-
UNITED STATES v. AVILA-ANGUIANO 10093
tims on the telephone and they indicated they were fed only
once per day and were not given water. The victims were not
aware of the location where they were being held. The rela-
tive contacted the police. Phoenix police turned the matter
over to immigration officials.
Immigration agents contacted the reporting party in Las
Vegas and arrangements were made for him to travel to Phoe-
nix. The reporting party arrived in Phoenix on the evening of
May 9, 2004, and a recorded telephone call was made to the
smugglers. During the call, the smugglers agreed to lower the
fee to $3,000 and agreed to meet the following morning. The
smugglers advised they were holding over twenty aliens, had
four gunmen, and were located in the area of 67th Avenue and
Camelback Road.
On May 9, 2004, members of the Phoenix Special Assault
Unit and immigration agents forcefully entered the home at
8801 W. Campbell Road in Phoenix. Eleven people were
found huddled together in the back yard of the residence.
Among the eleven people were the three relatives of the
reporting party.
The residence was secured and a search warrant was
obtained and subsequently executed. Agents recovered a
7.62mm assault rifle, a loaded magazine, and 28 rounds of
ammunition, miscellaneous documents, 97 rounds of 9mm
Luger ammunition, and a cellular telephone.
Subsequent interviews of the illegal aliens held at the resi-
dence identified Avila-Anguiano. According to the inter-
views, he answered the phones and made threats to the
families of the aliens being held. He carried a gun and acted
as security to make sure nobody left the room.
On March 5, 2005, a grand jury returned a six-count super-
seding indictment against Avila-Anguiano, charging him with
conspiracy to commit hostage taking in violation of 18 U.S.C.
10094 UNITED STATES v. AVILA-ANGUIANO
§ 1203 (Count 1), hostage taking, in violation of 18 U.S.C.
§ 1203 (Count 2), use and carrying of a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c) (Count 3), and three counts of bringing illegal aliens
into the United States, in violation of 8 U.S.C.
§ 1324(a)(2)(B)(ii) (Counts 4-6). ER 22-25. Avila-Anguiano
proceeded to trial and was convicted on all counts.
On May 17, 2006, the district court entered final judgment
and sentenced Avila-Anguiano to 180 months’ imprisonment.
The sentence consisted of a 120 month sentence as to Count
3, with that sentence to run consecutive to the 60 month sen-
tence for the remaining counts, and those counts running con-
current with each other. Avila-Anguiano was also sentenced
to concurrent terms of supervised release of five years on
Counts 1-3, and three years on Counts 4-6, and a special
assessment of $600.00. Avila-Anguiano appealed.
On appeal, Avila-Anguiano challenged his convictions on
Counts 2-6. This Court found the jury instruction relating to
the charge of bringing illegal aliens to the United States for
financial gain (Counts 4-6) was plainly erroneous, and that the
erroneous instruction affected defendant’s substantial rights.
The court exercised its discretion to correct the plain error,
reversed Counts 4-6 and remanded for a new trial. See United
States v. Avila-Anguiano, 248 F. App’x 823 (9th Cir. 2007).
On remand, Counts 4-6 were dismissed on the Govern-
ment’s motion. Avila-Anguiano filed an unopposed motion
for a new sentencing hearing and a new presentence report,
which the district court also granted. A draft presentence
report stated that under the United States Sentencing Guide-
lines (U.S.S.G.) Section 2K2.4(a)(2), the guideline sentence
for Count 3 was the minimum term of imprisonment required
by the statute, which, under 18 U.S.C. § 924(c)(1)(B)(i)
(2004), was not less than ten years.
Avila-Anguiano filed a Sentencing Memorandum objecting
to, among other things, the sentence as to Count 3 being
UNITED STATES v. AVILA-ANGUIANO 10095
incorrect under the Guidelines. After an extensive sentencing
hearing, the court agreed with the Government and ruled that
it lacked jurisdiction to resentence Avila-Anguiano on Count
3. Alternatively, it ruled that the ten-year mandatory mini-
mum sentence imposed under 18 U.S.C. § 924(c)(1), for con-
duct occurring in 2004, survived the expiration of the semi-
automatic weapons ban. The court sentenced Avila-Anguiano
to 166 months, consisting of concurrent 46-month terms of
imprisonment on Counts 1 and 2, and a consecutive 120-
month term of imprisonment on Count 3, in addition to a spe-
cial assessment of $300 and concurrent terms of five years of
supervised release on Counts 1, 2, and 3. Avila-Anguiano
filed a timely notice of appeal.
We review whether a district court has jurisdiction to resen-
tence a defendant de novo. United States v. Ruiz-Alvarez, 211
F.3d 1181, 1184 (9th Cir. 2000). The legality of a sentence is
reviewed de novo. United States v. Guzman-Bruno, 27 F.3d
420, 422 (9th Cir. 1994). The district court’s interpretation
and application of the United States Sentencing Guidelines is
reviewed de novo. United States v. Upshaw, 226 F.3d 1101,
1102 (9th Cir. 2000). It is procedural error for the district
court improperly to calculate the sentence under the U.S.S.G.
United States v. Tankersley, 537 F.3d 1100, 1109-10 (9th Cir.
2008).
II
[1] Contrary to Avila-Anguiano’s assertion, the district
court had jurisdiction on remand to re-examine the sentence.
“When a defendant is sentenced to multiple counts and one of
them is later vacated on appeal, the sentencing package
becomes ‘unbundled.’ The district court then has the authority
‘to put together a new package reflecting its considered judg-
ment as to the punishment the defendant deserve[d] for the
crimes of which he [wa]s still convicted.” Ruiz-Alvarez, 211
F.3d at 1184 (citing United States v. McClain, 133 F.3d 1191,
1193 (9th Cir. 1998)). Such “unbundling” is often warranted
10096 UNITED STATES v. AVILA-ANGUIANO
because conviction on the reversed counts may have affected
the remaining counts. See McClain, 133 F.3d at 1194 (re-
sentencing on underlying offense was proper where a § 924(c)
conviction was reversed; vacation of the § 924(c) sentence
unbundled the sentencing package and allowed the district
court to put together a new package based on the change in
circumstances). The district court had jurisdiction to reexam-
ine the sentence on Count 3, the § 924(c) conviction.
III
The district court sentenced Avila-Anguiano to 120 months
for the 924(c) conviction because that was the punishment for
using a semi-automatic weapon in the statute at the time the
offense was committed. Avila-Anguiano argues this was an
erroneous application of the U.S.S.G. in place at the time of
the original sentencing, and as a procedurally erroneous sen-
tence, should be set aside. United States v. Amezcua-Vasquez,
567 F.3d 1050, 1053 (9th Cir. 2009).
[2] The Violent Crime Control and Law Enforcement Act
of 1994 (“VCCLEA”) added semi-automatic assault weapons
to the group of firearms punishable by a mandatory minimum
sentence of ten years. Pub. L. No. 103-322, 108 Stat. 1796
(Sept. 13, 1994). Section 110105 of the VCCLEA stated the
provisions of the Act relating to assault weapons were to
expire ten years from the date of its enactment. Id. at 2000.
As a result, the ten-year mandatory minimum provision in
§ 924(c)(1)(B)(i) ceased to apply to semi-automatic assault
weapons after September 13, 2004. Thus, when Avila-
Anguiano committed the instant offenses in May of 2004,
possession of a semi-automatic assault rifle, during and in
relation to a crime of violence, was punishable by a manda-
tory minimum sentence of ten years. After September 13,
2004, a violation of 18 U.S.C. § 924(c)(1) involving a semi-
automatic assault weapon was punishable by five, seven, or
ten years depending on whether the firearm was pos-
UNITED STATES v. AVILA-ANGUIANO 10097
sessed/carried, brandished, or discharged. 18 U.S.C.
§ 924(c)(1)(A)(i)-(iii) (2009).
When Avila-Anguiano was first sentenced on Count 3 in
2006, the applicable guideline, U.S.S.G. § 2K2.4(b), read as
follows: “Except as provided in subsection (c) [inapplicable
here], if the defendant, whether or not convicted of another
crime, was convicted of violating section 924(c) or 929(a) of
title 18, United States Code, the guideline sentence is the
minimum term of imprisonment required by the statute.”
U.S.S.G. § 2K2.4(b). In May of 2006, the sections of 18
U.S.C. § 924(c) applicable to Avila-Anguiano read:
(1)(A) Except as to the extent that a greater mini-
mum sentence is otherwise provided by this subsec-
tion or by any other provision of law, any person
who, during and in relation to any crime of violence
or drug trafficking crime . . . uses or carries a fire-
arm, or who, in furtherance of any such crime, pos-
sesses a firearm, shall, in addition to the punishment
provided for such crime of violence or drug traffick-
ing crime—(I) be sentenced to a term of imprison-
ment of not less than 5 years; (ii) if the firearm is
brandished, be sentenced to a term of imprisonment
of not less 7 years.
18 U.S.C. § 924(c) (2006).
Avila-Anguiano argues that nothing in the Sentencing
Guidelines authorizes interpreting cross-references to statutes
as references to the statutes at the time of the offense. Rather,
he argues, a conventional and common reading of U.S.S.G.
§ 2K2.4(b) indicates that the cross-reference is to the statute
as it exists at the time of sentencing, and not some other time.
We disagree.
Congress enacted its first general saving provision, c. 71,
16 Stat. 432 (1871), to abolish the common law presumption
10098 UNITED STATES v. AVILA-ANGUIANO
that the repeal of a criminal statute resulted in the abatement
of all prosecutions which had not reached final disposition in
the highest court authorized to review them. Warden v. Mar-
rero, 417 U.S. 653, 660 (1974). “Common-law abatements
resulted not only from unequivocal statutory repeals, but also
from repeals with re-enactments with different penalties,
whether the re-enacted legislation increased or decreased pen-
alties.” Id. To avoid such abatements, Congress enacted 1
U.S.C. § 109, the general saving clause, which provides in
pertinent part that the “repeal of any statute shall not have the
effect to release or extinguish any penalty, forfeiture, or liabil-
ity incurred under such statute.” 1 U.S.C. § 109. The Supreme
Court thus stated that the determinative question is whether
the statute includes a “penalty, forfeiture, or liability” which
would be saved from extinguishment by the statute. Warden,
417 U.S. at 660. Specifically, the Supreme Court stated the
statute applies to “bar application of ameliorative criminal
sentencing laws repealing harsher ones in force at the time of
the commission of an offense.” Id. at 661.
[3] Congress indicated “an intent to subject to the General
Saving Statute all legislation that becomes inoperative upon
the occurrence of any legislatively established conditions,
whether the passage of time or otherwise.” United States v.
van den Berg, 5 F.3d 439, 444 (9th Cir. 1993). Thus, given
its purpose and background, the general savings clause is
applicable here. The VCCLEA was a temporary statute that
became inoperative upon the occurrence of a legislatively
established condition—the passage of ten years from the day
of enactment. The termination of the statute, which included
a clear penalty for using a semi-automatic weapon during the
commission of a crime of violence, ameliorated the criminal
penalties for Avila-Anguiano’s actions from the ones in force
at the time of the commission of the offense. Thus, the gen-
eral saving statute applies.
We have applied the general saving statute broadly in crim-
inal and civil contexts. See, e.g., United States v. Garcia, 877
UNITED STATES v. AVILA-ANGUIANO 10099
F.2d 23, 25 (9th Cir. 1989) (holding “special parole” to be a
penalty within the meaning of the saving clause, and finding
later amendments invalidating special parole therefore did not
apply to defendant); United States v. Van Horn, 836 F.2d
1236, 1237 (9th Cir. 1988) (applying 1 U.S.C. § 109 to civil
penalties and forfeitures in the same manner as to criminal
penalties and forfeitures); United States v. Breier, 813 F.2d
212, 214-15 (9th Cir. 1987) (holding the federal saving clause
barred retroactive application of portion of Firearms Owners’
Protection Act which repealed liability to which defendant
was subject).
[4] In United States v. Working, 287 F.3d 801 (9th Cir.
2002), we stated, “In addition, Section 2K2.4 of the Sentenc-
ing Guidelines specifically addresses 18 U.S.C. § 924(c), and
requires that the defendant be sentenced to the term of impris-
onment required by statute. At the time of the offense, 18
U.S.C. § 924(c) provided [violators] . . . be sentenced to
imprisonment for five years.” Working, 237 F.3d at 807
(emphasis added) (internal citations and quotation marks
omitted). Thus, we have previously assumed the cross-
reference in the U.S.S.G. applies to the version of the statute
in effect at the time the offense was committed.
The language in Working, the extensive application of the
general saving clause in this Circuit, and the purpose and
background of the Clause all counsel for application of the
penalty in place at the time Avila-Anguiano committed the
offense.
This reading is also supported by the only other Circuit to
have addressed this question. In United States v. Klump, 536
F.3d 113, 120-21 (2d Cir. 2008), the Second Circuit upheld
the district court’s imposition of a ten-year sentence under 18
U.S.C. § 924(c)(1)(B)(i) when the statute was in effect at the
time of the offense, even though it expired prior to the sen-
tencing, relying on 1 U.S.C. § 109. “Section 924(c)(1)(B)(i)
contains no provision expressly prohibiting its application to
10100 UNITED STATES v. AVILA-ANGUIANO
defendants, like Klump, who were convicted of possessing a
semiautomatic assault weapon before the statute expired.” Id.
[5] Given the statutory nature of the penalty, and that the
general savings clause is explicitly directed at such a situa-
tion, we apply the statute in effect at the time the crime was
committed, rather than the one in effect at the time of sentenc-
ing. Therefore, the district court did not err in sentencing
Avila-Anguiano to the ten-year statutory minimum in effect
when he committed the offense.
AFFIRMED.